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Home Back Issues No 27: Managerial: Is Fear for Personal Safety Valid Reason to Escape the Late Shift?

May 03

No 27: Managerial: Is Fear for Personal Safety Valid Reason to Escape the Late Shift?

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Employers Face Legal Considerations

Is Fear for Personal Safety Valid Reason to Escape the Late Shift?

Reader Question: We sometimes run experiments for several days 24/7, each taking turns at the shifts covering the late-night hours. Now a new technician tells me he is afraid to come onto the largely deserted premises on weekend nights (yes, our building is in a "rough" part of town). How much weight should we give personal preferences in this situation? If this fellow is excused, somebody else will have late-night double duty.

Expert Comment:

Notwithstanding the technician’s “personal preferences,” the answer to this question is dictated in part by the following legal considerations:

First, under Occupational Safety and Health Administration (OSHA) rules, you as his employer have a duty to provide a safe workplace for him and everyone else under your supervision. If your staffers are required to work alone with no security in a “rough” part of town, it could be that you are failing to meet this requirement. There are ways you could make the workplace safer, including hiring a security guard for the night shift, installing alarms, installing better lighting, requiring a buddy system for technicians who work at night, security escorts, etc.

Another legal consideration is whether you are breaching any kind of implied contract made at the time of his hiring. Re-examine the job description for his technician position and exactly what he was told during the interview process. For instance, if the technician at that time expressed a desire not to work late at night because of safety fears, and you or an HR manager told him that he would not have to work those hours, that could constitute an implied contract. However, if he was told at hiring that he would be expected to work on experiments that might run for several days 24/7, that he sometimes would have shifts that included the “wee hours,” and he took the job with that agreement, this might constitute part of the official job duties he is required to perform.

Also, to avoid an employment discrimination lawsuit, be careful to treat all employees similarly. This means that any rule or policy you make with regard to this technician must be applied to all other technicians.

In one actual case, female workers at a Philadelphia firm said they might quit if required to work the late shift, so the company adopted a policy to excuse them from it. That led some male workers to sue for employment discrimination based on gender. The court ruled in their favor. The lesson: Make sure your policy treats everyone meeting the same job description equally.

You certainly want to do everything possible to avoid an incident of violence at your workplace. That means not only doing everything possible to keep everyone safe, but also avoiding any negative public-relations image that could result to your company or lab if an incident occurred. Considering all the above — and consulting with your HR and legal departments — will help you make the right decision in your specific situation.

Comments by Melissa Fleischer, Esq.a management-side employment law attorney with over 20 years' experience. She is the founder of HR Learning Center LLC in Rye, N.Y.

She was the principal speaker of the past teleconference, "Lab Violence: Lessons Learned", which is available via CD-ROM, MP3 File, and PDF Transcript.

