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The Law@Work

Summer 2014

FMLA

Recent FMLA Decision May Result In Leave HoardingBy Jennifer R. Asbrock

Historically, most federal courts have recognized anemployer’s independent right to designate FMLAleave even against an employee’s wishes, so long asthe employer has reasonable verification that theleave was indeed taken for an FMLA-qualifying event.One of the first and leading cases on this subject wasthe Sixth Circuit case of Wysong v. Dow Chem. Co.,503 F.3d 441, 448-50 (6th Cir. 2007), in which a

plaintiff’s FMLA claim for “involuntary leave” was rejected. The SixthCircuit recognized that “[a]n involuntary-leave claim is really a type ofinterference claim” that may arise if “an employer forces an employee totake FMLA leave when the employee [for example] does not have a‘serious health condition’ that precludes her from working.” UnderWysong, an involuntary leave FMLA claim would ripen only when and if(1) the employee sought FMLA leave at a later date and (2) no FMLAleave was then available because it had been wrongfully designated to apast absence taken for a non-FMLA-qualifying purpose. The practicalimplication of Wysong and its progeny in other circuits is that employeeshave not been entitled to “hoard” FMLA leave for later use (and insteaduse only other forms of paid or unpaid leave) if their employer wouldprefer the “FMLA clock” to start ticking after an FMLA-qualifying eventoccurs.

But a recent Ninth Circuit decision may change the landscape ofinvoluntary leave FMLA claims by allowing employees to decline use oftheir FMLA leave (and by prohibiting employers from designating FMLAleave against employees’ wishes), even if an absence is admittedly takenfor FMLA-qualifying events. Escriba v. Foster Poultry Farms, Inc., 2014U.S. App. LEXIS 3571 (9th Cir. Feb. 25, 2014). Notably, Escriba wasdecided by a panel that included a sitting judge from the Sixth Circuitwho actually authored the opinion. The Escriba court appears to expandthe Sixth Circuit’s 2007 holding in Wysong beyond its original limits, so

FMLARecent FMLA Decision MayResult In Leave Hoarding ....................................... 1

PPACAIndependent Contractor orEmployee? Mistakes Now Resultin an Increased Risk of Exposure ........................... 3

HR UpdateWhy Employers Should Prohibitand Address Workplace Bullying .......................... 5

ImmigrationBIS Settlement Highlights Needfor Export Control ComplianceWhen Hiring Foreign Nationals ............................. 7

Workers’ CompensationAbandonment of WorkforcePrecludes TTD Compensation................................ 9

OSHAOSHA Revises Standards forElectric Power Generation,Transmission & Distribution ................................ 11

For more details on any of the topics covered in TheLaw@Work, please contact the authors via the linksat the end of each article or Tim McDonald, editor-in-chief. For information on our Labor & Employmentpractice, please contact Stephen Richey, practicegroup leader.

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that any forced FMLA designation could be unlawful — evenif the designation was for an FMLA-qualifying event. Withthe authoring judge being from the Sixth Circuit, the Escribadecision may signal a change in the law beyond that of theNinth Circuit.

The Escriba court agreed with the employer, accepting thepremise that the plaintiff could — and did — decline to useher available FMLA leave to preserve future FMLA time.Under these circumstances, the employer could lawfullyterminate the plaintiff for failing to comply with theattendance policy when she took leave for an FMLA-qualifying purpose but specifically refused to take FMLAleave. While Escriba was ultimately favorable for theemployer, the obvious implication is that if an employee hasthe power to decline use of FMLA leave, then that right mayalso preclude employers from designating FMLA leaveagainst an employee’s wishes, even if the leave is known tobe for an FMLA-qualifying purpose.

The Escriba court focused on the FMLA regulations, whichexpressly state that the employer “should inquire further ofthe employee if it is necessary to have more informationabout whether FMLA leave is being sought by the employee.”See 29 C.F.R. § 825.302(c) (emphasis added). The courtexplained that “[a]n employer’s obligation to ascertain‘whether FMLA leave is being sought’ strongly suggests thatthere are circumstances in which an employee might seektime off but intend not to exercise his or her rights under theFMLA,” and recognition of this declination right is necessaryfor employers to avoid “liability for forcing FMLA leave onthe unwilling employee.”

