Employee Privacy, Health, And Safety In The Workplace

Employers should stay aware of the litany of laws that govern workplace privacy, health, and safety. These laws exist to protect employees, and employers who violate these laws could face steep fines and retribution from the state.

Concrete Action Steps

1) Workers’ Compensation Insurance

Obtain and maintain worker’s compensation insurance.

2) Keep Your Workplace Safe

Keep the workplace free from hazards that may harm employees. Some industries have specific standards, but for most employers in office environments this can be as simple as having a first aid kit and a procedure for handling injuries and emergencies.

3) No Smoking!

Smoking in the workplace is illegal. All employers must:

• Post “No Smoking” signs or the international “No Smoking” symbol outside the office building.
• At every entrance where smoking is prohibited, post a conspicuous sign to that effect.
• Remove all ashtrays from any place in which smoking is not allowed.

4) Respect Protected Behaviors

All employees have the right to engage in “concerted, protected activity.” This includes talking to other employees about their salaries and conditions of employment – employers cannot prohibit this behavior.

5) Prohibited Tests

Generally, employers can’t force employees to take a lie detector test or prospective employees to take a medical exam. See below for some exceptions. We generally recommend talking to a lawyer for more information before proceeding with either.

6) Prohibited Questions

Don’t ask about the following topics. And if you find out about the following, don’t take action against the employee for it.

• Use of lawful products (i.e. alcohol for employees over 21 years old; cigarettes for employees over 18 years old).
• An employee’s claim under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, employee credit history (with certain exceptions).
• Genetic information.
• AIDS testing or results.

This most obviously, though not exclusively, applies when hiring. For more tips, see our article on Basic Hiring Procedures.

Employee Health and Safety & Employer Responsibilities

1) Provide a Safe Workplace

Employers have a duty to provide a workplace free from hazards that may harm employees. The Occupational Safety and Health Administration (OSHA) sets and enforces specific standards for certain industries, and enforces the other requirements of the Occupational Safety and Health Act.

2) Toxic Substance Disclosures

Under the Toxic Substances Disclosure to Employees Act, employers with 20+ employees, or 5+ full-time employees, must submit a list of toxic substances for which they have acquired material safety data sheets (sheets describing the properties and safe handling procedures of the substance, obtained from the manufacturer) to the Illinois Department of Labor. Employers are also required to:

• Post a workplace notice informing employees of their rights under the Act (see our article on Employment Posters for other required notices).
• Label each container with the chemical name of its contents and appropriate hazard warnings, with certain expectations.
• Maintain copies of the material safety data sheets for at least ten years after the substance is no longer used, produced, or stored.
• Provide employees, unions, and treating healthcare professionals with a copy of the material safety data sheet within ten days of receiving a written request.
• Provide employee training and education regarding toxic substances.
• Notify local fire departments and make them familiar with the toxic substance(s).

3) Enable Employee Hygiene

Employers in industries where employees become covered with grease, smoke, dust, grime, and perspiration (coal mine, steel mill, railroad, etc.) must provide and maintain a washroom in or adjacent to the place of employment under the Employee Washroom Act. Changing facilities, cleaning supplies, lockers, hangers, showers, and toilet facilities must also be provided.

4) NO SMOKING!

Smoking in places of employment is illegal (under the Smoke Free Illinois Act).

Smoking is also prohibited within a minimum distance of 15 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited under the Act to ensure that tobacco smoke does not enter the area through those means.

All employers must take the following steps:

• Post “No Smoking” signs or the international “No Smoking” symbol outside the office building.
• At every entrance where smoking is prohibited, post a conspicuous sign to that effect.
• Remove all ashtrays from any place in which smoking is not allowed.

5) Illinois Latex Glove Ban: The Latex Glove Ban Act prohibits food service establishments and their employees, emergency personnel, and healthcare workers from using latex gloves in the preparation and handling of food. The law also prohibits emergency personnel from using latex gloves.

The law provides an exception in case of emergency. It specifies that “If latex gloves must be used in the preparation of food due to a crisis that interrupts a food service establishment’s ability to source nonlatex gloves, a sign shall be prominently placed at the point of order or point of purchase clearly notifying the public of the temporary change.”