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Comments (15)
written by Robin, May 04, 2010
Wait. What? I can't believe you're looking for ways to coerce your workers to put themselves in harm's way so you can run an experiment. Do you seriously think your research project is worth more than the life of a staff member? How will you feel if this person's fears turn out to have been justified? If the prospect of having someone's death on your hands for the rest of your life doesn't faze you, think about this: afterwards, there will be criminal and administrative investigations. Your responsibility to have adequately provided for the safety of your staff will be among the targets of BOTH of these investigations.
written by Grants Admin, May 04, 2010
I've known several Investigators (both senior and new) that have no regard for the administrative nor technical support personnel. Some give the impression, and I've actually had some tell me, that their work is more important than the overall well being of the staff. The feeling is that we should be on call whenever the Investigator needs us. I've actually had one Investigator who e-mailed me at 4:30am. When I responded at 8:00am he was very upset that I didn't respond sooner! When I advised him that my working hours were 8:00am to 5:00pm I was told that if he had a question he wanted it answered right away. I've had another Investigator tell me that he should be in my top 5% of Investigators when he needs something done or questions answered! By the way I'm a Grants and Contracts Administrator doing Pre-Award, Reconciliation and Post Award, and not even involved in the science. I have 40 +/- Investigators that I work with, but that didn't matter to him. Investigators need to learn to appreciate both their administrative and scientific staff, for without us what would they do . . . . . As for the safety issue, this is a very serious concern. Has the Investigator bothered to come in at all hours of the night by him/her self ? If not why not ?
written by Investgator, May 04, 2010
One way to address the concern would be to assign two technicians for the same experiment in the night or weekends. If the second technician is not available, then the PI needs to come to the lab. to make sure that the work environment safety is maintained. This situation is not new.
written by LabManager, May 04, 2010
Due to safety concerns, management at our company implemented numerous additional safety features such as additional security cameras, multiple panic buttons, high-intensity lighting and so on. When a person is working alone in the lab, they are required to carry a panic button on their card access lanyard. When that button is pushed, it notifies security that there is either a medical or safety emergency and to respond with EMT's and law enforcement immediately (no questions asked). Video monitors allow employees to view the parking lot before exiting day and night to see if there are security issues before opening the door (such as someone loitering or a strange car, etc.). In addition, management does not allow us to conduct certain procedures when solo in the lab due to inherent safety matters at any time day or night. The unfortunate side of the current employment law is that you can't really make exceptions for one person and not another. Thus the employee that is 7 months pregnant can't get any special privledges that aren't also granted to a 22 year old man that is a blackbelt in karate (unless issued from a doctor). The legal environment often creates situations where common sense and consideration are not placed above legal precedent. Sad but true. Regardless, if employees are expressing concern about safety of any type (lab or crime), it is important to really listen and to address these concerns. The sad but true fact is that many labs on campus and off campus are often in areas that are sketchy making trips from the car, subway or rail station to the lab entry scary at night. Companies and Universities should be working to mitigate potential dangers within reason. Employees have a right to a reasonable expectation of a safe working environment.
written by jvsayad, May 04, 2010
Thank you very much for reminding us all about OSHA regulations. Also, depending on what type of lab work goes on, it might be that OSHA requires more than one person to be on-site at a time.
written by Anonymous, May 04, 2010
The problem with working late in a "rough" area is not only safety concerns while being in the lab, but coming to and from the lab. This requirement is ridiculous, whether it was stated beforehand (during the interview) or not. Given that the PI knows that their lab is in a "rough" area, he/she should do everything possible to not conduct studies needing technicians at night. There are many alternatives including automating measurements or changing testing time parameters.
written by Pam, May 04, 2010
I am a Safety Manager at a University where we have many research labs. While I appreciate the individual comments of many who have voiced their opinions I have to agree with Ms. Fleischer's comments. There are many aspects to consider and OSHA is set in place to protect worker safety as well as the employer. There are many things that the employee can do to assist with their own personal safety. Example: have a friend, relative, or coworker call every hour and check up on them. If going to and from work is a concern then an escort may be an option however, if it is not an option a person on the other end of a cell phone can also be a way to protect yourself. Lastly I'd like to point out that being aware of your surroundings is the most important thing. Looking people in the eye and making eye contact can often be enough to make a potential perpetrator go elsewhere. You are your own first line of defense.
written by Dolores, May 04, 2010
I agree with the legal advice. In all the years I have worked in pharm development there is always a need for at least two or more individuals at all times to assure that the person is safe and the equipment is under proper controls. An individual alone in a facility could experience a medical or safety emergency and the company would be liable for damages to the person and or equipment.
written by [email protected], May 04, 2010
My wife, who was a home care nurse, who was required to make visits in dangerous areas was provides with a police escort
written by Robert, May 05, 2010
i'd tell him that if he likes the job, likes to get paid, then this is part of the job. you could earnestly try to get the security around here to ease his discomfort. otherwise...if he wants to work in a what he perceives a safer area or in a safer job...that's okay. he can leave and you can replace him.
written by a worker, May 05, 2010
1) is there a safety issue? That is, have bad things happened in and around that area - is there proof that there is danger? 2) If there is no proof, then reasonable safety precautions are in order like air horns, mace, movement sensitive lighting, cameras, etc. and get the employee some counseling or show them the door. 3) If there is proof, perhaps the local police can offer suggestions - or use some of the ones offered here. If running these experiments is part of the job, then the employee needs to seriously consider whether or not they want to stay in that job. Yes, hazards do exist and neither the government nor the employer is your mommy.
written by Humanist, May 05, 2010
This is directed towards 'a worker'comments. You are correct "Yes, hazards do exist and neither the government nor the employer is your mommy." I assume that you work in research that does not have human and/or patient contact. With your comment it is evident that you have little or no interpersonal skills. Unless it is a absolute known fact that you are working in a dangerous job, military, law enforcement, fire fighting, coal mining, etc, it is reasonably expected by employees to be working in relative safety. If this employee has raised this as an issue, maybe (in all likelyhood) other employees feel the same but are afraid to raise this issue for fear of losing their jobs. Maybe this employee has been assaulted in the past somewhere, and this is a real concern for them. Maybe the 'lab' had moved since employment started, and the location has changed into a less desirable area. Maybe the surrounding area has 'changed' since employment started, and it has become a 'rough' section of town. There are lots of factors to consider that were not conveyed in the original statement that would/could become factors in this concern. Blatant comments such as 'that's okay. he can leave and you can replace him' show lack the lack of concern voices by many employers in this day of no loyality from employers and employees alike. If this individual (or someone else) is attacked, injured or worst yet killed - can the lab sustain the lawsuit that will follow since this was a known issue and had be brought forward to management as a concern?
written by ToughGuy, May 07, 2010
The babyish comments of many respondents remind us of how "soft" and "risk -adverse" some segments of our society have become. They should thank Heaven they weren't on the job 100 years ago, when they might have had to face off tigers, thugs of all sorts, etc. What's the next acceptable fear:- possible rat bite, stray gamma ray, fellow technician going beserk? Let's get rid of the "coddled"; our science collegium will be better for it. PS: Even picking up a welfare check has risks!
written by AcademicResearcher, May 08, 2010
Holy crap, are these comments coming from people who have a college education? Of course we're all glad not to be subject to the dangers of 100 years ago. Since we can eliminate most of them, we should, unless causing needless harm is something you're into. And all activities have risks, but you can choose how risky to make them if your boss isn't compelling you to do them, e.g. you don't have to go jogging through the park alone at night if you don't want to, but you do have to go to the lab alone at night if the boss tells you to--most people today are thankful to have any job, they can't just quit if they don't like it. That's why unions and OSHA and many other things exist. A PI who acknowledges their lab is in a sketchy neighborhood yet requires employees, who have voiced security concerns, to go there alone at night is *begging* for a lawsuit if the slightest incident happens. "Pam"s suggestions of hourly phone calls etc. are good ways to make sure your injured or dead body is discovered fairly quickly, but not ways to make you safer.
Security must be provided
written by Unemployed, August 09, 2010
When asking an employee to come to a dangerous area at night, the employer does have to make provisions for safety. These include: on-site security, escort when traveling between the parking lot and the building, and taxi vouchers for those employees who do not drive to work. I will not work between 10 pm and 6 am unless I get taxi vouchers and there is onsite security. BTW that is not the reason why I am unemployed - that was due to catching my boss red handed as she falsified data

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