The bottom line is that “an employee can affirmativelydecline to use FMLA leave, even if the underlying reason forseeking the leave would have invoked FMLA protection.”The Escriba court applied this principle to find that “[i]f anemployee does not wish to take [FMLA] leave but continuesto be absent from work, then the employee must have areason for the absence that is acceptable under theemployer’s policies, otherwise termination is justified.”While this result may be favorable to employers in somecircumstances, such as in the Escriba case, the flip side of thecoin is that employers will face liability if they involuntarily

designate FMLA leave, a situation that can foster leavehoarding by employees who have large amounts of non-FMLA leave available to them.

Employers should carefully consider the implications ofEscriba before involuntarily designating FMLA leave againstan employee’s wishes, as they might have done in the past.Employers should also review their non-FMLA leave policiesto ensure that they can live with the amount of paid andunpaid leave that employees may have available, if theyrefuse to take their FMLA leave concurrently and insteadchoose to preserve it for later use as a last resort. Notably,the Escriba decision does not interfere with an employer’sright to force employees to exhaust paid leave or workers’compensation leave concurrently with unpaid FMLA leave aspermitted by 29 C.F.R. § 825.207 — but under Escriba suchconcurrent use of leave may only occur if employees chooseto use FMLA leave to begin with. If the current contradictoryholdings are eventually resolved along the lines of Escriba,when employees choose to take only the non-FMLA leave towhich they are entitled, employers cannot force concurrentuse of FMLA leave.

For more information, please contact Jennifer Asbrock orany member of our Labor & Employment group.

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PPACA

Independent Contractor or Employee? Mistakes Now Result in an Increased Risk of ExposureBy Nancy M. Barnes

Companies have long faced exposure topenalties and fines for bringing onworkers as independent contractorswhen the relationship is not clearly onethat meets the requirements of the IRStest or the factors used by theDepartment of Labor (DOL) to identifyindependent contractors. For example,

companies could rest assured that hiring an outside thirdparty to complete a one-time project or provide short-termconsulting services would almost surely meetthe test requirements. But what about thoseinstances where a former employee is broughtin as an independent contractor on anextended basis? Or when an employee retireson Friday and comes back to work in a morelimited role as an independent contractor onMonday, but sits at the same desk, performsthe same functions and reports to the samesupervisor?

Companies frequently consider entering intoindependent contractor relationships whenthey want to bring on workers for a short timeto complete a limited project or assist in atransition phase, or when a former employeerequests such an arrangement. In the past, therisks associated with this choice includedpenalties for failing to withhold payroll taxes,pay unemployment compensation insurance,provide workers’ compensation coverage andpay Social Security contributions. In addition, such a decisioncould have an impact on employee benefit plans andeligibility for pension or retirement benefits. Those risks arenot insubstantial, given that within the last two years alone,the DOL claims to have collected more than $18.2 million inback wages for more than 19,000 workers who weremisclassified as independent contractors, amounting to a 97-percent increase in back wages collected over prior periods.

With the passage of the Patient Protection and AffordableCare Act (PPACA), however, employers face exponentiallyincreased risks if they misclassify independent contractorsand fail to account for them as employees. Moreover, theserisks go far beyond failing to offer health coverage to thoseindividual employees.

Why does the implementation of PPACA add another layerof potential liability for companies wishing to useindependent contractors? Specifically, PPACA requires anyapplicable large employer (an employer with 50 or more full-time employee equivalents)

1to offer health coverage or pay

a penalty beginning in 2015. This is commonly referred to asthe “pay-or-play mandate.” Employers who hover aroundthe 50-employee mark run a substantial risk ofnoncompliance if the reason they are below the 50-employee threshold is misclassification of independent

contractors. The pay-or-play mandate firstbecomes effective in 2015 and requiresapplicable large employers to provideminimum essential coverage that isaffordable and provides minimum value toat least 95 percent of their full-timeemployees and their dependents (70percent of full-time employees and theirdependents in 2015). Failure to do so canresult in enormous penalties.

An employer who fails to offer minimumessential coverage to 95 percent of its full-time employees and their dependents (70percent of its full-time employees and theirdependents in 2015) is subject to a potentialannual penalty in the amount of $2,000times the number of full-time employeesminus 30 (50 in 2015). The penalty amount issubject to inflation in future years.

