Things you should know

2018 WorkComp Benchmark Study released

The sixth annual Workers’ Compensation Benchmarking Study Report by Rising Medical Solutions, Inc. focuses on key issues influencing medical management performance and the most potent strategies to address these issues.

BLS report: Fatal injuries remain over 5,000

The number of fatal work injuries dropped slightly in 2017 to 5,147 down from 5,190 in 2016. Fatal falls were at their highest level in the 26-year history of the BLS’s reporting, accounting for 17.2% of employee deaths, while transportation incidents again account for the most deaths with 2,077, or 40.4%.

In 2017, 15.1% of fatally injured workers were age 65 or over – a series high. The number of deaths among Hispanic or Latino workers rose 2.7% to 903 in 2017.

Report: Injured restaurant workers miss an average of 30 days

AmTrust Financial Services Inc., a provider of workers compensation insurance, took a deep dive into common restaurant injuries, lost time, industry loss ratio trends and how to implement loss control best practices in its report, Restaurant Risk Report. Cafés and coffee shops had the highest lost time, on average 45% more time lost than all other restaurant types. Wrist injuries are the biggest danger for coffee shop workers, with “barista wrist” resulting in an average of 366 days to return to work.

Study: Musculoskeletal injuries to long-haul truck drivers

Nearly half of all musculoskeletal injuries reported by long-haul truck drivers are to their arms, backs or necks – the majority being sprains and strains – according to a recent study conducted by researchers from the University of Alabama at Birmingham. Drivers most often were injured because of a fall (38.9 percent) or contact with an object or equipment (33.7 percent).

Of those injured, 53 percent required time away from work, at a rate of 355.4 incidents per 10,000 full-time workers, which is more than double those of other hazardous professions. The researchers said the study suggests the need for injury prevention and interventions and ways to improve recovery when injuries occur.

Report ranks states by risk of violence from Black Friday

A report ranking states by risk of violence during Black Friday was recently released by Reviews.org. Included in the report are the employers that have the most incidents during Black Friday.

State News

Florida

  • Department of Economic Opportunity announced that the statewide average weekly wage paid to injured workers by employers will be $939 starting Jan. 1.

Minnesota

  • A total of 101 fatal work-injuries were recorded in Minnesota in 2017, an increase from the 92 fatal work-injuries in 2016 and 74 fatal work-injuries in 2015. More information

Missouri

  • The Department of Insurance is recommending a 3.5 percent decrease in workers’ compensation insurance loss costs for 2019, the fifth year in a row rates will decrease.

New York

North Carolina

  • The Workers’ Compensation Research Institute’s (WCRI) Benchmark shows that medical payments per workers’ comp claim decreased significantly since 2013, falling 6 percent each year through 2016.
  • The Industrial Commission has finalized settlement agreement rules, The “Group 2” rules aimed to clean up some inconsistent language and streamline the settlement process, as well as clarify wording relating to attorney’s fees. The rules took effect Jan. 1.
  • The Commission approved Group 1 rule changes, which took effect Dec. 1. Medical motions, responses and appeals on medical motions must be submitted electronically and must include the opposing party’s position on the matter.

Pennsylvania

  • Insurance commissioner approved two loss cost reductions that together will amount to a 14.74% decrease, starting Jan. 1. Loss costs are one of many factors that determine premiums for workers’ comp insurance.
  • Department of Labor and Industry reported that the maximum compensation rate will rise by 2.3%, to $1,049 per week, starting Jan. 1. It’s website offers a chart to determine compensation based on the employee’s average weekly wage.
  • Department of Labor and Industry announced that it has adopted the Red Book, published by Truven Health Analytics, to determine the average wholesale price of prescription drugs.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Bank pays $700,000 for inflexible disability policy

A bank has agreed to pay $700,000 to settle an EEOC lawsuit for violating the ADA. Hudson City Savings Bank, which merged into Wilmington Trust Co., a subsidiary of Buffalo, New York-based M&T Bank Corp. in 2015, had a long-standing inflexible policy of placing employees with impairment or disabilities on involuntary leave or discharging them until it received a medical provider’s clearance to return to work with no restrictions.

Disability discrimination case of health worker who refused vaccine dismissed

In Janice Hustvet v. Allina Health System, a unit of Minneapolis-based Allina Health System merged with Courage Center in Minneapolis. Allina required Courage Center employees who had patient contact to get a vaccine for measles, mumps and rubella as part of a preplacement health assessment screen. An independent living skills specialist refused noting she had many allergies and chemical sensitivities.

When she was fired, she filed a disability discrimination suit under the ADA. The court found that the requirement to undergo a health screen was job-related and consistent with a business necessity. Further, there was insufficient evidence that her chemical sensitivities or allergies substantially or materially limit her ability to perform major life activities.

Workers’ Compensation
Apportionment for pre-existing, asymptomatic conditions allowed – California

In City of Petaluma v. WCAB (Lindh), a police officer suffered head injuries during a training exercise, experienced headaches and lost vision in his left eye. A medical assessment determined that he had a pre-existing vascular condition that predisposed him to a loss of eyesight. While an administrative law judge and the WCAB granted a 40% permanent disability without apportionment, the 1st District Court of Appeal noted statutes provide that permanent disability must be apportioned based on causation, as long as there is substantial medical evidence that the disability was caused, in part, by nonindustrial factors. The condition does not have to manifest itself; an asymptomatic condition, means a condition that is present but for which there aren’t any symptoms.

The court therefore ordered the case sent back to the board to issue an award apportioning 85% of Lindh’s disability to his pre-existing condition, and 15% to his industrial injury.

Workers’ fraud means carrier can seek modification of benefits – Florida

Florida’s statute allows a judge of compensation claims to change benefits if there is a change in condition or if there was a mistake in a determination of fact. In U.S. Fire Insurance Co. v. Hackett, the carrier had been paying for around-the-clock attendant care provided by the husband and daughter of the injured worker. Over 25 years after the accident, the injured worker stopped seeing her treating doctor.

