Occupational Safety and Health

An Update on OSHA’s Electronic Injury and Illness Reporting Rules

July 19, 2017

By Michael D. Billok

We have received a number of questions about the current status of OSHA’s new electronic injury and illness reporting rule, upon which we have previously reported here and here.  There is, yet again, more to report!

First things first:  the implementation date of the rule has been delayed from July 1, 2017, to December 1, 2017.  The reason for the delay is to give the new administration an opportunity to determine whether any changes to the rule are warranted as well as to give employers time to familiarize themselves with electronic reporting.  The Department of Labor did seek additional comments as part of the process.  We will keep you posted regarding any further delays in the implementation of, or changes to, the rule.

Second, the rule will likely go into effect in some form:  OSHA announced that its website at which employers can submit their Form 300A electronically will be live as of August 1 here.  All employers must submit their 2016 Form 300A via the website before December 1, 2017.

What is the Current Status of OSHA's Injury and Illness Reporting Rule?

February 21, 2017

By Michael D. Billok

As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule.  The agency delayed enforcement of the rule until December 1, 2016.  Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect.  Unfortunately, the injunction was denied and the rule did go into effect on December 1.  However, the rule is still being challenged.  Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. One of the more troubling aspects of the rule was not in the rule itself, but in the preamble to the rule -- OSHA's stated position that it would consider blanket rules that require drug testing of employees after any accident to be unreasonable, i.e., to discourage the reporting of injuries and illnesses.  Without announcement, OSHA issued guidance on its position late last year that should ameliorate employers’ concerns.  Simply put, employers do not have to have reasonable suspicion of drug use, but reasonable suspicion that drug use could have led to the accident causing illness or injury.  OSHA provides the following examples: "Consider the example of a crane accident that injures several employees working nearby but not the operator.  The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition.  In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness.  Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident.  However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv). Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv).  For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.  And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test." So, if an employee on a scaffold dropped a piece of lumber, striking an employee below in an area the employee was allowed to walk, it would not be proper to test the employee below, but it would be proper to test the employee on the scaffold, because operator error -- and possible drug impairment -- could have contributed to the accident. It still remains to be seen whether this rule will be rescinded through the Congressional Review Act or vacated through the lawsuit filed in the Northern District of Texas, but in the meantime, employers should make sure their policies regarding injury and illness reporting comport with the new requirements.

OSHA Announces Feral Cats Are Not Vermin

October 13, 2016

By Patrick V. Melfi
On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.”  A summary of the proposed changes can be accessed here.  The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).  On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.

OSHA Penalties Increased in the Heat of August

August 9, 2016

By Michael D. Billok
Last November, we issued an update alerting readers of this blog that in last fall’s budget bill, the Occupational Safety and Health Administration had been given authorization to increase its penalties by up to 82%, to account for inflation for several decades.  In order to implement the increase, OSHA had to issue an interim final rule by July 1 that would go into effect by August 1.  As expected, OSHA has indeed taken advantage of this authorization to increase its penalties. As of August 1, OSHA’s new maximum penalty structure is as follows:
  • Other-than-Serious violation:  increased from $7,000 to $12,471;
  • Serious violation:  increased from $7,000 to $12,471;
  • Repeat violation:  increased from $70,000 to $124,709;
  • Willful violation:  increased from $70,000 to $124,709; and
  • Failure-to-Abate violation:  increased from $7,000 to $12,471 per day.
These penalties are a significant increase, and when these new maximum penalties are combined with OSHA’s new enforcement priorities, they may result in citations with total penalty amounts that are higher than previously common.