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The pay or play mandate requires employers to carefullyconsider two questions: Does the possible addition ofmisclassified workers impact the total number of full-timeemployees of the company? Does the possible addition ofthe misclassified workers to the employee roster cause thecompany to offer health care coverage to a number ofemployees that falls below 95 percent (70 percent in 2015)of the total?

1 Employers with fewer than 100 full-time employee equivalents are notsubject to the PPACA requirements discussed herein until 2016.

2 Penalties may also apply in the case of an employer who offers minimumessential coverage that is either unaffordable or fails to provide minimumvalue.

The implementationof PPACA adds anotherlayer of potential liabilityfor companies wishingto use independentcontractors.

The Law@Work Summer 2014

If the answer to these questions is yes, then the companyshould consider the risks associated with being subject tosignificant penalties for independent contractormisclassification under PPACA.

Obviously, proper classification is the key to avoiding thesepenalties, and employers can take steps proactively to putthemselves in the best position to defend a designation ofindependent contractor should a question arise.Classification of a worker as either an employee or anindependent contractor is based largely on whether thecompany has the right to direct and control the performanceof services. Substantial case law has developed from casesinvolving employers, workers and the IRS.

The IRS focuses primarily on the “level of control” a companyexercises when determining whether a worker is properlyclassified as an independent contractor. The 20 factors usedto evaluate the right to control and the validity ofindependent contractor classifications include, among otherthings: training, degree of business integration, control ofassistants, continuity and length of relationship, flexibility ofschedule, ability to provide services to others, method ofpayment, provision of equipment, payment of expenses,termination provisions and the ability to realize a profit on

the work. Of course, such an analysis is necessarily fact-intensive and will depend on the circumstances of each case.In addition, other federal agencies and the states haveslightly different tests they may use to determine the properclassification of a worker.

The bottom line is that employers must now carefullyevaluate the risks associated with the independentcontractor designation and remain cognizant that potentialexposure is not limited solely to fines or penalties related tothe worker in question. Rather, if the designation puts theemployer in a precarious position with respect to PPACAcompliance, the better course may be to treat the worker asan employee and avoid possible penalties under PPACA. If acompany decides to stick with an independent contractordesignation, it should take steps to ensure the relationshipmeets most of, if not all, the factors considered underfederal and applicable state laws.

For more information, please contact Nancy Barnes or anymember of our Labor & Employment group.

Other Recent Publications

Government Contractors Face Additional Equal Pay Obligations

Ohio Approves Workers’ Comp Initiatives Including $1 Billion Rebate

SOX Protection Expanded to Contractor’s Employees Who “Blow the Whistle”on Contractor’s Publicly Held Clients

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HR Update

Why Employers Should Prohibit and Address Workplace BullyingBy Heather M. Muzumdar & Megan S. Glowacki

Workplace bullying is not a newphenomemon. However, like the issue ofbullying in schools, bullying at work hasreceived more attention recently. A primaryreason: social media. Because of socialmedia, the act and effects of bullying canextend beyond the four walls of the office.

Cyber bullying can take place when anemployee posts on a blog, uses socialmedia, or sends emails or text messages.Such off-duty, sometimes anonymous cyberbullying can permeate a workplace andcreate legal risks, though it is much morechallenging for employers to address.

At the same time, employees who are victimized by bullying atwork are lashing out against employers in social media, onlineforums and blogs. This also has the business community’sattention, as defamation and reputational damage becomeseasier to accomplish and harder to combat.

Currently, federal and state discrimination laws prohibitbullying or otherwise harassing an employee because of theindividual’s race, gender, disability, age, religion or othercharacteristic protected by federal or state law. However, notunlike the public demands by victims, parents and schools forefforts, support and tools to prevent and stop school bullying,employees and action groups are demanding a similarresponse from employers and legislators.

Over the last few years, nearly half of all states have at leastconsidered whether to pass some sort of workplace bullyinglegislation. Legislation is pending in several states andgenerally seeks to prohibit workplace bullying even in theabsence of a protected characteristic. The difficulty, of course,is designing a law that is workable, that employers canreasonably police and enforce, and that won’t result inflooding the court system with every employee disagreement.

Yet, even if no state or federal workplace bullying law ispassed, there is ample reason for employers to be proactiveand address workplace bullying right now.

What Is Workplace Bullying?

