Safety: The Universal Language? Literacy and Language Challenges in the Workplace
By Mark A. Lies II and Adam R. Young
The American “melting pot” becomes increasingly diversified and employers look to promote diversity and inclusion in the workplace. Throughout the decade, the job market has tightened, and employers face inevitable issues related to language and comprehension in the workplace. Employers can no longer assume that qualified workers speak or write in English. Employers who hire non-English speaking workers are obligated to ensure that all employees, regardless of their linguistic background, receive and comprehend safety-related training. For employers whose supervisors only speak English, OSHA’s requirements can present unique challenges. This article outlines OSHA’s policies with respect to training non-English speaking employees and offers recommendations for employers in assuring that all employees are adequately trained to work safely.
OSHA’s Training Requirements
Numerous OSHA standards, from lockout/tagout to forklift operation, and bloodborne pathogens to hazard communication, require employers to train or instruct employees in some way. Under 29 C.F.R. § 1910.9(b), these training requirements “impose a separate compliance duty with respect to each employee covered by the requirement.” OSHA generally defines its training requirements as “performance-based,” meaning that OSHA defers to each individual employer to fashion the most effective manner by which to accomplish the compliance goal of the standard. For that reason, none of OSHA’s training standards require employers to use documents, teaching methods or language to train employees. Instead, OSHA requires employers to present information in a manner that employees are capable of understanding. It should be noted that OSHA will consider any form of training to be suspect if employees do not have the opportunity to ask questions regarding the subject matter.
In its OSHA Training Standards Policy Statement released during the Dr. David Michaels’ OSHA regime under the Obama Administration, the Agency explained that “training required by OSHA standards must be presented in a manner that employees can understand. In practical terms, this means that an employer must instruct its employees using both a language and vocabulary that the employees can understand.” For example, if an employee is not literate, the employer does not satisfy OSHA training requirements merely by telling the employee to read training materials or safety programs. Likewise, if an employee does not speak, read or understand English, training must be provided in a language the employee understands. If the employee’s vocabulary is limited, the training must account for that limitation.
Additionally, OSHA’s Policy Statement noted several specific requirements related to employee comprehension.
• §1910.147(c)(7)(i) (Lockout/Tagout) requires the employer to verify that the employees have “acquired” the knowledge and skills which they have been trained;
• §1910.134(k)(5)(ii) (Respiratory Protection) requires retraining when “inadequacies in the employee’s knowledge or use of the respirator indicate that the employee has not retained the requisite understanding or skill;” §
• 1910.1030(g)(2)(vii)(N) (Bloodborne Pathogens) requires “[a]n opportunity for interactive questions and answers with the person conducting the training session;”
OSHA has tasked each of its compliance officers with the duty to determine whether the training provided by an employer satisfies the intent of the Standard, i.e. whether employees receiving the training have understood that training. Obviously, this is a highly subjective exercise. One way that an OSHA inspector will make this evaluation is to interview employees. These interviews may or may not take place in the presence of a management representative. Many OSHA inspectors are bilingual, particularly in Spanish, and those who are not may request another employee to act as an interpreter to translate during an employee interview. Translation issues can present potential bias problems during employee interviews, whether the interpreter is another employee, a management representative or an OSHA official. For this reason, employers must ensure that employees understand their right to have a management representative, as well as an interpreter of their choosing (who can be a co-employee), present during the interview. Employers may also consider requesting that a neutral third-party act as interpreter during the employee interview, particularly if the interview is a critical one and accuracy is an important consideration. Many employers fail to realize that unless they take the time to prepare an employee prior to the OSHA interview and explain to the employee his/her rights, an employee cannot possibly know these rights. There is no OSHA regulation that prohibits an employer from preparing an employee for the interview, including explaining the employee’s rights.
Another way OSHA inspectors will evaluate the employer’s compliance with safety training standards is by determining how the employer communicates other workplace rules and policies to employees, particularly job instructions, i.e. other non-safety policies or procedures. If these other job instructions are given in Spanish, for example, OSHA will likely view English-only safety training as insufficient.
