FMLA Confidentiality Supersedes OSHA Reporting Requirements Decision stresses value of HR, safety partnership

By Amy Gulati Nov 17, 2014
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At the end of September 2014, the Occupational Safety and Health Review Commission (OSHRC) issued a surprise ruling in favor of an employer who failed to report a workplace injury, vacating a $5,000 citation made by the Occupational Safety and Health Administration (OSHA).

The employer, the United States Postal Service (USPS), claimed they omitted the injury in question from OSHA logs because the employee also qualified for leave under the Family and Medical Leave Act (FMLA) and therefore the injury was protected under the law’s confidentiality clause. Jeff Nowak, attorney at Franczek Radelet in Chicago, declared this “an employer-friendly decision because it means that information uncovered solely through the FMLA process does not in and of itself raise OSHA obligations for the employer, such as reporting on OSHA-required forms.”

Does Not Change Record-Keeping Compliance

While many have read the decision as pro-business, Nowak urged that despite the decision in this case, employers shouldn’t be lulled into a false sense of security; their obligations under both the FMLA and OSHA should be carefully evaluated for each situation.

The legal argument mounted by USPS turned on the interpretation of a key clause in the law pertaining to the FMLA. The clause states that “government officials investigating compliance with FMLA (or other pertinent law) shall be provided with relevant information upon request,” pertaining to employees’ individual medical conditions.

OSHRC contended that if protected health information gleaned from a request for leave was then used to record a workplace injury, the information would spread far beyond government officials to anyone who sees the posted log.

Even though USPS did successfully argue its case, Manesh Rath of global law firm Keller and Heckman, based in Washington, D.C., suggested that privacy rules under the FMLA do not create an exemption from record-keeping requirements. Rath further clarified that “just because it makes a good defense, this decision does not change how employers should comply with the record-keeping rule. This decision only applies to information that an employee provided to a particular co-worker specifically for the purpose of making a request under the FMLA.”

HR, Safety Disconnect

Brad Hammock, partner in the Washington, D.C., office of Jackson Lewis and leader of the firm’s workplace safety and health practice group, offered the following summary of how this case should be viewed by companies intent on compliance, stating, “One of the things that come out of this at a basic level is that HR and safety professionals need to be aware of all the different laws and responsibilities that apply to these types of situations.” Hammock noted that HR and safety “tend to be focused on their own individual areas,” a reality that reaches far beyond compliance to impact customer service, employee productivity and even financial liability.

Rath agreed with Hammock’s description and observed that “HR managers often might not have been trained in their company’s occupational safety and health compliance program, and it is not a substantial part of the curriculum in collegiate human resources programs or [in professional certification].” Rath further emphasized, “There are aspects of OSHA law that apply to all employers, not just those in safety-sensitive industries.”

While this recent OSHRC decision provides plenty of incentive for corporations to coordinate these functions in order to avoid compliance issues, integration between HR and safety has many other advantages, particularly for large organizations.

Aon Hewitt’s 2011 survey on leave management offers some interesting insight into how employers are handling the issue of HR and safety integration. Of the 200 employers who responded to the survey, 79 percent reported that they had integrated their leave of absence administration with their disability programs. However, only 18 percent had integrated their workers’ compensation and occupational disability programs. Tellingly, 51 percent of respondents had partially integrated their programs for work-related injuries, indicating a growing trend. Of those companies that had started integrating their operations in these areas, most were compelled to do so by compliance concerns. Better data and better outcomes were the second and third most compelling factors, respectively.

Referring back to OSHRC’s ruling on the USPS case, Nowak explained, “This decision is a reminder that the best operation almost always is an integrated one, where HR communicates with safety/risk management and vice versa on situations that may implicate OSHA, FMLA or the ADA [Americans with Disabilities Act].”

The following are reasons why integration holds so many benefits, and some ways companies can effectively integrate their HR and safety functions:

Faster and smoother return to work. When it comes to employees returning to work after an occupational injury, HR and safety professionals often find themselves at odds over work restrictions. The risks of handling an employee’s return poorly are manifold, affecting everything from workers’ compensation premiums to morale to perceptions of disparate treatment. As a best practice, teams responsible for managing the return-to-work process should meet regularly to review open cases. While the initial decision on whether an employee can return may not be altered, synergy between HR and safety will ensure that employees are treated fairly, standards are applied consistently and good solutions are found whenever possible.

Better risk management. It is clear that knowledge-sharing between HR and safety will help both sides comply with the laws that overlap their different spheres; in addition, sharing information about trends in workplace injuries is also important. For example, if HR staffers handling leaves of absence or workers’ compensation claims notice an uptick in repetitive motion injuries, this information can and should be discussed with their colleagues in safety. Together, HR and safety can modify job tasks to provide more variety or better ergonomics. If this kind of problem is addressed quickly, it could save a company a significant amount of money in workers’ compensation claims and lost productivity—a business liability nearly equal in importance to legal compliance.

Improved employee experience. The experience of being injured at work can be extremely stressful, and most employees are further taxed by dealing with a confusing matrix of corporate representatives, third-party administrators, and their boss and colleagues.

Companies with truly integrated programs for leave and absence management often establish a system with one point of contact for the employee. Even when this is not possible, frequent communication between departments will ensure that the employee gets the same information from everyone.

The OSHRC decision on the USPS citation is just the most recent example of why HR and safety should partner more closely. Companies that integrate these functions will continue to see the positive impact on their operations.

Amy Gulati, SPHR, GPHR, is an HR business partner at Helios HR, based in Reston, Va.

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