OSHA watch

Enforcement of anti-retaliation provisions of injury and illness tracking rule delayed until December 1

The U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions. The anti-retaliation provisions were previously delayed until Nov. 10 to allow time for outreach to the regulated community. Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

Memorandum interpreting the new anti-retaliation provisions includes guidance on disciplinary, incentive and drug testing programs

A memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule, “Improve Tracking of Workplace of Injuries and Illnesses,” provides examples of how disciplinary, drug testing, and incentive programs may be viewed by regulators. While programs should never deter employees from reporting work-related injuries or illnesses, the rule does not ban programs that are appropriate.

For example, pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report would violate the rule. On the other hand, disciplining an employee for bypassing a guard, contrary to the employer’s safety policies, even if the employee is injured would not violate the rule.

The memorandum also makes it clear that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule. However, “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.”

Incentives are addressed with this example: An employer promises to raffle off a $500 gift card at the end of each month in which no employee sustains an injury that requires the employee to miss work. But, if the employer cancels the raffle one month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate the rule. Alternately, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would be allowed.

Safety and Health Program Management Guidelines updated for first time in 30 years

Designed to help employers establish a methodical approach to improving safety at their workplaces, the core elements of the updated Safety and Health Program Management Guidelines include:

  • Management Leadership
  • Worker Participation
  • Hazard Identification and Assessment
  • Hazard Prevention and Control
  • Education and Training
  • Program Evaluation and Improvement
  • Communication and Coordination for Host Employers, Contractors and Staffing Agencies

D.C. Circuit vacates memorandum narrowing the retail exemption from the PSM standard

A July 2015 memorandum that required coverage under the onerous PSM standard for many previously exempt fertilizer and farm supply retailers has been vacated by the D.C. Circuit court. The petitioners’ challenge argued that the memorandum was actually a standard, not an interpretation, and that, in turn, was required to follow rulemaking procedures, including notice-and-comment requirements, and the court agreed. This is unlikely to go away, but stakeholders will have the opportunity to be heard through notice-and-comment procedures.

 

Proposed rule changes

Improvements to respiratory protection standard

A Notice of Proposed Rulemaking was issued to add two quantitative fit-testing protocols to the agency’s Respiratory Protection Standard. Comments are due by Dec.6.
Rules proposed to streamline 18 standards

Eighteen changes to the agency’s recordkeeping, general industry, maritime and construction standards are proposed to revise provisions in standards that may be confusing, outdated, or unnecessary. The Standard, New England’s Insurance Weekly, has published a good summary. Comments are due by Dec. 5.

 

New fact sheets focus on analyses

Root causes explains why and how to perform a root cause analysis after an incident or near miss occurs at a facility.

The Use of Metrics in Process Safety Management Facilities provides employers with a list of metrics tracked by facilities in the Voluntary Protection Programs that handle highly hazardous chemicals.

 

New video on how to file a complaint

A one-minute video, available in English and Spanish, is designed to inform workers exposed to jobsite hazards of their right to file a complaint.

English

Spanish

Case study addressing the safety obligations of staffing companies and host employers to temporary workers

The National Safety Council and the American Staffing Association have jointly published a case study based on past citations issued by OSHA in connection with temporary workers’ on-the-job injuries.

Recent fines and awards

California

  • California OSHA fined La Pafe Inc. (Le Chef Bakery) in Montebello $196,450 after a worker suffered fractures and lacerations to his hand and fingers. The company failed to ensure that the machine could not be activated during cleaning and servicing.

Florida

  • Carlson Enterprises, a roofing contractor, faces fines of more than $212,000 for exposing workers to dangerous fall, other hazards at Jacksonville work site.
  • On the first day of his job, an 18-year-old roofer fell approximately 14 feet to the ground at a construction site in Bay Harbor Island and was partially impaled through his upper thigh and buttocks when he landed on a metal fence post. Fast Carpentry I Inc. was cited for a failure to provide fall protection and training. Proposed fines are $152, 145.
  • Inspected under the Regional Emphasis Program (REP) on Falls in Construction, Panama City Framing LLC, a framing contractor, faces fines of nearly $360,000 for exposing workers to falls and other safety hazards. The employer has been cited four times since 2012.
  • Monster Tree Service of Fort Lauderdale faces penalties of $133,617 in a worker’s fatal electrocution, when an aluminum pole saw made contact with overhead power lines.