Employers Need to Develop an Action Plan to Deal With Workplace Violence

May 22, 2016

By Katherine Ritts Schafer
If the recent and tragic shootings at an office holiday party in San Bernardino, California, and at a lawn care company in Kansas have taught us anything, it is that these unfortunate incidents of workplace violence are becoming more and more commonplace.  In addition to the devastating human cost of these tragedies, workplace violence can also bring significant liability for employers. According to the Occupational Safety and Health Administration, workplace violence is responsible for $55 million in lost wages each year.  When the cost of lost productivity, legal expenses, property damage, diminished public image, and increased security are factored in, workplace violence costs the American workforce approximately $36 billion dollars per year. Among other sources of potential liability, employers may be cited by OSHA for violating the “General Duty Clause” of the OSH Act, which requires employers to maintain workplaces free from “recognized hazards” that are likely to cause death or serious physical harm to employees.  OSHA has previously published guidance citing certain types of workplace violence as recognized hazards for “heightened-risk industries,” which include healthcare and social services, late-night retail establishments, and taxi and for-hire drivers.  But an employer in any industry may be considered to have a recognized hazard of workplace violence based on factors like previous incidents, employee complaints, injury and illness data, prior corrective actions, and its own safety rules and policies. Last month, Bond attorneys presented a breakfast briefing on workplace violence at 12 locations across the state, providing guidance on developing an action plan to address workplace violence, identifying the potentially violent employee, and best practices for responding to an incident of violence in the workplace.  To avoid liability and prevent the unthinkable, employers should start taking steps to develop a workplace violence prevention program.

OSHA Makes Sweeping Changes to its Illness and Injury Reporting Rule -- What this Means for Employers

May 12, 2016

By Michael D. Billok
Most employers traditionally have had little to no interaction with the Occupational Safety and Health Administration (OSHA), the federal agency tasked with overseeing workplace safety.  Unless they were inspected by OSHA -- and the 35,820 inspections conducted in FY 2015 pales in comparison to the tens of millions of employers across the country -- most businesses, particularly smaller businesses, may have gone for many years without interacting with the agency.  But that is about to change. Currently, most employers other than those in partially-exempt industries are required to maintain injury and illness reporting records on a log (OSHA Form 300), with supporting documentation (OSHA Form 301, or other equivalent document such as workers compensation records).  Each employer then summarizes that information each year onto OSHA Form 300A, which the employer then posts at the workplace from February 1 to April 30.  Other than serious injuries such as amputations, fatalities, or accidents requiring hospitalization, which require more immediate reporting, employers have not been required to submit injury and illness data to OSHA.  Now, however, many businesses will have to submit injury and illness information periodically to OSHA electronically.  Not only that, but OSHA also will post this information online. The reporting changes affect businesses depending on their size and classification:
  • Businesses with 250 or more employees.  These businesses will have to submit the annual summary form 300A electronically by July 1, 2017; submit the Forms 300, 301, and 300A electronically by July 1, 2018; and then submit Forms 300, 301, and 300A by March 2 annually thereafter.
  • Businesses with 20-249 employees in “high-hazard” industries.  OSHA has compiled a long list of high-hazard industries, including but not limited to hospitals, nursing homes, long-term care facilities, agriculture, utilities, construction, manufacturing, grocery stores, department stores, transportation companies, that must also submit information electronically if they have 20-249 employees, albeit less information than larger businesses.  These businesses need only submit Form 300A by July 1, 2017 and July 1, 2018, and then continue submission of Form 300A each year by March 2 thereafter.
In determining business size, the final rule states:  “each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers.” OSHA claims that Personally Identifiable Information will be removed before the data it receives is released on its web site, but OSHA’s stated reliance on software to perform this function has raised concerns with employers and privacy advocates alike.  Also, it is unclear as to what form OSHA’s online publication will take, and how third parties may seek to utilize this information. The above rule revisions represent a sea change in employers’ interaction with OSHA regarding injury and illness reporting.  But OSHA did not stop there.  OSHA also published changes in its final rule, effective August 10, 2016, that affect all employers, regardless of size:
  • Employers must establish a “reasonable” procedure for employees to report work-related injuries and illnesses, and inform employees of that procedure.  The rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation.  OSHA has issued a Fact Sheet stating this obligation may be met by posting the “OSHA Job Safety and Health — It’s The Law” poster from April 2015 or later.
  • The rule also adds a provision prohibiting discrimination against an employee for reporting a work-related injury, filing a safety or health complaint, or asking to see the employer’s injury and illness logs.
These provisions have raised additional concerns for employers.  The rule regarding “reasonable” procedures is targeted at employers’ safety incentive plans.  If an employer has a safety incentive plan wherein employees get a bonus, or days off, or an award, if the employee, department, or company has a certain number of days without injury -- so the theory goes -- employees may be hesitant to report injuries and illnesses.  It is precisely these kind of incentive plans the new rule intends to eliminate.  In addition, Section 11(c) of the Occupational Safety and Health Act, which has certain requirements before OSHA can initiate enforcement action against an employer in federal district court, has been the exclusive provision for employees to make complaints about retaliation for exercising their rights under the Act.  To the extent that OSHA now intends to issue citations against employers under a different process -- and even if an individual employee has not alleged or filed a Section 11(c) retaliation complaint -- this will be another sea change in enforcement. The bottom line is this:  employers with 20 or more employees in “high-hazard” industries, and with 250 or more employees in all industries, will have to report their injury and illness information electronically by July 1, 2017, which will be made available to the public in some form with personally identifiable information about employees removed.  And, all employers, regardless of size, should review their handbooks, safety incentive plans, and incident reporting policies to ensure they provide a “reasonable procedure for employees to report work-related injuries and illnesses.”