The carrier then conducted surveillance and found she was not receiving all the attendant care for which they were paying and questioned the need for continued care. While a judge agreed that the husband and daughter were deceiving the carrier, she denied the carrier’s petition for modification, reasoning that the evidence established fraud, not a change in medical condition. She also stated she did not have the authority to compel an IME. The Court of Appeal for the 1st District disagreed and reversed the decision.

Injured worker cannot sue third party – Illinois

In A&R Janitorial v. Pepper Construction Co.; Teresa Mroczko, an employee of a janitorial service was cleaning an office building. At the same time, a subcontractor was replacing carpets and a desk that had been placed in an upright position fell and injured the custodian. She collected workers’ comp benefits from her employer, but did not file a timely personal injury action against the construction company.

Under Illinois law, if a worker does not file a personal injury action, her employer can. While the litigation was pending, the worker filed her own action, but was denied as untimely. Later, she filed a petition to intervene in her employer’s case. While a judge denied the petition, the Appellate Court reversed and the case went to the Supreme Court.

The Supreme Court reversed on res judicata grounds – the matter had already been adjudicated by a competent court and may not be pursued further by the same parties.

Temporary staffing employee cannot sue assembly plant – Indiana

An employee of a temporary staffing agency was assigned to work in an assembly plant. When her hand was crushed by a punch press and a finger was severed, she collected workers’ comp from her employer, the temporary staffing agency. Later she filed suit against the assembly plant, claiming negligence.

The assembly plant argued that it was immune from civil liability since the worker was an employee and the courts agreed. The Indiana statute provides “a lessor and a lessee of employees shall each be considered joint employers of the employees provided by the lessor to the lessee.”

Attorney’s text message to IME does not bar medical report and testimony – New York

In Robert G. Knapp v. Bette & Cring LLC, Workers’ Compensation Board, a divided appellate court ruled that the Workers’ Compensation Board erred in barring the introduction of the IME’s report and testimony at a later hearing because the attorney sent a text message to the physician and not the opposing counsel.

The message requested an update on the loss of use of the worker’s left foot, which had been determined at 40.5% for comp benefits. Following the exam, the IME found an 88% scheduled loss and the Board reopened the case. The Board credited the employer’s physician’s report and awarded a 50% loss, precluding the IME’s report.

In overturning the decision, the appellate court noted the message ‘appears to be a limited communication’ and did not reflect an effort to influence the physician’s testimony or opinion.

Injured employee can continue medication beyond its recommended short-term use – New York

In Matter of Byrnes v. New Island Hospital, an appellate court ruled that an injured nurse could continue use of Amrix, a muscle relaxant, which is recommended for only short-term use on the board’s Non-Acute Pain Management Guidelines, but which she had been using for over 16 years. The injured worker’s doctors argued that the medication, in combination with other therapies, allowed her to perform the activities of daily living and to continue working as a nurse and the effects of the drug vary by individual.

The court supported the board’s finding that the medication was medically necessary.

Additional compensation awards subject to durational limits – New York

In Mancini v. Office of Children and Family Services, the state’s highest court ruled the additional compensation awards permissible under Section 15 (3) (v) of the Workers’ Compensation Law are subject to the durational limits set out under Section 15(3)(w) – those for workers with non-schedule injuries. The ruling is a continuation of the state’s trend toward caps on benefits that started with the 2007 reforms.

Supreme Court overturns compensability award based on preexisting condition – North Carolina

In Pine v. Walmart Associates, a long-time employee fell and was released to return to work, but continued to experience pain. A few months later, imaging revealed nerve damage and she filed a workers’ compensation claim. Walmart accepted liability for the right shoulder and arm injuries, but denied liability for the condition of her cervical spine as well as other injuries, since she had a pre-existing degenerative disc disease.

The Industrial Commission found her injuries and subsequent pain were the result of the earlier fall and were compensable based on the Parson’s presumption that injured workers should not be required to prove their need for treatment was related to the original injury every time they seek further medical care. While noting the commission applied the incorrect standard in determining compensability, the Court of Appeals affirmed.

While this was under appeal, legislation was enacted that amended the statute, Section 97-82(b), to clarify that the Parsons presumption applies only to the specific injury that was accepted on a Form 60. Since the statute was applicable to all cases not yet resolved, the worker was not entitled to a presumption that her other conditions were compensable. Further, it was unclear if the commission made findings of causation independent of the application of the presumption; therefore, the decision had to be set aside.

Petition for civil contempt cannot compel interest payments on benefits delayed while employer appealed award – Missouri

In Smith v. Capital Region Medical Center, a widow was awarded benefits for the death of her husband. When the employer appealed the award, there was a delay of about 1.5 years before the Court of Appeals affirmed it. The widow filed a petition for civil contempt to compel the employer to pay the interest owed, but the court noted Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money.

First employer liable for reoccurrence of injury of worker hired through labor union – Nebraska

In Weyerman v. Freeman Expositions, a stagehand was a member of a local union. The union had a collective agreement with Complete Payroll, which was considered the employer of members of Local 42 when they worked on its jobs, but the union also had agreements with other companies, including Freeman Expositions, which specified it was the “employer” when union members were working on its jobs.

The stagehand was injured while working for Freeman and the treating doctor cleared him to return to work in about a week. Complete Payroll sent the worker to another job, but he was unable to perform because of back pain. Then he was cleared to return to work, but did not go back and began seeing another doctor and filed for workers’ compensation.

The workers’ compensation court found he suffered an injury to his back while working for Freeman Expositions and that he suffered a recurrence of the injury several weeks later and he had not reached MMI. While the Court of Appeals acknowledged conflicting evidence, it affirmed the decision that Freeman was liable for both injuries.

Question of disability limits benefits for daughter with incurable eye disease – Pennsylvania

In Aqua America v. WCAB (Jeffers), a worker was killed in an auto accident, leaving behind a wife and four children. Under the law, payment of benefits to minor children continue until they reach the age of 18 and beyond, if they have a disability.