Ultimately, the OSHA inspector will determine, based on a review of all the gathered facts, whether a “reasonable person would conclude” that the employer has or has not conveyed training to employees in a manner they are capable of understanding. In one case involving deficient safety training, for example, a supervisor described the company’s training program as follows: “Basically, in the yard with the men making sure they got their vests, their shoring, their boards before they leave for the job. They are directed to not get in holes over four feet deep, when it’s unsafe to use the proper shoring.” Sec. of Labor v. J. Mess Plumbing Co., Inc., 21 O.S.H. Cas. (BNA) 1100 (A.L.J. Oct. 18, 2004). In that case, most of the company’s employees had immigrated from Bosnia and Albania and could not speak English. Where an employee could not speak English, another co-worker would translate the materials for him. In addition, the employer did not maintain any documentary evidence of a training program. An Administrative Law Judge upheld OSHA’s citation under a construction industry training standard, finding that the employer “hired workers who are not fluent in English, and then failed to ensure that they understood the minimal training they received.”
Liability for Per-Employee Citations
Case law precedent from the Occupational Safety and Health Review Commission validated OSHA’s ability to issue citations under its training standards on a per-employee basis, meaning that OSHA can issue a separate citation and penalty for each employee who did not understand his or her required safety training. In Sec. of Labor v. E. Smalis Painting Co., slip op., O.S.H.R.C. Docket No. 94-1979 (Apr. 10, 2009), OSHA issued a total of seventy-one Willful citations to Smalis for failure to train seventy-one employees as required in OSHA’s lead in construction standard, 29 C.F.R. § 1926.62(l)(1)(ii). The Review Commission upheld twenty-seven of those Willful citations, one for each of the twenty-seven employees who had been exposed to lead at or above the action level and who had not received the training and imposed a penalty of over $5,008,500 in total.
The Review Commission’s decision in Smalis was based on its finding that training requirements under OSHA’s asbestos standard “impose a duty that runs to each employee.” While the Smalis decision is based on the employer’s failure to train altogether, the Review Commission’s reasoning may well be applied to situations involving the adequacy of an employer’s training program as it relates to non-English speaking employees.
Recently, OSHA issued a citation in the amount of $1,792,726 to a roofing contractor for failure to ensure employee training and the use of fall protection to its employees. The citations included 13 Willful citations with the maximum penalty of $132,598 for each of the 13 employees who were exposed to a fall hazard at multiple job sites. Unfortunately, the citations arose from a fall related fatality. The employer was also indicted for manslaughter and workplace manslaughter.
OSHA’s Expansion of Enforcement on Written Employer Policies
In recent enforcement, we have seen OSHA take the new, aggressive enforcement position that an employer’s safety procedures (e.g. machine-specific LOTO procedures) — not merely verbal and written training materials — must also be translated into the foreign languages spoken by employees. No OSHA standard specifically requires employers to translate procedures into every language spoken by employees. The task of translating all procedures for a potentially transient workforce may be costly and infeasible for many employers, particularly smaller employers with limited resources and with a workforce containing many ethnic groups. Accordingly, we do not believe that OSHA’s enforcement position is supported by the law or is economically feasible, or that employers should assume the duty of translating all procedures into the languages spoken by employees.
English-Only Employment Policies for Safety-sensitive Areas
Employers may be tempted to avoid OSHA’s onerous and subjective training policies by employing only English-speaking workers. Employers must proceed with extreme caution in fashioning these types of policies so as not to run afoul of federal and state anti-discrimination laws.
Employers who fashion “English-only” policies prohibiting employees from speaking languages other than English in the workplace are presumed to be discriminating on the basis of an employee’s national origin. The federal regulations implementing Title VII of the Civil Rights Act call such policies “a burdensome term and condition of an employment,” and provide that prohibiting non-English languages in the workplace at all times “disadvantages an individual’s employment opportunities on the basis of national origin” and creates “an atmosphere of inferiority, isolation and intimidation based on national origin.” 29 C.F.R. § 1606.7(a).