Georgia

  • Columbia Recycling Corp. of Dalton faces nearly $318,000 in fines for repeated and serious violations related to hearing conservation, chemical storage, energy controls and other hazards following an inspection initiated by a complaint.
  • Home Live Roofing LLC of Marietta was cited for the sixth time for exposing workers to fall hazards. Inspected as a result of a complaint, the company faces $101,121 in fines.
  • Paper product manufacturer, AJM Packaging Corp., was cited for lacking safety procedures after a worker suffered a partial amputation to his right hand’s middle finger. Proposed fines are $68,000.

Illinois

  • Og Plumbing, a Chicago plumbing contractor, was placed in the Severe Violator Enforcement Program (SVEP) after three job sites were found in violation of standards related to trenching in one month. Proposed penalties are $275,728.
  • Viscofan USA Inc., a Global meat-casing manufacturer, of Danville, was cited for exposing workers to slip, trip and fall hazards and failure to properly mount, locate and identify portable fire extinguishers. Proposed penalties are $86,225.

Indiana

  • Townsend Tree Service Company LLC of Muncie was cited after a 23-year-old worker succumbs to a fatal heat stroke in 110-degree weather. Proposed penalties are $12,471.

Massachusetts

  • ET&L Construction Corp. of Stow faces $119,597 in fines for willful and serious safety violations related to a trench collapse.
  • Stavis Seafoods Inc., a Boston seafood processor, was cited for 20 serious violations related to an ammonia leak in which an employee died. Proposed fines are $173,168.
  • Crown Equipment, a powered industrial truck sales and repair facility based in Woburn, was cited for failing to provide adequate training and safeguards to protect employees while they serviced rim wheels. An employee sustained serious head injuries when a tire exploded. Proposed penalties are $62,355.

Mississippi

  • Hankins Lumber Co. of Grenada faces $80,937 in penalties after a saw operator was killed when an unguarded sprocket on a rotating shaft entangled his clothes.

New York

  • A Syracuse roofing contractor, The Roofing Guys Inc., with a history of safety violations, faces $96,000 in fines for inadequate fall protection.

Pennsylvania

  • Quick Carpentry Inc. of Philadelphia was fined $105,000 for exposing workers to fall hazards at a South Jersey construction site. It was inspected under the local emphasis program focused on falls in construction.
  • York Building Products, a Middletown masonry company, agrees to pay $135,000 in back wages and damages to a plant manager whom it terminated less than two weeks after hiring him. The manager had voiced multiple complaints about safety and health conditions, including excessive respirable dust and exposure to noxious chemicals.

Wisconsin

  • An Arpin contractor, Earth, Inc. faces penalties of $93,532 for allowing its employees to work in a trench without cave-in protection.
  • After five employees of A&A Environmental Services Inc. became ill from carbon monoxide exposure renovating a New Glarus nursing home, inspectors found that the workers were also exposed to asbestos hazards. Proposed fines are $243,716.
  • Dedicated Logistics Inc. of Hudson faces $109,211 in fines for exposing workers to powered industrial vehicle and electrical hazards.
  • R. Stresau Laboratory Inc., an explosive component manufacturer, faces nearly $143,000 in fines for exposing workers to lead and other hazards at its Spooner facility.

Detailed descriptions of the citations above and other OSHA citations can be found here.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Things you should know

Workers’ Comp benefits decline while employer costs rise

Workers’ Compensation: Benefits, Coverage, and Costs provides comprehensive data on workers’ compensation benefits, coverage, and employer costs for the nation, the states, the District of Columbia, and federal programs. Benefits as a percent of payroll declined in 46 states between 2010 and 2014, continuing a national trend in lower benefits relative to payroll that began in the 1990s.

