Tag: retaliation

New York Whistleblower Laws

New York Whistleblower Laws

New York is an at-will employment state, which theoretically means employers can terminate employees for any reason at any time. However, there are statutory exceptions. These include whistleblower laws intended to encourage employees to report wrongdoing and protect whistleblowers from retaliation.

What Is a Whistleblower?

The origins of the term “whistleblower” date back to the 19th century. The word is based on the use of a whistle to alert a crowd about a dangerous situation or illegal action. The phrase eventually became associated with police because they often used a whistle to alert the public or fellow police officers.

New York has several statutes that provide whistleblower protections. The most widely applicable is New York Labor Law section 740. Under this law, a whistleblower is an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.”

Employees who testify concerning potential misconduct or refuse to participate in illegal activity would also receive whistleblower protection.

Internal Reporting

The majority of whistleblowers report internally to their employer. These whistleblowers report to fellow employees, superiors, or anonymous reporting mechanisms, such as hotlines. These hotlines may help foster a positive workplace culture where employees are more likely to report potential misconduct because they do not fear retaliation.

External Reporting

On the other hand, external whistleblowers report misconduct to entities outside the workplace. These entities include lawyers, the media, police departments, watchdog agencies, or government agencies. Occasionally, these external whistleblowers are motivated by a monetary reward.

Healthcare Whistleblowing

New York Labor Law section 741 provides special rules concerning the healthcare industry. The law is most concerned with “improper quality of patient care” and is intended to encourage the reporting of these types of situations.

The law defines “improper quality of patient care” as “any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient.”

Government Employees

New York Civil Service Law section 75-b provides additional whistleblower protections for employees of state and local governmental entities.

Under this law:

“A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.”

In some scenarios, public employees may also have Constitutional free speech protections regarding whistleblowing.

What Constitutes Retaliation?

Employers cannot retaliate against whistleblowers for reporting misconduct. Retaliation occurs when an employer takes an adverse employment action against a whistleblower in response to their whistleblowing. Examples of adverse employment actions include firing, giving undesirable assignments, and harassment.

You can read more about preventing retaliation generally here.

Consequences of Retaliation Against Whistleblowers

Employees who have been unlawfully retaliated against may bring a civil action against their former employer. If the court finds in favor of the employee, it may order relief including:

  • Injunctions to stop further violations;
  • Reinstatement to the employee’s former position or an equivalent position;
  • Reinstatement of full fringe benefits and seniority status;
  • Compensation for lost wages and benefits; and
  • Employer payment of reasonable costs, disbursements, and the employee’s attorney fees.

The exact remedies will depend on the specific legal claims and whistleblower laws at issue in a particular case.

What Can Employers Do?

Obviously, the best approach would be to avoid legal infractions or other activity that would cause employees to consider blowing the whistle. But, even then, some employees might still believe that inappropriate conduct is occurring within their workplace.

It is generally illegal for employers to require their employees to report potential misconduct internally before informing outside agencies. However, employers can encourage this approach by encouraging internal reporting, providing anonymous mechanisms, and promising to protect whistleblower confidentiality.

More heavily regulated businesses may be at greater risk of facing allegations from whistleblowers. In addition to the general New York laws discussed here, some industry-specific laws and regulations at both the state and federal level include whistleblower protections.

It is always important to confer promptly with an experienced attorney to determine the exact legal parameters and appropriate responses when facing a whistleblower situation.

Post-Accident Drug Testing OSHA

OSHA Permits Post-Accident Drug Testing

On October 11, 2018, the U.S. Occupational Safety and Health Administration (OSHA) issued a clarification of its position on post-accident drug testing. The new guidance addresses commentary that OSHA included with a May 2016 anti-retaliation rule. OSHA now asserts that the rule “does not prohibit . . . post-incident drug testing.”

[Note that the Drug-Free Workplace Act does not require any employers to drug test employees.]

29 C.F.R. § 1904.35

That’s the citation for the rule OSHA amended on May 12, 2016, to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses.

Specifically, 29 C.F.R. § 1904.35(b)(1)(iv) states: “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

The rule itself does not mention drug testing. But OSHA’s 2016 commentary accompanying it did.

At that time, the agency wrote: “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” It then went on to say, “this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

OSHA’s 2016 commentary included the following supposed standard: “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

2018 “Clarification”

It’s hard to argue that OSHA’s recent announcement clarifies the above language from the 2016 commentary. Instead, it interprets the text of the rule itself, which never mentioned drug testing in the first place. Obviously, the current administration in D.C. has a different take on this issue than the previous one.