These same regulations do recognize, however, when applied only at certain times, an English-only policy in the workplace may be appropriate and non-discriminatory. To avoid liability for discrimination, the employer must establish that the rule is justified by a “business necessity.” 29 C.F.R. § 1606.7(b). In its Compliance Manual, the Equal Employment Opportunity Commission (EEOC) has recognized that the need for the safe operation of an employer’s business is considered a “business necessity” that can justify an English-only rule that is tailored to specific circumstances. The EEOC also recognizes that the need for supervisors who only speak English to communicate with employees is also a “business necessity” that can justify an appropriately narrow English-only policy.
The EEOC cites the following scenario as an appropriate use of an English-only rule to address safety concerns: XYZ Petroleum Corp. operates an oil refinery and has a rule requiring all employees to speak only English during an emergency. The rule also requires that employees speak in English while performing job duties in laboratories and processing areas where there is the danger of fire or explosion. The rule does not apply to casual conversations between employees in the laboratory or processing areas when they are not performing a job duty. The English-only rule does not violate Title VII because it is narrowly tailored to safety requirements.
EEOC Compliance Manual, Section 13: National Origin Discrimination (Dec. 2, 2002). According to this example, then, an employer would not run afoul of federal non-discrimination laws by requiring employees to speak only English while performing specific job functions, during emergency situations, or while working in particular areas of a facility that implicate workplace safety issues.
Employers must also take care in making hiring decisions based on a candidate’s ability to speak English. A narrowly-tailored and appropriately used English-only policy is relevant to hiring decisions. If, for example, an employer has an English-only policy like XYZ Corporation’s in the above example, it would need to consider that policy in hiring employees to work in the laboratories and processing areas, or, for example, certain equipment that has control systems that are identified in English or requires the use of operation manuals that are only available in English. Candidates who speak no English would not be able to adhere to the policy and would therefore not be qualified for hire into a position that includes work in those areas. Similarly, even in the absence of an English-only policy, an employer does not violate federal anti-discrimination laws by rejecting a non-English speaking candidate whose inability to speak or understand English would materially affect his or her ability to perform job duties. If, for example, a candidate’s job duties would require forklift operation, and the candidate could not read or understand warning signs, operating manuals, or safety placards required for the safe operation of a forklift, then the employer would have a good faith, non-discriminatory reason for rejecting that candidate.
Conclusion and Recommendations
It is recommended that all employers who employ workers with limited or no ability to speak or understand English carefully evaluate their safety training programs to ensure those employees have received and understood required safety training, including the following:
• Review the means by which work instructions are communicated to employees. If work-related instructions and other safety related policies are communicated in languages other than English, strongly consider providing safety training in those languages as well.
• Where appropriate, incorporate photographs and illustrations into procedures and training. These will be more readily understood by speakers of any language proficiency.
• Incorporate practical “tests” into required safety training involving visual observation of the employee performing safety related tasks thereby allowing employees to demonstrate their understanding (or lack thereof) of core safety concepts.
• Maintain thorough documentation of employee training, including any practical tests included in training. Include a signed statement from each employee that he/she has received and understood specific safety training provided and, if necessary, have a bilingual employee trainer countersign and date the statement.
• In the event of an OSHA inspection, advise all employees of their right to have a management representative or other employee present during any interviews or to decline the interview if OSHA refuses the employee’s request. Designate a qualified and competent person (whether management or non-management) to act as the “go to” interpreter to facilitate interviews with non-English speaking employees.
• Evaluate employee duties on a job-by-job basis to determine whether critical job- or safety-related functions require fluency in English. For certain tasks where English fluency is a critical job qualification for safety purposes include such requirements in the job description and hiring process.
Mark A. Lies, II, is a partner with the law firm of Seyfarth Shaw LLP. He specializes in occupational safety and health and related employment and civil litigation. He can be reached at 312-460-5877 or mlies@seyfarth.com.
Adam R. Young is an associate attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. He focuses his practice in the areas of occupational safety and health, employment law and associated commercial litigation. He was a speaker at the 2019 CSDA Convention & Tech Fair presenting “Drugs and Drug Testing in the Workplace.” Mr. Young can be contacted at ayoung@seyfarth.com or 312-460-5538.