OSHA Penalties Soon Getting a Boost

November 11, 2015

By Michael D. Billok
Michael Kinsley once said "A gaffe is when a politician tells the truth."  And one gaffe that has often been repeated is Speaker Pelosi's statement from 2010, saying about the Affordable Care Act, "we have to pass the bill so that you can find out what is in it."  There was great truth to that statement, as we are now in an age where the public only finds out what was contained in legislation after it has already been passed. Such as the new 144-page budget deal signed into law last week.  It was made public just before midnight on October 26, and with little debate, passed the House on October 28, the Senate on October 30, and was signed into law by the President on November 2.  And we are now coming to "find out what is in it." Such as a provision allowing OSHA to increase its penalties by up to 82%, to account for inflation since 1990.  OSHA's penalty amounts were previously fixed and not indexed to inflation.  However, the "Federal Civil Penalties Inflation Adjustment Act" tucked into the budget deal not only allows OSHA to begin increasing its penalties annually to account for inflation, but also allows it to implement a "catch up" increase for not raising its penalties for the past quarter century.  If OSHA elects to do so -- and as the sun rises in the east, OSHA will elect to do so -- it must implement an interim final rule by July 1 that will go into effect by August 1. OSHA's current maximum penalties are $7,000 (for other-than-serious and serious violations), and $70,000 (for repeat and willful violations).  Those amounts will likely increase to about $12,500 and $125,000 -- and then increase annually thereafter. For any employer subject to an inspection, whether due to a complaint, referral, emphasis program, or the site-specific-targeting program, the stakes are about to increase.

OSHA Publishes Guidance Regarding Restroom Access for Transgender Employees

June 12, 2015

On June 1, 2015, the United States Occupational Safety and Health Administration (“OSHA”) published A Guide to Restroom Access for Transgender Workers.  OSHA stated that the “core principle” of the Guide is as follows:  “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  The Guide serves as an extension to OSHA’s longstanding rule that, as a matter of health and safety, all employees must be provided a sanitary toilet facility in order to avoid “the adverse health effects that can result if toilets are not available when employees need them.” According to the Guide, there are approximately 700,000 adults in the United States who are transgender -- meaning that their internal gender identity is different from the sex they were assigned at birth.  OSHA explained that restricting employees to using “only restrooms that are not consistent with their gender identity or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety.”  This could potentially lead to an unsafe situation where transgender employees avoid using restrooms entirely while at work.  Therefore, the Guide’s “Model Practices” explain that an employee who identifies as a man should be permitted to use men’s restrooms, and an employee who identifies as a woman should be permitted to use women’s restrooms, and that the decision of which restroom to use should be made solely by the employee.  Notably, employees are not required to submit medical or legal documentation of their gender identity in order to have access to the restroom of their choosing. This Guide does not come as a surprise given the actions taken recently by the Office of Federal Contract Compliance Programs, Equal Employment Opportunity Commission, and United States Department of Labor in acknowledging the rights of transgender employees to use the restroom that is consistent with their gender identity. Unfortunately, OSHA did not provide much guidance for employers, stating simply that “employers need to find solutions that are safe and convenient and respect transgender employees.”  OSHA also did not provide any guidance indicating how employers should address situations where employees raise concerns about a transgender employee using their restroom. Nevertheless, employers must be conscious of and follow OSHA’s guidance, regardless of whether adherence makes other employees uncomfortable, or else they will potentially invite legal action, including the filing of OSHA complaints or EEOC charges.  Employers should also review their policies (if any) to ensure that they cannot be construed as prohibiting transgender employees from using the restroom that is consistent with their gender identity.