The first step to addressing bullying is recognizing it. Althoughwe know it exists, defining workplace bullying can be difficult.Workplace bullying can include repeated verbal abuse (such asbeing shouted or sworn at), unwarranted criticism, worksabotage (intentionally interfering with the ability to get workdone resulting in performance deficiencies), exclusion orisolation, and other repeated or unreasonable conduct orbehavior, whether verbal or nonverbal, that is threatening,humiliating or intimidating and creates a risk to health andsafety. Often it is the repetitive nature of the behavior thatcrosses the line into bullying.

In a 2012 CareerBuilder survey, 35 percent of workersreported that they have felt bullied at work, and 16 percent ofthose workers reported suffering health-related problems as aresult. While 17 percent of workers reportedly quit their job toescape bullying, the survey revealed that the vast majority ofworkers suffer in silence. Employees not only report feelingbullied by their immediate supervisor, but also by co-workers,customers and higher management.

Why Employers Should Act

Employers should take steps to stop workplace bullying forseveral business and legal reasons.

• Bullying may be illegal harassment or retaliation.Employers know that bullying an employee becauseof a legally protected characteristic, or in response towhistleblower or ethical complaints, is illegal. It isdifficult to prevent and correct potential illegalharassment and retaliation claims while turning ablind eye to the very type of conduct that can beconstrued as harassment or retaliation under certaincircumstances. Disgruntled employees can allegeillegal conduct even in the absence of a protectedclass or activity. Employers are then left to defendthese claims by arguing the supervisor is disrespectfulto many employees, regardless of protectedcharacteristics, an argument that is difficult to proveand is not readily accepted by juries. An employer canspend substantial amounts of time, energy and legalcosts responding to demand letters, charges of

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How to Address Workplace Bullying

Here are some quick tips to prevent and address bullying inyour workplace:

• Add anti-bullying policy language. Clearlycommunicate the company’s anti-bullying stance,include information on how to report bullying andunderscore that employees will not be retaliatedagainst for reporting bullying. Policies should beclosely reviewed and not overly broad. Employersmust be careful to avoid prohibiting employeesfrom engaging in certain communicationsprotected under the National Labor Relations Act.

• Training. As with workplace harassment, simplyhaving an anti-bullying policy isn’t enough.Employers should conduct training with employeesand supervisors to discuss and provide examples ofappropriate workplace behavior and to reinforceexpectations.

• Implement reporting and investigationmechanisms. Effective anti-bullying policies requireimplementation. An employer’s investigation ofallegations of bullying should be prompt,comprehensive and documented.

• Enforcement. The terms of an anti-bullying policymust be enforced. Employees who offend the anti-bullying policy should be subject to discipline, up toand including termination. When applicable,managers and supervisors should be heldaccountable for their failure to intervene ormonitor their subordinates.

discrimination and defending litigation, even whereno viable legal claim exists.

• Bullying can be a sign of or lead to workplaceviolence. Even if not illegal, workplace bullying shouldbe prohibited because of the potential link toworkplace violence. A bully’s verbal and nonverbalconduct can be a sign of aggression and disregard forthe well-being of others. A bully’s unchecked behaviormay escalate into physical violence. On the flip side,victims of repeated bullying in the workplace couldretaliate with violence in the workplace. In eithercase, the employer may face claims of negligent hiringor retention, and injuries would be reportable underfederal and state worker safety laws.

• Effects on an employee’s health. It is welldocumented that bullying can take a toll on aperson’s emotional and physical health, and can havelasting effects. Bullied employees can suffer not onlyfrom mental health conditions, such as anxiety,depression and sleep disorders, but also physicalmanifestations of emotional stress. These physicaland mental conditions can result in increased risks ofaccidents and injuries, including at the workplace.

• Effects on employer productivity and costs. Bullyingcan also affect an employer’s bottom line. Manyemployers recognize that a toxic work environmentresults in loss of productivity and high turnover, andin turn, added recruiting and training costs. In cases ofworkplace bullying, costs and productivity areaffected by increased workers’ compensation claims,increased health insurance claims and requests formedical leaves of absence or workplaceaccommodation under federal or state laws.

• Company reputational harm. More now than ever,employees are taking to the Internet to voice concernover the their treatment and that of their co-workers.Depending on the circumstances, the employee’sconduct may be legally protected under the NationalLabor Relations Act (even if the employer is notunionized), and there is little the employer can do.Other times, the conduct is not protected, yetemployers still suffer from reputational harm even ifthey are eventually successful in having the posttaken down. The best way to prevent an employeefrom broadcasting their employment concerns isproviding them multiple ways to report their concernsinternally and effectively and promptly investigatingand responding to their concerns, and demanding aculture of respect.