In the October 11, 2018 memorandum, OSHA explains that “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

To emphasize this change in position, the new OSHA directive adds that “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” It then specifically identifies four OSHA documents from October and November 2016.

When to Conduct Post-Accident Drug Testing

OSHA’s new guidance memorandum approves of the following forms of drug testing:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

The last item in this list seems to set a new standard for post-accident drug testing under the anti-retaliation rule. It essentially replaces the 2016 “likely to have contributed to the incident” and “accurately identify impairment caused by drug use” analysis with a more straightforward permissive approach. That is, OSHA now suggests that post-accident testing is presumptively lawful. But if the employer only tests the employee who reported the injury, then this would imply a retaliatory purpose.

In other words, the takeaway for employers is that you generally can drug test employees following a workplace incident. But don’t do it in a way that only targets the reporter, hence discouraging people from reporting safety issues.

Employers May Revisit Post-Accident Drug Testing Protocols

Companies that changed their practices in response to the 2016 rule and OSHA commentary may now reconsider their approach.

To be clear, OSHA’s new interpretation does not require employers to conduct post-accident drug testing. Rather, the clarification relieves employers of much of the concern and uncertainty that the 2016 OSHA commentary created.

Employers who do utilize post-accident drug testing should do so rationally and consistently. Ad hoc or inconsistent testing could lead employees to complain of retaliation under OSHA rules or other legal authority.

 

New York employers should also read “Drug Testing New York Employers.”

 

Firing Employees Medical Leave

Firing Employees on Medical Leave

Can you legally do this? Yes . . . maybe. Firing an employee on medical leave is a tricky proposition. But sometimes it is appropriate. Even then, it might not go over well.

Let’s review some of the legal issues and practical considerations that come up in this area.

Legal Protections

The full range of legal protections for employees on medical leave depends on where the employee works. But the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) apply throughout the United States. We’ll focus on those laws here, but you should also consider any similar state or local laws that may apply.

ADA

The ADA covers all employers with at least 15 employees. It prohibits discrimination against qualified individuals with a disability. It also requires employers to provide reasonable accommodations to employees with disabilities. Reasonable accommodations may include unpaid medical leave. (Read more: Is Time Off a Reasonable Accommodation?)

Just as refusing time off to an employee with a disability might violate the ADA, so might ending their employment while they’re out of work.

FMLA

Employers with 50 or more employees must allow eligible employees to take up to 12 weeks of unpaid leave per year for specific reasons. These reasons include the employee’s own serious health condition.

Most employees on FMLA leave have the right to return to work at the end of their leave. It is also unlawful to retaliate against an employee for taking FMLA leave. These protections may come into play if an employer seeks to end the employment of someone on FMLA leave.

What You Can’t Do

Employers can’t fire a qualified employee because of their disability . . . . Unless the disability prevents them from performing the essential functions of their job despite any reasonable accommodations.

There are many reasons why managers may get frustrated with employees who seem to never be at work. But there has to be more than just not wanting to deal with someone with a medical condition.

Employers covered by the FMLA also shouldn’t automatically fire an employee who doesn’t return at the end of 12 weeks of FMLA leave. An employee with a medical condition might still be eligible for additional time off as a reasonable accommodation under the ADA.

When Could You Fire an Employee on Medical Leave?

There aren’t many absolutes here. Each situation is different and may raise unique concerns, but here are some times when an employer might be able to separate the employment of someone on medical leave:

  • The business is closing, so everyone is losing their job.
  • You are eliminating the person’s position–especially if others not on leave will also lose their jobs without being replaced.
  • The employee has falsified the medical basis for leave.
  • You’ve discovered misconduct that warrants termination regardless of leave status.
  • The employee won’t be able to return for an extended period of time, such that continuing employment is not a reasonable accommodation or would impose an undue hardship.

The above list roughly moves from straightforward to more complicated analyses regarding employees on medical leave. In particular, the last situation involves the complex evaluation of when an accommodation is no longer reasonable–which seldom has an easy answer.

Putting It All Together

Employers should understand that employees are not automatically untouchable just because they’re on medical leave. But, it adds a factor to consider before making the termination decision. The situations posed above are only some of the more common that could occur. As each case raises its own nuances, employers should consult with experienced employment counsel when faced with these decisions.