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Job security failure

That evening, Brandon texted his supervisor to report a potentially fatal safety risk created by another coworker and provided photos of the incident. He had taken the photos a month previously, but did not immediately report the issue. In fact, after taking the pictures, he allegedly boasted to a coworker that he was holding on to them for “job security.”

When Brandon got fired less than two weeks later, his month-long delay in reporting a serious safety issue was one of the factors cited, along with his behavioral problems. In addition, the employee who Brandon had told about the photos was admonished for not relaying the concern sooner. And of course, the employee who caused the safety issue was counseled on avoiding future risks (the court documents did not describe the nature of the safety issue).

This situation became a court case because Brandon sued for wrongful termination relating to his request for leave under the FMLA. He claimed that he was fired for attempting to exercise his FMLA rights, but in the words of the court, he was fired “for failure to reform his behavior and to report the safety concern timely.” Although the FMLA does allow employees to take job-protected leave and prohibits retaliation for exercising those rights, it does not grant employees protection from termination for misconduct or other legitimate workplace concerns.

For related information, see our article, Can you fire someone who got injured? Yes, if you do it correctly.

Not retaliation

This case presents an interesting outcome, since employees can be protected from termination or retaliation for reporting a safety concern. In this case, however, the employee intentionally withheld knowledge of a safety concern, knowing that he was facing disciplinary action, thinking he could play that card in the future to protect his job.

Ironically, rather than providing the “job security” that he expected, the reporting delay contributed to the company’s decision to fire him — and the court agreed that it was a justifiable reason to fire someone.

The case was Tatum v. Southern Company Services, Inc., in the Fifth Circuit Court of Appeals (No. 18-40775), with the ruling made July 22, 2019.

Key to Remember: Several federal laws prohibit retaliation against employees who exercise certain rights, but those laws do not protect employees from termination for legitimate reasons, including safety violations.

Start with a strong paper program

A strong paper program alone doesn’t guarantee a solid safety philosophy, but you won’t find a successful one without it. Written plans, policies, and documentation form the foundation for setting expectations, tracking progress, and defining safety goals.

Key elements to include are:

• A clear mission statement with safety objectives,
• Programs addressing both general and specific safety topics,
• All required regulatory plans,
• Detailed records of training, inspections, and incidents, and
• An organized system for accessing safety documents.

Earn buy-in from people involved

Like any significant organizational change, successfully implementing a safety philosophy depends on securing full support from everyone involved.

Commitment must start at the top—executives need to lead by example to ensure supervisors and employees are fully engaged. If leadership doesn’t prioritize safety, it’s unlikely the rest of the organization will.

Impact management

Managers who understand how safety reduces incidents and downtime are more likely to support it. To gain buy-in from others focused on production or costs, speak their language—show how safety saves money, boosts quality, and improves morale.

Highlight cost savings from fewer claims, link safety to product quality, share success stories, and emphasize the benefits of public and employee relations.

When leadership sees the value, they’re more likely to support safety programs that involve all levels of staff. Engaging employees in safety committees or projects helps embed safety into the culture, especially as those employees grow into leadership roles.

Involve employees

Employees won’t truly buy into safety until they see it in action. If policies aren’t backed by training, daily enforcement, and proper resources, workers will quickly notice—and may stop taking safety seriously.

Before using discipline, ensure that employees have been adequately trained, have access to written procedures, are equipped with the necessary tools, and receive positive reinforcement for exhibiting safe behavior.

If leadership prioritizes production over safety, employees will follow suit. But when managers lead by example and consistently enforce safe practices, employees are more likely to adopt and uphold a strong safety culture.

Support people and processes

Visible management commitment and active employee involvement are key to a strong safety culture. While some safe behaviors happen naturally, effective safety programs require planning, structure, and continuous effort.

Support this culture through actions such as involving employees at all levels, holding safety meetings, forming safety committees, collecting suggestions, and providing training tailored to real job-site needs.

These efforts require management to provide training, time, and funding. A lasting safety philosophy is built through teamwork, consistent support, and shared responsibility across the organization.

Key to Remember

A strong safety philosophy isn’t just written—it’s lived. It starts with clear policies, grows through visible leadership commitment, and thrives when every employee is involved and empowered. When safety becomes part of how work gets done, not just something added on, your company builds a culture that protects people and drives lasting success.

Q: When will OSHA’s proposed Heat rule become final?

A: The agency has scheduled a virtual public hearing for June 16 on its proposed Heat rule. Following the hearing, OSHA will analyze comments it received, which can take several months. Once this step is completed, OSHA will determine what’s next. This may include finalizing the rule.

Q: How does the proposed heat rule define indoor work?

A: “Indoor” is defined in the proposed rule as “an area under a ceiling or overhead covering that restricts airflow and has along its entire perimeter walls, doors, windows, dividers, or other physical barriers that restrict airflow, whether open or closed.” Examples include:

• A garage, even if the door is open;
• The interior of a warehouse, even if multiple doors are open on loading docks; and
• A shed with four walls and a ceiling, even if the windows are open.

Construction activity is considered “indoors” when performed inside a structure after the outside walls and the roof are built.

Q: Which states have their own heat regulations?

A: Several states have their own heat-related regulations. Note that they vary in the type of industries covered, whether they apply to indoor and/or outdoor workplaces, and the expectations and requirements for employers. These states are:

• California
• Colorado
• Maryland
• Minnesota
• Nevada
• Oregon
• Washington

Additionally, Arizona and OSHA Region IX have launched emphasis programs.