In our experience, promoting a culture of mutual respect anddignity in the workplace can go a long way toward improvingmorale and productivity of employees and minimizing thenumber and risk of legal claims.

For more information, please contact Heather Muzumdar,Megan Glowacki or any member of our Labor & Employmentgroup.

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Immigration

BIS Settlement Highlights Need for Export Control Compliance When Hiring Foreign NationalsBy James A. Losey & Sarah C. Flannery

On February 24, 2014 the U.S.Department of Commerce’s Bureau ofIndustry and Security (BIS) announced a$115,000 civil settlement with Intevac,Inc. of Santa Clara, California forviolations of the Export AdministrationRegulations (EAR), including allowing

certain non-U.S. national employeesaccess to controlled technology. Thesettlement emphasizes the need forcompanies to understand and complywith export rules when hiring non-U.S.nationals.

The Intevac Case

Over a five-month period in 2007, Intevac gave a Russiannational employed at its Santa Clara facility access to EAR-controlled drawings and blueprints without first obtaining anexport license, violating the EAR’s so-called “deemed export”rule. Intevac later applied for an export license from BIS, butwhile the license application was pending, Intevac continuedto allow the Russian national access to the controlledtechnology on the company’s servers. In its penaltyassessment, BIS considered Intevac’s knowledge of thesesubsequent releases to be an aggravating factor. In addition,in 2010 Intevac allowed a Chinese national working at itssubsidiary in Shenzhen, China to access EAR-controlledtechnology stored on an Intevac server in Santa Clara.

Deemed Export Rules

Under the EAR, the release of controlled technology to aforeign national in the United States is a “deemed export” tothat foreign national’s home country. The deemed exportviolates the EAR if an export license would have beenrequired to actually export the technology to the foreignnational’s home country. This rule applies even if the foreignnational is an employee of a U.S. company working in theUnited States under a valid employment visa.

U.S. Immigration Certification Requirements

On February 20, 2011 deemed export certificationrequirements took effect for the U.S. Citizenship &Immigration Service (USCIS) Form I-129 application. Form

I-129, used by companies sponsoring foreign nationalemployees for most employment-based visas, requires a“Certification Regarding the Release of ControlledTechnology or Technical Data to Foreign Persons in theUnited States.” The form now requires employers to certifythey have reviewed the export control requirementsapplicable to that individual and determined whether adeemed export license is necessary. If a license is required,the employer must certify that it will restrict the individual’saccess to the controlled technology until the license isobtained. Falsely certifying that the foreign national will nothave access to controlled technology on Form I-129 is aseparate violation from any underlying deemed exportviolation.

Lessons Learned

While the EAR’s deemed export rules have been around foryears, the Intevac settlement shows that BIS still takes theserules seriously and will actively enforce them. This, coupledwith the USCIS certification mandate, makes it imperative toassess potential export control requirements when applyingfor a work visa on behalf of a foreign national employee. Thecompany’s legal department or corporate compliance officershould be consulted and a determination made as to

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whether an export license is required, and/or whetherinternal information access restrictions are needed.

Moreover, the Intevac case emphasizes the general need forcompanies with controlled technical information – whetherstored on servers or in physical files – to have complianceprocedures in place to mitigate the risk of deemed or actualexport violations. Such information – which may becontrolled under the EAR, the International Traffic in ArmsRegulations (ITAR) or U.S. Department of Defenseregulations – should be stored in clearly labeled files towhich access can be selectively controlled. An access recordshould be kept and audits conducted periodically.

Finally, because many employees might find suchprocedures to be onerous – or, at the least, a diversion fromtheir core duties – it is vital that all affected personnelreceive training that explains the procedures, emphasizesthe importance of compliance and notes the implications ofnoncompliance.

For more information, please contact Jim Losey, SarahFlannery or any member of our Labor & Employment group.