Employee Privacy & Employer Responsibilities

Limits on Employer Action

1) Protected Activity: All employees have the right to engage in “concerted, protected activity” under the National Labor Relations Act (NLRA). These activities are engaged in by 2+ employees with the intention of improving their conditions of employment. This includes talking to other employees about their salaries and conditions of employment. It is against the law for employers to prohibit this behavior. Employers also cannot discriminate based on an employee’s union affiliation, or threaten or coerce employees for engaging in union activities.

The NLRA is a complex law which guarantees basic rights of private sector employees to organize into unions, engage in collective bargaining, and some other private labor practices. It covers all private employees (NOT government employees or independent contractors). We have some more topics to cover before reaching the end of this article, so keep reading!

2) Lie Detectors

Most employers are prohibited from using lie detectors except in specific circumstances under the Employee Polygraph Protection Act (EPPA). The EPPA prohibits an employer from requiring or requesting an employee or job applicant take a lie detector test, and from disciplining them in any way if they refuse. Exceptions:

• Security service companies and pharmaceutical manufacturers, distributers, and dispensers may require job applicants to take a polygraph test, within the limits of certain conditions and limitations.
• Some employees of private firms suspected of workplace theft, embezzlement, or similar conduct that hurt the employer’s financials may be given a polygraph test, within the limits of certain conditions and limitations.

Even in the cases above, employers must observe strict standards during the pretest, testing, and post-testing phases, including having a licensed examiner.

3) Use of Lawful Products

Under the Right to Privacy in the Workplace Act, employers cannot discharge, refuse to hire, or otherwise disadvantage an employee for using lawful products (like cigarettes for employees over 18 or alcohol for employees over 21) off the premises of the employer during nonworking hours.

4) Employee’s Previous Claims

Employers cannot ask prospective employees or former employees whether they ever filed a claim for benefits or received benefits under the Workers’ Compensation Act, or the Workers’ Occupational Diseases Act under the Right to Privacy in the Workplace Act.

5) Employee Credit

Employers cannot ask employees or prospective employees about their credit history or order a credit report, unless satisfactory credit history is an established bona fide occupational requirement (BFOR) for the relevant job/position (under the Employee Credit Privacy Act)

If an employer finds out about an employee’s credit history, they can’t take any employment action because of it. If an employer does any of these and the employee files a complaint, assists in an investigation, or otherwise objects, the employer can’t retaliate against the employee for those actions either.

Exemptions: banks and other financial institutions, insurance companies, surety businesses, debt collectors, and certain governmental or law enforcement agencies.

Employee Medical Information & Employer Responsibilities

1) Medical Exams

Employers cannot ask a job applicant to answer medical questions or take a medical exam before making a job offer under the Americans with Disabilities Act.

Employers can ask a job applicant whether they can perform the job and how they would perform the job.

Employers can also condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if required of all new employees in the same job.

Employers may not require employees or job applicants to pay for a physical examination or the cost of providing records of the examination under the Medical Examination of Employees Act.

2) AIDS Information

If you discover that an employee has AIDS or has taken an AIDS test, you must keep that information confidential. The law carves out a few exceptions. You may disclose it to (1) the employee, (2) a legally authorized representative, (3) any person designated in a legally effective release, (4) healthcare facilities or providers in certain circumstances, (5) law enforcement personnel who may have come in contact with blood or bodily fluids in the line of duty, and (6) caretakers of children taken into temporary protective custody by the Department of Children and Family Services (AIDS Confidentiality Act).

3) Genetic Information

Employers cannot discriminate based on genetic information, and must handle genetic information confidentially. An employer may release genetic testing information only to (1) the subject (employee) of the test or the subject’s legally authorized representative; (2) any person designated in a written release executed by the subject’s authorized representative; or (3) an authorized agent or employee of a healthcare facility or provider if it is authorized to obtain the test results, provides patient care, and has a need to know the information to conduct the test or provide care or treatment.

4) Drug Testing

Employers should only drug test employees either at random or based on a reasonable suspicion that an employee is under the influence at work. Otherwise, employees may be able to make a discrimination claim. Employers should also be careful not to terminate an employee for taking medication for a disability protected by the Americans with Disabilities Act.

Related:

• Employment Solutions
• Basic Hiring Procedures
• Required Employment Posters

Most business owners approach employee issues with trepidation and caution, and rightfully so. Violating employee rights, even unintentionally, can bring a lot of trouble! But you don’t have to go it alone. You can get in touch with us to get ahead of these issues, or read more about our employment solutions here.