Costs to employers, on the other hand, continue to climb. Between 2010 and 2014, employer costs associated with workers’ compensation grew at a rate nearly five times faster than benefits. Researchers cited the recovering economy, state law changes, declining levels of injury, and quicker return-to-work as contributing factors.

Treatment costs of opioid abuse and dependence soar

FAIR Health, a national, independent, nonprofit organization issued a white paper, The Impact of the Opioid Crisis on the Healthcare System: A Study of Privately Billed Services, which examined overall medical claims data from 2011 to 2014 and found a 1,000% increase in treatment costs related to opioid abuse and dependence, along with a 1,375% increase in the maximum amount an insurer will pay in expenses related to opioid addiction.

Study links workplace wellness programs and mental health

In a study of workplace wellness programs and mental health, researchers at UCLA note: “This data strongly suggests that workplace wellness plans have a positive effect on people’s mental state of mind as well as their physical wellness.” “Targeting workplace mental health, and using such exercise and wellness programs can effectively reduce absenteeism, disability and productivity losses, and reduce the healthcare costs associated with those issues.”

The study is available in the Occupational Medicine journal.

CMS lowers SCHIP reporting threshold for workers’ compensation cases

The Medicare, Medicaid and SCHIP Extension Act of 2007 required that settlement thresholds be established wherein settlements falling below the threshold would not have to be reported to CMS and conditional payments would not need to be reimbursed. The initial settlement threshold for both workers’ compensation and liability cases was established at $1,000.

On September 26, 2016, CMS issued a memorandum lowering the workers’ compensation submission threshold to $750. This means insurers will be required to report an additional number of settlements to CMS in accordance with SCHIP.

Where cases can be settled for $750 or less and Medicare made conditional payments, the settlement can proceed without the need for SCHIP reporting or conditional payments reimbursement.

Best practices for gloves in healthcare setting

The Association for Professionals in Infection Control and Epidemiology has created a flier detailing best practices for proper use of different types of gloves in health care settings. The flier outlines what health care workers should and should not do when using sterile, non-sterile, non-medical, and utility gloves.

MSHA issues safety alert on vacuum operations

The Mine Safety and Health Administration (MSHA) is urging miners and any other industry that uses vacuum trucks (telecom, water/sewer utilities, etc.) to exercise extreme caution in and around vacuum trucks because of potentially life-threatening hazards, such as static electricity-related hazards that can result in shock, explosions and secondary injuries. The safety alert also offers best practices.

Federal government heightening debate on federal oversight of state workers’ comp programs

In a report “Does The Workers’ Compensation System Fulfill Its Obligations to Injured Workers?” released Oct. 5, the U.S. Labor Department is elevating the debate over whether federal oversight of state workers’ comp programs is warranted.

NIOSH guidance to health care settings on drugs and PPE

NIOSH has added 34 drugs to its list of those with the potential to be hazardous to health care workers.The newly added drugs are presented in three categories: antineoplastic drugs, non-antineoplastic hazardous drugs, and drugs with reproductive effects.

The NIOSH List of Antineoplastic and Other Hazardous Drugs in Healthcare Settings, 2016 also updates guidance on engineering controls and personal protective equipment for health care settings.

 

State News

Florida faces 14.5 percent average increase in workers’ comp premiums

State regulators have approved a 14.5 percent average increase in workers’ compensation insurance premiums, which would become effective Dec. 1 for new and renewal business.

California: new regulations to protect health care workers from workplace violence

Regulations intended to protect California’s health care workers from workplace violence have been unanimously approved by the state’s Occupational Safety and Health Standards Board and are scheduled to go in effect in January.