His daughter suffers from an incurable, progressive eye disease, which will eventually leave her legally blind. The widow sought dependency benefits that would continue after her daughter turned 18.

While a workers’ compensation judge and the Workers’ Compensation Board approved the daughter’s benefits beyond the age of 18, until the employer could prove she was capable of self-support, the Commonwealth Court overturned. It noted disability involves “not merely physical impairment, but loss of earning power” and there was no evidence regarding loss of earning power.

Patient’s ulcer not attributable to pain medications – Tennessee

In Steak N Shake v. Yeager, a restaurant worker suffered serious injuries in a fall and was given prescriptions for several pain medications. A week after his fall, he returned to the hospital complaining of weakness, dizziness and chest pain and a doctor posited that the ulcer was likely caused by the combination of meds. The Department of Labor ordered the restaurant to pay for his care.

His hospital bill was over $48,000 and the restaurant contested it by filing a civil suit against the worker. In so doing, they obtained admissions that the worker had taken more meds than prescribed and he consumed an average of three ounces of liquor daily. While a trial judge upheld the award, the Special Workers’ Compensation Appeals Panel reversed and the Supreme Court upheld the Panel’s decision not to award benefits.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Revised Beryllium Standard for General Industry proposed

The proposed rule, published in the Dec. 11 Federal Register, would revise provisions regarding recordkeeping, personal protective clothing and equipment, written control exposure plans, disposal and recycling, medical surveillance, and hazard communication. It also would change or add six terms in the “definitions” paragraph of its regulations: beryllium sensitization, beryllium work area, chronic beryllium disease, CBD diagnostic center, confirmed positive and dermal contact with beryllium.

Another proposed change is removing Appendix A, which lists suggested controls, and replacing it with a new Appendix A, “Operations for Establishing Beryllium Work Areas.”

The enforcement date for the provisions affected by this proposal was December 12, 2018. While this rulemaking is pending, compliance with the standard as modified by this proposal will be accepted as compliance. The deadline to comment on the proposed rule is Feb. 11.

Initiative to increase awareness of trenching and excavation hazards and solutions launched in southeastern states

As part of the agency’s focus on trenching safety, area offices in Alabama, Florida, Georgia, and Mississippi have launched an initiative to educate employers and workers on trenching safety practices. They are reaching out to excavation employers, industry associations, equipment rental organizations, water utility suppliers, and national and local plumbing companies to educate them to identify trenching hazards. Compliance assistance resources are available on the updated Trenching and Excavation webpage.

CPWR infographic provides trench safety tips

CPWR, The Center for Construction Research and Training, developed an infographic focusing on trench safety, including best practices to protect workers in trenches.

(English / Spanish)

Winter weather resources

The Winter Weather webpage provides information on protecting workers from hazards while working outside during severe cold and snow storms. This guidance includes information on staying safe while clearing snow from walkways and rooftops.

Court ruling: general contractors can be cited for hazardous conditions at multi-employer worksites, even if those conditions do not directly affect their own employees

The U.S. Court of Appeals for the 5th Circuit, which covers Louisiana, Texas and Mississippi, recently overturned a ruling of the OSHRC that Hensel Phelps Construction Co., a general contractor, could not be held liable for violations from one of its subcontractors, under the multi-employer work site policy despite it not having any employees exposed to the hazard.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit aligned with seven other federal circuit courts in granting OSHA authority to issue citations to controlling employers.

Certification organization releases employer guides on updated crane operator requirements

The National Commission for the Certification of Crane Operators has published three employer guides on the updated crane operator requirements, which went into effect Dec. 10. The two-page guides address the rule’s training, certification and evaluation regulations.

(Training / Certification / Evaluation)

Area offices must use four-part test when citing respiratory hazards without PELs

Area offices must apply a four-part test before issuing General Duty Clause citations for respiratory hazards that do not have a permissible exposure limit, according to a memorandum sent to regional administrators.

The memo, issued Nov. 2, notes that area offices cannot base a General Duty Clause citation on only a “measured exposure” in excess of an occupational exposure limit or a documented exposure to a “recognized carcinogen.” Instead, they must use the following tests in those situations:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
  2. The hazard was recognized.
  3. The hazard was causing or was likely to cause death or physical harm.
  4. A feasible and useful method to correct the hazard was available.

Enforcement notes

California

  • Santa Cruz-based Future2 Labs Health Services Inc., a manufacturer of cannabis products faces $50,470 in penalties for 10 violations, following an explosion that left a worker seriously injured.
  • A Riverside construction company, Empire Equipment Services Inc., was cited $66,000 for serious workplace safety violations that resulted in the death of a worker when a 17-foot-deep trench collapsed.
  • The U.S. Army Reserve 63 Regional Support Command at a Sacramento maintenance facility was issued safety violations, after a federal civilian employee was fatally injured when the automated lifting mechanism of a utility vehicle cargo box failed and pinned him between the bed and the vehicle frame
  • Southern California Edison received six citations, totaling $95,435 in penalties, after a worker suffered a serious electric shock. Inspectors determined that the company failed to control hazardous energy, isolate exposed underground cables with protective coverings, and eliminate all possible sources of backfeeding energy.

Florida

  • Jacksonville-based Derek Williams, operating as Elo Restoration Inc., was cited for exposing employees to fall hazards at two separate worksites in St. Augustine and Daytona Beach. Inspected under the Regional Emphasis Program on Falls in Construction, the roofing contractor faces $116,551 in penalties.
  • Elo Restoration was also cited, along with Travis Slaughter, operating as Florida Roofing Experts, Inc., for exposing workers to fall hazards at another St. Augustine worksite. Responding to a complaint of unsafe roofing activities, inspectors determined that the companies failed to ensure workers were attached to a fall protection system. Both companies were issued the maximum allowable penalty of $129,336.
  • L.A. Disaster Relief and Property Maintenance LLC, a property maintenance and land clearing company, faces $94,415 in penalties for failing to implement a hazard communication program after an employee suffered burn injuries at a McDavid worksite.
  • Doral-based Nupress of Miami, Inc., a commercial printer, faces $71,139 in penalties for exposing workers to amputation, electrical, and other hazards.
  • Turnkey Construction Planners Inc., a roofing contractor based in Melbourne, was inspected under the Regional Emphasis Program on Falls in Construction and faces $199,184 in penalties for exposing employees to fall hazards.