Reproduced with permission from Human Resources Report,32 HRR 509 (May 19, 2014). Copyright 2014 by The Bureauof National Affairs, Inc. (800.372.1033) http://www.bna.com

WHAT THE MARKET SAYS ABOUT THOMPSON HINE

The Law@Work Summer 2014

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Workers’ Compensation

Abandonment of Workforce Precludes TTD CompensationBy Philip B. Cochran

In State ex. rel., Roxbury v. IndustrialCommission (2014), 138 Ohio St. 3d 91,the Supreme Court of Ohio has reiteratedthat in the context of a workers’compensation claim, where an injuredworker in Ohio voluntarily abandons theworkforce for reasons unrelated to his orher industrial injury, the injured worker is

not entitled to receive temporary total disabilitycompensation (TTD). TTD is designed to compensate aninjured worker for his or her lost wages resulting from anindustrial injury. In this case, the Supreme Court of Ohioexpanded the voluntary abandonment defense to include afact analysis as to whether the injuredworker’s acts and omissions establishthat he or she abandoned the labormarket, thus precluding TTD.

Here, Ms. Roxbury (claimant) sustained acompensable injury in 2004. Her claimwas allowed for lumbar sprain andrelated low back injuries. She did notwork after the date of injury. She initiallyreceived TTD for her low back injuriesuntil July 10, 2006, when the IndustrialCommission held that her physicalinjuries had reached maximum medicalimprovement and denied further TTD.The claimant appealed the terminationof TTD but later withdrew her appeal.

In 2007, the claimant filed a motion toadd a psychological condition (dysthymicdisorder) to her claim. In this motion, shealso requested an award of TTD as a result of thepsychological condition. A hearing officer allowed thecondition of dysthymic disorder but disallowed her requestfor TTD, relying upon a medical report that opined theinjured worker’s depression (dysthymic disorder) was mildand not temporarily totally disabling.

The claimant later filed an application for permanent andtotal disability, alleging that her allowed conditions renderedher incapable of sustained remunerative employment. TheIndustrial Commission denied her application, finding thatnone of her allowed conditions rendered her unable to work.

The claimant later filed another request for psychologicalTTD supported by a new report from a different physician.The Industrial Commission denied TTD, relying upon a reportby a psychologist that opined the claimant’s dysthymicdisorder was not disabling. The claimant filed a request for awrit of mandamus with the Tenth District Court of Appeals.The Court of Appeals denied the writ, holding that theIndustrial Commission properly denied TTD, finding that theclaimant voluntarily abandoned the workforce. The claimantappealed this decision to the Supreme Court of Ohio.

The Supreme Court affirmed the denial of TTD. It held thatvoluntary abandonment is a question of fact for the

Industrial Commission and that theCommission properly found the facts hereestablished the claimant voluntarilyabandoned the workforce. First, theclaimant had acknowledged she had notworked since the date of injury in 2004.Her physical injuries (lumbar spine) weredetermined to have reached maximummedical improvement in July 2006,resulting in the termination of TTD.Second, considering all allowed conditions,the Industrial Commission denied TTD,finding the claimant capable of sedentarywork regarding her physical conditions andcapable of any work regarding herpsychological conditions.

The Supreme Court of Ohio also reliedupon the fact that the IndustrialCommission denied TTD regarding theinjured worker’s psychological condition

three times, finding that her allowed dysthymic disorder wasnot a disabling medical condition. Last, the court noted theclaimant neither sought other work nor attemptedvocational rehabilitation from the 2004 date of injuryforward. Considering all of the facts above, the court heldthat the Industrial Commission properly concluded theclaimant voluntarily abandoned the workforce for reasonsother than her allowed industrial injuries. Her lack of wages,therefore, was not the result of her psychological condition,and the writ of mandamus was properly denied.

The Supreme Court of Ohiohas reiterated that in thecontext of a workers’compensation claim, aninjured worker in Ohio whovoluntarily abandons theworkforce for reasonsunrelated to his or herindustrial injury is notentitled to receivetemporary total disabilitycompensation.

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The voluntary abandonment defense continues to evolve inthe context of a workers’ compensation claim. The defenseis established when an injured worker is terminated forviolation of a known written work rule. Voluntaryabandonment also applies when an injured workervoluntarily retires, provided the retirement is not injury-induced. In Roxbury, the Supreme Court of Ohio held thatthe voluntary abandonment defense also applies when factsand circumstances establish that the injured workerabandoned the entire labor market for reasons unrelated tohis or her work-related injury.

For more information, please contact Philip Cochran or anymember of our Labor & Employment group.