• Arizona — In July 2023, Arizona implemented a state emphasis program (SEP) to reduce worker exposure to heat-related hazards in indoor and outdoor workplaces. In May 2025, the state’s governor formed a heat safety task force, with the goal of developing employer guidelines on heat safety by the end of 2025.
• OSHA Region IX — This region adopted a regional emphasis program (REP) for heat illness in November 2022. It applies to indoor and outdoor worksites where potential heat-related hazards exist in Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Nevada, the Northern Mariana Islands, Oregon, and Washington.

And finally, several states and territories adopted OSHA’s National Emphasis Program (NEP) for indoor and outdoor heat hazards (CPL 03-00-024). Some adopt it identically and others made changes. These include California, Connecticut, Hawaii, Massachusetts, Maryland, Maine, Michigan, New Jersey, New Mexico, Nevada, New York, Oregon, Puerto Rico, South Carolina, Virginia, the Virgin Islands, Vermont, and Washington.

Q: Can OSHA cite our warehouse for heat hazards?

A: Yes, OSHA can cite your warehouse for heat hazards. In fact, under the agency’s NEP (CPL 03-00-024), OSHA compliance officers must initiate inspections in any of the 70 listed, high-risk industries (including the warehousing and storage industry) in outdoor and indoor work settings when the National Weather Service issues a heat warning or advisory for a local area. Inspectors will review illness logs and other records, interview workers, determine if the employer has a heat illness prevention program, document ambient conditions, and identify work activities relevant to heat-related hazards.

If there’s sufficient evidence to issue a citation for heat-related hazards, a citation under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act will be issued.

Q: Does heat stress have to be reported on our OSHA Logs?

A: Heat illness cases must be recorded if they meet OSHA’s recording criteria. To be recordable, the condition must involve medical treatment beyond first aid. First aid treatments listed in 29 CFR 1904.7 include “drinking fluids for relief of heat stress.” For instance, if an employee showed heat stress symptoms and needed a break to cool down and drink fluids, this alone is not a “recordable” case for the 300 Log. However, if the employee went to the hospital for intravenous (IV) fluid replacement, that would be recordable as medical treatment. Similarly, OSHA says if the employee went unconscious or oxygen was administered, the case is required to be recorded.

A case of heat stress will also become recordable if the employee needs restrictions or days away from work.

Key to remember: In the absence of a final Heat rule at the federal level, OSHA can use the General Duty Clause to cite for heat-related hazards. On June 16, the agency will hold a virtual public hearing on its proposed Heat rule. Meanwhile, some states already have heat regulations in place.

Improper pool construction

In a recent case, the Iowa Supreme Court ruled that an employer violated the state’s drug testing law because it did not properly create a drug-testing pool.

Few states regulate drug testing as strictly as Iowa. Employers testing in the state must follow the state's law unless they are required to follow federal drug and alcohol testing regulations that cover employees doing safety-sensitive work, such as certain truck drivers.

For tests conducted under the state’s comprehensive drug testing law, employers must use one of three methods to create an employee testing pool for an unannounced drug test.

One method uses a pool comprised of the entire population of employees at a work site, except for those:

• Not subject to testing because of a collective bargaining agreement;
• Who are not scheduled to be at work at the time the testing is conducted because of their status; or
• Who have been excused from work pursuant to the employer’s work policy before the testing is announced to employees.

Testing troubles

For the company’s random test, a list of all active employees was used. From this list, a computer-based random generator produced a testing list of 15 employees and eight alternates. If an employee selected for the test was not at work on the day the test was given, an alternate was selected.

One of the alternates subject to testing provided a urine sample that was outside of the acceptable temperature range. The employee was directed to provide another sample, but the sample wasn’t large enough for testing.

The employee waited at the worksite for a time and then told the company’s human resources director he was leaving to take care of a sick child. He was warned that he would be fired if he left. He left the area and was later fired.

The employee filed a lawsuit claiming that the employer’s testing pool did not meet state requirements.

Strict state standards

The employer argued that because no employees who were not scheduled to work could have been tested, it substantially complied with the state law and the pool met requirements.

The court ruled, however, that the company’s testing pool didn’t meet the law's standards. The law places limits on how the testing pool can be constructed, and to substantially comply with the law the company would have had to make an effort to properly create the testing pool.

It fell short because its testing pool consisted of all active employees in the company, and didn’t exclude employees who were not scheduled to be at work when the test was conducted or who had been excused from work under the employer’s work policy.

Compliance with the law would have required the employer to compile a list of employees who were scheduled to work on the planned testing day. That list could have been the testing pool, and names could have been randomly selected from that list.

Because the company didn’t substantially comply with the law and make reasonable efforts to ensure that the pool was constructed properly, the court found in favor of the employee.

State laws vary

Most states don’t have drug testing laws that are as detailed as Iowa’s, and some states don’t have any drug testing laws at all. In those states, employers may determine how the selection pool is created. Having this outlined in a workplace policy allows for consistency and can help avoid the claim that a test was conducted in a discriminatory manner.

Key to remember: In all cases, employers should pay attention to the details of state regulations that impact employee drug testing. In some states, such as Iowa, drug testing must be very carefully conducted to avoid violating state law.

Scott Hampe vs. Charles Gabus Motors, Iowa Supreme Court, No. 22-1599, April 11, 2025.