Georgia

  • Parts Authority LLC, doing business as Parts Authority Georgia LLC, a wholesale auto and truck parts distributor based in Norcross, faces $133,406 in penalties for exposing employees to fire, electrical shock, and struck-by hazards.

Missouri

  • World Wrecking and Scrap Salvage Services Inc., a demolition company, was cited for failing to provide fall protection after two employees suffered fatal injuries at a demolition site in St. Louis and faces penalties of $23,280.

Nebraska

  • Clearwater-based Thiele Dairy was cited for failure to develop and implement safety and health programs related to grain bin entry after an employee suffered fatal injuries and faces penalties totaling $78,899.

Pennsylvania

  • In Secretary of Labor v. J.D. Eckman Inc., an administrative law judge of the OSHRC vacated citations against the bridge and highway construction company related to a workplace incident in which an employee was fatally struck in a traffic control zone. The citation was issued under the General Duty Clause, which the judge found inapplicable under the circumstances.

For more information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Important takeaways from recent studies and reports

Outlook for workers’ comp is stable, but rising medical and legal costs and payroll threaten profits – AM Best Co. Inc.

Currently, AM Best has a stable outlook on the U.S. workers’ compensation industry, the largest component of the U.S. commercial lines segment. However, the well-known rating agency sees some threatening headwinds that can alter the industry’s course. In 2017, growing payrolls helped offset rate decreases and overall soft-market conditions, according to the report. The agency believes that the use of technology, which has provided greater insights into underwriting, pricing and claims decisions, has helped support the line’s health and will continue to do so.

Despite the positive results, AM Best believes the trend of declining rates likely will trigger profit margin compression, possibly as soon as 2019. Unemployment has decreased steadily since 2010; however, AM Best notes that long unemployment rate declines typically are followed by sharp spikes in unemployment, and believes that workers’ compensation writers should be prepared for a downside scenario as well.

In addition, while there has been a decline in loss frequency, medical cost inflation, as well as the potential for accelerating frequency if employers hire less-qualified candidates are a concern. Rising medical loss cost severity, the declining benefit from prior accident year reserve redundancies and high average settlements on cases stemming from attorneys’ growing involvement and litigation, also put pressure on pricing.

Employer takeaway: The report is good news about the stability of rates in the short term. It also provides insights as to how insurers will be evaluating risk. The continued growth of technology in underwriting and pricing means that a company’s risk profile is critical. Insurance companies have become quite sophisticated and rates will be based on their perception of your risk. The way to get the best rates is to improve your risk profile – not bidding and quoting. There are trends and claims that are red flags for underwriters, including claim severity, high medical costs, and excessive attorney involvement. If you have claims in these categories, it’s a good idea to document special circumstances as well as actions taken to prevent future occurrences.

Employee care concern and satisfaction -WCRI

An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested, according to Comparing Outcomes for Injured Workers reports by the Workers Compensation Research Institute (WCRI). Telephone interviews were conducted with close to 10,000 injured workers from 15 states who were hurt at work between 2010 and 2014. The workers interviewed live in Arkansas, Georgia, Kentucky, Florida, Iowa, Indiana, Tennessee, North Carolina, Virginia, Minnesota, Michigan, Pennsylvania, Wisconsin, Massachusetts, and Connecticut.

Among the findings:

  • An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested.
  • Between 12% and 21% of injured workers reported “big problems” getting the service they or their primary provider wanted, with 10 of the states falling in the 17% to 18% range. Pennsylvania had the lowest rate of 12%.
  • Between 11% and 20% reported being “very dissatisfied” with their care.
  • Thirteen percent of workers said they did not return to work for at least a month after their injury.
  • Between 6% and 11% of injured workers report a significant loss of income due to injury at the time of the interview.

Employer takeaway: The data reinforces the message that employers must be proactive and vigilant in managing workers’ comp. This is not new “news” – recovery-at-work programs, medical management best practices, and open lines of communications among all stakeholders are the cornerstones of a successful program.

First-ever industry breakdown of drug use in the American workforce – Quest

Quest, a leading drug-testing provider, announces the rate of positive drug test results annually based on an analysis of 10 million urine tests. The new data marks the first time Quest has broken it down by industry.

The rate of positive test results for illicit drugs was highest in retail (5.3%), health care and social assistance (4.7%), and real estate rental and leasing (4.6%) sectors in 2017, while the utilities (2.8%) and finance and insurance (2.6%) sectors had the lowest rates. Drug use by the workforce increased each year, and by double-digits over the two years between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed. The highest rates were in consumer-facing industries.

Marijuana was the most commonly detected substance, with the highest drug positivity rate of all drug classes across the majority of industry sectors. Marijuana positivity was highest in accommodation and food services, at 3.5 percent in 2017, more than 34 percent higher than the national positivity rate of 2.6 percent for the general U.S. workforce.

Employer takeaway: With low unemployment and tight job markets as well as legalized recreational marijuana in many states, many employers have dropped pre-employment drug tests for positions that aren’t safety sensitive. The analysis suggests that employers can’t assume that workforce drug use isn’t an issue in their industry. Employers are responsible for ensuring the safety of workers, customers, and members of the general public and this is one of the more vexing areas. Review your written drug policies, clearly communicate expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Court ruling does not affect ACA obligations

The recent court ruling by a federal judge in Texas that the Affordable Care Act (ACA) is unconstitutional, does not affect the coverage and reporting obligations for employers. The ruling is a declaratory judgment and not an injunction to freeze the ACA and most expect the case will make its way to the Supreme Court.