OSHA Clarifies the Standard for Whistleblower Claims

May 15, 2015

By Patrick V. Melfi
On April 20, 2015, the Acting Director of the Occupational Safety and Health Administration (“OSHA”) Whistleblower Protection Programs issued a memorandum to all Regional Administrators clarifying the standard which should be applied to whistleblower claims at the agency investigatory stage.  The guidance was issued because there was some concern that the standards contained in OSHA’s Whistleblower Investigations Manual were “ambiguous.”  The clarified standard is that “after evaluating all of the evidence provided by the employer and the claimant, OSHA must believe that a reasonable judge could rule in favor of the complainant.” A few points about the clarification are noteworthy.  First, the agency made it clear that “the evidence does not need to establish conclusively that a violation did occur.”  Second, “a reasonable cause finding does not necessarily require as much evidence as would be required at trial.”  Finally, the memorandum does note that “although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations.” While it is too early to tell whether the newly clarified standard will result in more (or less) reasonable cause determinations, employers need to take the guidance into consideration when they are involved in any future whistleblower investigation.

A Labor and Employment Audit of Santa's Workshop

November 12, 2014

By Howard M. Miller

With that first real chill in the air, the holiday season is suddenly upon us.  For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It's the Great Pumpkin, Charlie Brown to Santa Claus is Comin' to Town.  Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits. And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer.  The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole.  For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations.  (Disclaimer:  Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction.  I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.) I will discuss individual lawsuits below.  However, my main concern in terms of liability is in the arena of the class action.  I say this with all due love and affection, “Mr. Kringle, your workshop is a treasure-trove of wage and hour violations.”  The elves work, quite obviously, more than 40 hours a week.  They work through meal periods and weekends and holidays.  Where is their overtime pay?  While efficiently furnished, I don’t see any punch clock for your employees.  Can we say liquidated damages and attorneys’ fees? Your workplace is also quite literally an accident waiting to happen.  The elves have no protective equipment.  There is an Abominable Snowman on the shop floor.  Can we all say, “OSHA”? Mr. Kringle, despite your big heart, your workplace is rife with harassment and discrimination.  For example, there is Rudolph’s red nose and the universally known harassment and bullying to which he has been subjected (“used to laugh and call him names”).  The un-remedied mocking of Rudolph makes for a great holiday gift for the plaintiff’s lawyer who signs up Rudolph and his “slam dunk” suit.  (We make no representations as to whether any plaintiffs-side lawyers are on the "Nice List" and worthy of such a gift).  I think it is imperative that all of your reindeer immediately receive anti-harassment training.  So too with poor Hermey.  The Seinfeldesque “Anti-Dentite” environment that you have condoned is ripe for litigation and is otherwise an insult to dentists world-wide.  That leads us to our Faragher defenses.  Are your EEO policies translated into “Elfish” and properly distributed with a clear record of same? Of additional concern, have you taken care to make sure that the post-toy delivery workplace celebration does not cross the proverbial “line” of appropriateness and result in more than just hangovers at the workshop the next day? Finally, we need a word about the Island of Misfit Toys.  Notwithstanding that the public may want all lawyers permanently deposited in this desolate place, it is nonetheless illegal to segregate your workforce on the basis of such protected characteristics as being a cowboy who rides an ostrich.  And, who among us wouldn’t want to ride an ostrich? Of course, Mr. Kringle is not the only one staring down the barrel at punitive damages.  Yes, I’m talking to you, Mr. Burgermeister Meisterburger.  Making toys is plainly a recreational activity under state labor laws and interfering with concerted activity in this regard will get you an unfriendly knock on the door from the NLRB. So, to our clients and blog subscribers, I wish you all a joyous holiday season in front of a warm fire surrounded by friends and family, without any visions of EEOC complaints or Department of Labor audits dancing in your heads.

Understanding an Employer's Obligations When Domestic Violence Affects the Workplace

November 11, 2014

By Mark A. Moldenhauer

Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes.  While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion.  The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner.  Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis.  When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation.  While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question:  Do any job protections exist for domestic violence victims? Answer:  Yes.  In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis.  While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence.  This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons.  It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments.  Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business.  Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question:  Is an employer required to provide victims of domestic violence time off from work? Answer:  The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection.  In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence.  The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question:  Is an employer obligated to ensure a safe workplace for domestic violence victims? Answer:  The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions.  Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee.  Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees.  An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question:  What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence? Answer:  New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor.  At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds.  This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission.  If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime.  In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation.  Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action.  Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused.  If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection).  If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record.  In either situation, merely ignoring the problem is never a good strategy.