Reflections on Diversity

A diversity lens acts as a filter affecting the way people view the world

and interact with others. It is through this lens we see beyond our own

perspectives to embrace different ideas and diverse voices.

“At Thompson Hine, we understand diversity is more than statistical data.

It is, in fact, crucial to our ability to conduct business in today’s

increasingly interconnected world. Embracing an inclusive environment is

simply the smart thing to do.” – Robyn Minter Smyers, Partner and Chair,

Diversity & Inclusion Initiative

Access this year’s report here.

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OSHA

OSHA Revises Standards for Electric Power Generation, Transmission & DistributionBy M. Scott Young

More than 40 years after theOccupational Safety and HealthAdministration (OSHA) last issuedstandards for electric power generation,transmission and distribution, revisionswill go into effect on July 10, 2014. Someof the compliance requirements relatingto the revised standards involving fall

protection, minimum approach distances and arc-flashprotection go into effect on April 1, 2015. OSHA last issuedrules for electric power generation, transmission anddistribution in 1972.

Employers who operate or maintain electric powergeneration, transmission and distribution lines or equipmentwill be impacted by these revised standards. Also, employerswith employees who perform construction work on electricpower transmission or distribution lines or equipment will besubject to these revised standards. Construction workcovered by these new standards includes the erection ofnew electric transmission and distribution lines andequipment, and the alteration, conversion and improvementof existing transmission and distribution lines andequipment. “State Plan” states must have job safety andhealth standards that are “at least as effective as” the newfederal OSHA standards, and have the option to promulgatemore stringent standards.

OSHA issued these new standards because it found that itspreviously enacted standards from 1972 were out of date.These revisions to OSHA’s 40-year-old standards for electricpower line work are intended to make them more consistentwith the corresponding general industry standards and alsorevise the construction and general industry requirements.General industry and construction standards for electricalprotective equipment are also revised under these newrules. The revisions to the construction standards makethem more consistent with the general industry standards,with the purpose of enhancing worker safety.

OSHA estimates that its revised standards will result in anestimated monetized benefit of $179 million annually, withnet benefits equal to about $130 million annually. Inaggregate, OSHA estimates that the annualized cost foremployers to comply with these new standards will beapproximately $47 million to $50 million. OSHA estimatesthat the new standards will save nearly 20 lives and prevent118 serious injuries annually.

Depending on the circumstance, the revised standardsrequire one of three types of fall protection:

• Personal fall arrest system. A system used to arrestan employee in a fall from a working level.

• Fall restraint system. A fall protection system thatprevents the user from falling any distance.

• Work-positioning equipment. A body belt or bodyharness system rigged to allow an employee to besupported on an elevated vertical surface, such as autility pole or tower leg, and work with both handsfree while leaning.

The new standards also require employers to protect anemployee working at heights of more than 1.2 meters (4feet) on a pole, tower or similar structure with appropriatefall protection, as specified in the revised standards.

In addition, the revised standards include minimumapproach distance requirements that employees mustmaintain from energy-exposed energized arcs. Employersare required to base those distances upon formulas set forth

The Law@Work Summer 2014

This newsletter may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. Thispublication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the informationcontained in it without professional counsel.This document may be considered attorney advertising in some jurisdictions.© 2014 THOMPSON HINE LLP. ALL RIGHTS RESERVED.

by the revised standards or follow default minimumapproach distance tables contained in the revised standards.

Furthermore, the revised standards provide requirementsrelating to what an employer must do to protect employeesfrom hazards posed by flames and electric arcs. Theserequirements include:

• Assessing the workplace to identify employeesexposed to hazards from flames or electric arcs;

• Making reasonable estimates of the incident heatenergy of any electric-arc hazard to which anemployee would be exposed;

• Ensuring that employees exposed to hazards fromflames or electric arcs do not wear clothing that

could melt onto their skin or that could ignite andcontinue to burn when exposed to flames or theestimated heat energy;

• Ensuring that the outer layer of clothing worn by anemployee is flame-resistant under certainconditions; and

• Subject to certain exceptions, ensuring thatemployees exposed to hazards from electric arcswear protective clothing and other protectiveequipment with an arc rating greater than or equalto the estimated heat energy.

For more information on these new OSHA standards orother matters involving OSHA, please contact Scott Young orany member of our Labor & Employment group.