Similar to the past two years, the IRS has extended the original Jan. 31, 2019, deadline for employers to distribute 2018 Forms 1095-C or 1095-B to employees to March 4, 2019. The critical 2019 filing deadlines for forms that detail 2018 coverage are now as follows:

ACA Requirement Deadline
Paper filing with IRS Feb. 28
1095 forms delivered to employees March 4 (extended from Jan. 31)
Electronic filing with IRS April 1

Employers that file 250 or more information returns with the IRS must file the returns electronically. Because of the extension, the 30-day extension that would normally be available on a showing of good cause is not available – March 4 is a hard deadline.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA alert: Injury reporting records take on increased importance and upcoming deadlines

Form 300A posting deadline: February 1, 2019
Electronic rule making update
Form 300A electronic submission deadline: March 2, 2019
How the data is being used: Site-Specific Targeting Initiative

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. Two important dates are approaching. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located in workplaces, no later than February 1, 2019 and kept in place until April 30.

Under the electronic record-keeping rule, certain employers must submit the form electronically to OSHA by March 2, 2019. And there is now an inspection targeting plan based on the data submitted under this rule, subjecting employers to further scrutiny of their injury and illness rates. Given the potential impact for inspections, employers should carefully ensure they submit accurate records. They should also proactively monitor and address patterns in their injury and illness rates to lower recordable injuries.

Form 300A posting deadline February 1, 2019

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work-related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2018 include:

  • Prescription medications, such as an Epi-Pen considered medical treatment beyond first-aid. – [1904.7]
  • Clarification on the use of a cold therapy only setting on a therapeutic device is first-aid – [1904.7(b)(5)(ii)]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. Even if there were no recordable incidents in 2018, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

Electronic rule-making update

Last month, the U.S. District Court for the District of Columbia denied the Trump administration’s motion to dismiss litigation challenging OSHA’s decision to suspend parts of its electronic record-keeping rule. Initiated by three public health advocacy groups, Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists, the lawsuit argued that OSHA’s action was not simply an exercise of enforcement discretion, but rather a complete suspension of a regulatory deadline subject to review.

However, importantly, the federal court also denied a preliminary injunction barring OSHA from implementing its planned delay, noting the advocacy groups had not demonstrated that they will suffer irreparable harm absent preliminary injunctive relief. Also, the court decision was not on the merits of the case, but rather on whether the group had standing to sue or the case should be dismissed as OSHA argued.

Originally, as part of its electronic recordkeeping rule, OSHA mandated that certain employers submit 2017 data from Forms 300, 300A and 301. However, on July 30, 2018 a proposed rule officially eliminated the Forms 300 and 301 data submission requirements. While the Fall 2018 Regulatory agenda had predicted that the proposed regulation would go over to OMB’s Office of Information and Regulatory Affairs (OIRA) on time for the standard to be issued in June 2019, the final draft was submitted earlier than expected on December 7, 2018.

But for many employers this proposed rule does not go far enough. Since it does not rescind the agency’s plan to publish employer information, they argue it puts employers at risk for improper disclosure and release of sensitive employer information. Nor does it formally repeal the provisions regarding post-incident drug testing or incentive programs, although an October 2018 memorandum was issued to clarify these provisions. And the anti-retaliation provisions are unchanged.

Form 300A electronic submission deadline: March 2, 2019

Establishments with 250 or more employees that are currently required to keep injury and illness records under the Recordkeeping Standard, as well as establishments with 20-249 employees that are also covered by the Recordkeeping Standard and operating in certain industries with historically high rates of occupational injuries and illnesses are now required to submit their calendar year Form 300A electronically by March 2, 2019.

How the data is being used: Site-Specific Targeting Initiative

On Oct. 16, 2018, OSHA launched a “site-specific targeting” plan, SST-16, that uses employer-submitted data from 2016 to select non-construction worksites for inspections. The SST-16 directs that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.” The employers are chosen using software that randomly selects the establishments.

Although establishments with elevated DART rates and those that did not submit the required data are the primary targets, establishments with lower DART rates can also be inspected. A random sample of low injury rate establishments on the inspection list will be selected to verify data accuracy.

While OSHA inspections are generally unwelcome, SST inspections are particularly onerous. They are unannounced, comprehensive, and can take significant time and resources. They are not limited to recordkeeping practices, potentially hazardous areas, or operations with an elevated DART rate, and often result in substantial citations. Employers that failed to comply with the electronic reporting requirements for 2016 or reported a high elevated DART rate (compared to industry average rates) would be wise to begin preparing for an inspection.

Despite the expectation that the Trump Administration would significantly lessen the burden of data submission requirements on employers, much of it appears here to stay, at least for a while. There have been fewer shifts in OSHA enforcement and rulemaking than expected by experts, who point to the leadership void at the agency. While Scott Mugno’s nomination was sent to the Senate on Nov. 1, 2017, it has been stalled and OSHA still does not have a Senate-approved Assistant Secretary – the longest ever vacancy.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

EEOC issues FY 2018 Performance Report

In its performance report, the U.S. Equal Employment Opportunity Commission (EEOC) reported significant increases in its outreach efforts and enforcement actions to prevent and remedy employment discrimination. The EEOC secured approximately $505 million and other relief for over 67,860 victims of discrimination in the workplace. The EEOC’s legal staff resolved 141 merit lawsuits, filed 199 more in FY 2018, and filed 29 amicus curiae briefs on significant legal issues in employment discrimination cases.

Non-fatal injuries and illnesses decline – BLS report

The Bureau of Labor Statistics (BLS) report on workplace injuries and illnesses showed a slight decline from 2016 to 2017. There were 2.8 million nonfatal workplace injuries and illnesses reported by private industry employers in 2017, a rate of 2.8 cases per 100 full-time equivalent workers, compared with 2.9 cases in 2016. In manufacturing, sprains, strains and tears were the leading type of injury with a rate of 27.5 cases per 10,000 FTE workers which was unchanged from 2016. For more details

Recreational and medicinal marijuana – midterm results

  • Michigan became the 10th state to legalize the possession and use of recreational marijuana for adults.
  • Missouri and Utah approved the use of marijuana for medicinal purposes.
  • North Dakota rejected a measure to legalize recreational marijuana.

Crashes up in states with legalized marijuana

Crashes have increased by up to 6% in four states that have legalized marijuana for recreational use compared with neighboring states that have not done so, said the Insurance Institute for Highway Safety and the Highway Loss Data Institutes. Data from Colorado, Nevada, Oregon and Washington, which have legalized marijuana, was compared with the control states of Idaho, Montana, Utah and Wyoming. The combined state analysis is based on collision loss data from January 2012 through October 2017.

Bad commutes have driven more than 20 percent of office workers to quit a job, survey shows

Nearly one in five U.S. office workers say they’ve quit a job because their commute was too much, according to the results of a recent survey conducted by global staffing firm Robert Half.

In a survey of more than 2,800 office workers from 28 cities, 23 percent cited a bad commute as a reason for quitting a job. The cities with the most workers resigning for commute-related reasons were Chicago, Miami, New York and San Francisco.

Managing fatigue risk in the tugboat, towboat and barge industry: New guide available

The American Waterways Operators has released a guide on various principles of fatigue risk management.

State News

California

  • Workers’ Compensation Insurance Rating Bureau (WCIRB) released their Workers’ Compensation Aggregate Medical Payment Trends report, which compares medical payment information from 2015 to 2017. There was a cumulative 8% reduction in medical payments per claim from 2015 to 2017. More information
  • Average losses on newer indemnity claims are starting to tick up even as costs for older claims continue to level out or decline, the Workers’ Compensation Institute (CWCI) reports.

Florida

  • The Insurance Commissioner has issued a final order for a 13.8% workers’ compensation rate decrease for 2019, which applies to both new and renewing workers comp policies effective in the state as of Jan. 1. The reduction is slightly larger than that submitted by NCCI (13.4%).

Illinois

  • Legislature overturned the Governor’s veto of the workers’ compensation law to allow medical providers to sue insurers over interest stemming from unpaid bills, among other changes to the way medical claims are managed between doctors and payers. Attached to the new law is an amendment that specifies the medical treatment must be approved under workers’ compensation – and oftentimes by the commission – before interest can be accrued and then collected via the circuit court.

Massachusetts

  • Falls to a lower level were the leading cause of fatal worker injuries from 2014 to 2015, representing nearly 17 percent of the workplace fatalities, according to a report released Oct. 16 by the Department of Public Health.

Minnesota

  • The workplace injury rate fell to the lowest level ever recorded in 2017, to 3.3 nonfatal injuries per 100 full-time workers, reports the Department of Labor & Industry.

North Carolina

  • The nonfatal workplace injury and illness rates reached an all-time low in 2017, according to a new report from the state Department of Labor.

Tennessee

  • The Department of Commerce and Insurance Commissioner approved a 19% reduction in workers’ compensation rates, consistent with NCCI’s recommendation. The reduction will become effective on March 1.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

Workers’ Compensation
ABC test applies only to wage order claims – California

Earlier this year, the Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors. The Dynamax vs The Superior Court of Los Angeles County case was decided for the purposes of the state’s wage orders, but some speculated it might be applied more broadly.

Recently, in Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders, and that other claims continue to be governed by the prior (and more employer-friendly) standard known as the Borello test. It noted: “Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California’s labor protections…[The California Supreme Court] did not reject Borello, which articulated a multifactor test for determining employment status under the Worker’s Compensation Act.”

No coverage for injury that occurred before issuance of policy – Florida

An insurance broker scrambled to get a policy in place for an uninsured employer dated the same day of an employee injury without disclosing the incident to the insurance carrier. In Normandy Ins. Co. v. Sorto, an appellate court ruled that there could be no coverage because insurance laws preclude coverage for losses that have already taken place. The court noted agreement to assume a known loss is not insurance. Insurance is to provide protection against risk. One cannot insure against known losses; there is no risk.

Lunch break injury not compensable – Georgia

In Frett v. State Farm Employee Workers’ Comp., an insurance claims associate had a scheduled lunch break and walked to the break room to microwave her lunch, which she intended to eat outside. In the breakroom, she fell in a puddle of water and a manager instructed her to complete an incident report. While an administrative law judge granted benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

The board found the injury did not arise out of her employment because it occurred while she was on a regularly scheduled break and while she was leaving to attend to “a purely personal matter.” While there was precedent for compensability when a worker is entering or exiting the employer’s property, even during break times, the court said this was a mistake and disapproved of its prior decisions.

Injured employee has right to sue employer under retaliatory discharge statute – Massachusetts

In Bermudez v. Dielectrics, Inc., a worker was placed by a temporary employment agency in a manufacturing facility. She sustained work-related injuries when one of the manufacturer’s employees negligently operated a forklift and several large metal sheets fell on her foot. She received work comp benefits from the employment agency and returned to work at the manufacturer eight weeks later. A few months later, she was hired as a full-time employee at the plant.

Eighteen months later, she filed a third-party action for negligence against the manufacturer and the forklift operator. Two months later she was terminated and she sued.

While a trial judge ruled in favor of the company, an appeals court found that the workers’ compensation law specifically says a worker can initiate a third-party action in addition to receiving benefits through the comp system and that a 1971 amendment eliminated the election of remedies concept (comp remedy or a civil claim). The worker had a right to file her third-party action and she could not be fired for doing so.

Worker on business trip who witnessed killings at a restaurant awarded benefits for PTSD – Michigan

In Dickey v. Delphi Automotive Systems LLC., an employee was at a restaurant in Mexico with clients and workers when he witnessed gunmen kill several people in the restaurant. When he returned to Detroit, he was diagnosed with PTSD. The Commission held it was logical to conclude that one who witnesses a horrific, stressful, and traumatizing event such as a multiple murder could possibly be afflicted with PTSD and that the award of benefits was reasonable. The employer’s examining doctor found that his symptoms were related to the side effects from the medicine he was taking, but the magistrate relied on the opinion of the treating doctors, who were actually increasing the worker’s medications.

Murder of worker by co-worker not work related – Michigan

In Williams v. Park Family Health Care PC, a worker was killed by a co-worker who she previously dated. She had broken off the relationship because he was married and not seeking a divorce. He let himself into the building, killed the worker, set the building on fire, and killed himself.

While the court found the death occurred in the course of employment, it did not arise out of her employment. The feud was personal and not connected to her employment.

Devastating stroke after reaching MMI does not affect permanent total disability benefits – Nebraska

In Krause v. Five Star Quality Care, a housekeeper fell and fractured her right femur. After her surgery she attempted to return to work, but experienced too much pain. About 2.5 years later, she filed a petition in Workers’ Compensation Court seeking temporary and permanent disability benefits. Approximately three weeks later, she suffered a massive stroke that left her incapacitated.

The compensation court, finding that the stroke was unrelated to the work injury or treatment, found she had reached maximum medical improvement prior to her stroke and awarded her permanent total disability benefits (PTD). The company argued that the stroke cut off her entitlement to PTD benefits. The court disagreed, noting that her work-related disability did not cease once she had the stroke.

Treatment guidelines apply to out-of-state providers – New York

In Matter of Gasparro v. Hospice of Dutchess County, a home health aide sustained work-related injuries to her lower back and buttocks while employed in New York and was given a nonscheduled permanent partial disability classification. Ten years later, she moved to Nevada.

Several years later, the workers’ compensation carrier objected to payment of various medical charges from a pain management specialist in Nevada. A workers’ compensation law judge ruled in favor of the medical provider, but the Workers’ Compensation Board reversed and the appellate court agreed.

Although the Board had departed from its prior decisions on the issue, the appellate court found it was rational to require medical treatment be in compliance with the guidelines.

Unreasonable deviation from employment nixes benefits – New York

In Matter of Button v. Button, a farmhand was seriously injured in a vehicular accident as he crossed a road on an employer-owned all-terrain vehicle (ATV) from his employer-provided residence to the farm itself. His residence was across the road from the farm and his girlfriend was moving in that day. He stopped at the house and grabbed a beer and the accident occurred on the way back to the farm.

His comp claim was denied by a judge because he was engaged in a prohibited activity at the time of the accident (drinking) and, therefore, his injuries did not arise out of and in the course of employment. The Board affirmed as did the appellate court, noting there was a verbal warning about drinking on the job and that other employees testified the consumption of alcohol at work was prohibited.

Workers’ Compensation Board must determine if worker is independent contractor – New York

In Findlater v Catering by Michael Schick, Inc., a state appellate court held that a trial court’s finding that a worker was an independent contractor, and not an employee, must be reversed. It found that employment issues must be decided by the Workers’ Compensation Board and the court erred by not holding the matter in abeyance pending a final resolution.

Volunteer can pursue personal injury suit in spite of liability waiver – New York

In Richardson v. Island Harvest, an unpaid volunteer worked as warehouse assistant and signed an agreement, which stipulated he was a volunteer and would not attempt to hold the organization liable for any bodily injuries he suffered in the course of his volunteer activities. He was struck by a forklift being operated by an employee and filed a personal injury suit. While a county Supreme Court Justice granted summary judgment to the organization, an Appellate Court reversed.

“New York courts have long found agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence whether of itself or its employees or limiting its liability on account of such negligence void as against public policy,” the Appellate Division said.

Insurer cannot sue third-party without involvement of injured worker – Pennsylvania

An employee of Reliance Sourcing, Inc, which was insured by The Hartford, was standing in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle. The Hartford paid over $59,000 in medical and wage benefits and sought to sue the responsible parties for damages. The employee did not join in the insurer’s action, did not assign her cause of action to the insurer, and did not seek to recover damages independently.

While the defendants argued The Hartford had no independent ability to commence a subrogation claim directly against them, The Hartford argued it had filed the suit “on behalf of” the employee. In a divided decision, the Supreme Court ruled that absent the injured employee’s assignment or voluntary participation as a plaintiff, the insurer may not enforce its right to subrogation by filing an action directly against the tortfeasor. – The Hartford Insurance Group on behalf of Chunli Chen v. Kafumba Kamara, Thrifty Car Rental and Rental Car Finance Group.

Widow denied benefits for husband’s pancreatic cancer – Tennessee

In Alcoa v. McCroskey, the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel ruled that a widow failed to prove her husband’s cancer was caused by his occupational exposure to coal tar pitch, affirming the decision of a trial judge. The judge found Alcoa’s expert to be more persuasive than the widow’s expert, who relied upon a single medical article, yet that article expressly noted its evidentiary deficiencies. The employer’s expert testified that the employee possessed recognized risk factors for the development of pancreatic cancer that were wholly unrelated to his work exposure to coal tar pitch.

Department-approved settlement not sufficient to compel treatment – Tennessee

In Hurst v. Claiborne County Hospital and Nursing Home, a paramedic was injured in an ambulance accident and also alleged a psychological injury from an October 2000 incident when she encountered a severely abused infant. The claim was settled, but the agreement only addressed her psychological injury. No reference was made to the ambulance accident.

After the settlement was finalized, she filed a new claim seeking benefits for the injuries incurred in the ambulance accident. She settled the claim in exchange for the payment of permanent partial disability benefits and the promise of payment for future medical directly related to her injuries. The Department of Labor and Workforce Development signed off on the settlement, not a judge. Seven years later, she filed a motion to compel payment for medical care which a trial judge granted.

On appeal, the hospital argued that the judge lacked jurisdiction since there was no court order awarding her a right to medical treatment for her physical injuries. The Supreme Court of Tennessee’s Special Workers’ Compensation Appeals Panel found the version of the Workers’ Compensation Law applicable to the 2001 car accident did not provide any mechanism for the enforcement of a department-approved agreement that had not been approved by a judge.

Worker loses benefits for failure to attend FCE sessions – Virginia

On three occasions over a four-month period of time, an employee cancelled a scheduled (and rescheduled) functional capacity evaluation (FCE) session. The employer filed a request to terminate benefits. Although the worker did appear for a FCE one week after the hearing, the worker took no action in the nearly seven-month period between the time the employer filed the request and the date of the hearing. In DeVaughn v. Fairfax County Public Schools, the Court of Appeals upheld the decision of the Workers’ Compensation Commission that there were no mitigating circumstances excusing her lack of effort and no basis for a finding of good faith.

Drivers failure to chock wheel nixes benefits – Virginia

In Callahan v. Rappahannock Goodwill, an appellate court affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated safety rules when he failed to chock the wheel on the employer’s truck during a stop and, hence, could not receive benefits for the injuries he sustained. The record supported that the safety rules were communicated through several methods to the driver and the physical evidence supported the finding that the wheels were not chocked.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Final rule on crane operator certifications issued

As anticipated, the final rule clarifying certification requirements for crane operators, requires certification by type of crane or type of crane and lifting capacity. “Certification/licensing” must be accomplished via an accredited testing service, an independently audited employer program, military training, or compliance with qualifying state or local licensing requirements. Employers also are required to “train operators as needed to perform assigned crane activities” and provide training when it is necessary to operate new equipment.

Most requirements in the final rule became effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. Employers who have evaluated operators prior to Dec. 9, 2018 will not have to conduct those evaluations again, but have to document when those evaluations were completed.

New publication on lockout/tagout and temporary workers

A new bulletin on lockout/tagout explains the joint responsibility of host employers and staffing agencies to ensure that temporary employees are properly protected against the sudden release of stored energy. Prior to beginning work, both employers should review the task assignments and job hazards to identify, eliminate, and control the release of hazardous energy before workers perform service or maintenance on machinery.

Regional Emphasis Program (REP) in Pacific Northwest for fall protection in construction

Enforcement of the REP, which includes Alaska, Idaho, Oregon and Washington, will begin after a period of outreach and education. Enforcement activities will include “onsite inspections and evaluations of construction operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.”

Cal/OSHA emergency regulations approved for electronic submission form 300A by December 31, 2018

The Office of Administrative Law approved the emergency regulations that businesses required to submit the Cal/OSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

Enforcement notes

California

  • Oakland-based general contractor, Bay Construction, Inc., was cited for dismantling a trench box while an employee was still working inside and later killed by a loosened support rail. The company was issued nine citations with $141,075 in proposed penalties, including five classified as general, two serious, one serious accident-related and one willful-serious accident-related.
  • Amazon Landscaping Co. faces six citations and $54,750 in penalties after a worker was fatally injured when a rope he had around his body became entangled in the stump grinder and he was pulled into the cutting wheel.
  • After a series of appeals relating to citations issued to Pinnacle Telecommunications Inc. after an employee suffered serious head injuries from a 7-foot fall from a telecommunications structure, the Alameda County Superior Court affirmed that fall-protection safety orders apply to elevated indoor telecommunications structures and the penalty of $25,560.

Florida

  • PGT Industries Inc., operating as CGI Windows and Doors Inc. in Hialeah, was cited for machine guarding hazards after an employee suffered a partial finger amputation while working on an unguarded punch press. The window and door manufacturer faces $398,545 in penalties, including the maximum amount allowed by law for the violations that can cause life-altering injury.
  • Inspected under the REP on falls, Crown Roofing, LLC, was cited for exposing employees to fall hazards, including installing roofing materials without the use of a fall protection system. The roofing contractor was issued the maximum allowable penalty of $129,336.
  • Inspected under the REP on falls, Panama City Framing LLC was cited for exposing employees to fall hazards at a worksite in Panama City. The company faces $113,816 in proposed penalties.
  • Tom Krips Construction Inc. and Etherna Services Inc. were cited after a lattice boom section of a crane fell onto an employee during disassembly, crushing his foot and ankle at a Fort Lauderdale worksite. Tom Krips Construction Inc. faces $29,877 in penalties, and Etherna Services Inc. penalties total $5,174.

Georgia

  • Dollar Tree Distribution Center, Inc., and U.S. Xpress, Inc., were cited for exposing workers to hazards after an employee was fatally struck by a forklift and face penalties of $130,112 and $12,934 respectively. Both companies were cited for failing to ensure that employees wore high-visibility vests while working at night inside the center and Dollar Tree Distribution Center Inc. was also cited for using a vehicle with a non-functioning headlight, failing to guard a nip point on a conveyor discharge belt, and storing unstable materials on racks.

Massachusetts

  • Northeast Framing Inc., based in Lunenberg, was cited for exposing workers to falls and other hazards following an employee’s fatal fall at an East Boston worksite. The company faces $311,330 in penalties, the maximum allowed by law.

Nebraska

  • Rivera Agri Inc., a provider of temporary agricultural labor, was cited for failing to protect employees working in excessive heat after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island. The company was cited for a serious violation of the General Duty Clause, and faces proposed penalties totaling $11,641.

For more information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Are you still doing annual performance reviews?

The farewell to annual performance reviews began in mid-2015 and more and more employers are restructuring their performance management process. In a blog, Nancy Owen, Senior Human Resource Consultant with East Coast Risk Management, notes that employers need to spend more time collecting information related to their unique environment and culture and examine the pros and cons of the process for reviewing employees.

Employers are realizing that they need to increase their communication to their employees about performance and conduct. Here are her suggestions:

  • “First thing” stand-up meetings, conducted at the beginning of a shift to communicate daily updates and company or departmental news to employees, so that employees never feel “in the dark.”
  • Monthly one-on-one meetings between supervisor and employee, pointing out what is going well and what is not according the goals and competencies set forth at the beginning of the year.
  • Quarterly and/or mid-year reviews, when any adjustments or changes should take place:Are the employee’s goals still realistic?

    Has the employee moved to a different department or taken on new tasks?

  • Year-end discussions, carried out in a non-formal meeting, to review the last year and what could have been done better or needs to change for the upcoming year

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com