Pennsylvania launches worker misclassification public awareness campaign

The Pennsylvania Department of Labor & Industry has launched a public awareness campaign about worker misclassification, funded by a $473,000 grant from the U.S. Department of Labor.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Legal Corner

ADA
Truck company’s sleep study requirement based on driver BMI upheld by eighth circuit court

The U.S. Court of Appeals for the Eighth Circuit allowed Crete Carrier Corporation’s driver sleep study testing requirement in a lawsuit challenging the practice under the Americans with Disabilities Act (ADA). Based on a medical advisory from the Federal Motor Carrier Safety Administration (FMSCA), the company established a sleep study requirement for all drivers with a Body Mass Index (BMI) of 35 or over.

A driver argued that he had a good safety record, had no documented sleep issues at work, had recently received a Department of Transportation (DOT) medical certification, and obtained a letter from his private physician questioning the necessity of the test.

Rejecting the argument that decisions to seek medical information from employees must be made on an individualized basis, the court confirmed that medical examinations may be required of a class of workers, as long as the employer has a “reasonable basis for concluding that the class poses a genuine safety risk and the exam requirement allows the employers to decrease that risk effectively.” The court concluded that the sleep study requirement was job-related “because it deals with a condition that impairs drivers’ abilities to operate their vehicles” and was “consistent with business necessity” because it would “determine whether an individual has [OSA], a condition that poses a public safety hazard.”

 

Workers’ Compensation
Recycler found guilty in death of employee – California

One of the state’s largest recyclers, rePlanet LLC, was convicted and found guilty in connection with the death of an employee who was crushed by a 35,000-pound earth mover. The criminal plea agreement puts rePlanet on probation for three years, calls for payment of $500,000 in restitution for the victim’s family, a $400,000 fine stayed pending successful completion of probation, and a $21,000 fine paid to the court. In lieu of additional fines, rePlanet will pay $140,000 to the California District Attorneys Association Worker Safety Training Fund, and nearly $90,000 to Cal-OSHA for fines and training costs.

 

Parking lot fall not compensable – Florida

In Quinn v. CP Franchising , an employee fell in a parking lot that her employer did not own but had the rights to a limited number of spaces as part of their office lease. Generally, a worker’s fall while traveling to or from her workplace is not compensable, but there can be exceptions if there are “special hazards” or while traveling between two workplaces. Since there were no special hazards and the employer did not own the lot, the exceptions did not apply.

 

Appeals court rules employer cannot be compelled to pay for housing and automobile insurance for a paraplegic employee that are unreasonable – Florida

In Kilyn Construction v. Pierce , a fall from a roof left an employee a paraplegic and as part of the settlement he was provided a van and paid the difference between the cost of his handicap-accessible apartment and his pre-accident housing. He lost his apartment and found a much larger home costing about three times as much. While the 1st District Court of Appeal acknowledged that the company did little to help the employee find housing, it ruled that an employer could not be compelled to pay for housing and automobile insurance without a finding that the costs demanded by the employee were reasonable.

Office worker who fell off chair denied benefits – Illinois

In Noonan v. IWCC , a worker injured his wrist when his office chair rolled out from underneath him as he was leaning over to pick up a pen from the floor. While an appellate court acknowledged that there were procedural errors by a circuit court judge and the Workers’ Compensation Commission in handling the case, it agreed with the finding that the job did not expose the worker to a greater risk of injury than a member of the public would a face in performing the same action.

Subcontractor has no viable claim against railroad – Illinois

In Carney v. Union Pacific Railroad Co., an independent contractor was engaged to remove abandoned bridges and entered into a handshake agreement with a subcontractor to assist in the bridge removal work. During the removal of one of the bridges, the subcontractor’s son suffered a serious injury, severing both legs below the knees. The subcontractor filed suit against a number of parties, including the railroad. All suits were settled except for the railroad, which went to the state Supreme Court.

According to the decision, “under the common law, one who employs an independent contractor is not liable for harm caused by the latter’s acts or omissions.” Although a hiring entity may be liable for its own negligence where it retains some control over the independent contractor, in this case the railroad did not retain control.

No loss of earning capacity nixes disability benefits for nursing supervisor – Mississippi

The state Supreme Court overturned an award of disability benefits to a nursing supervisor who injured her back in a workplace fall and missed six weeks of work. In Hudspeth Regional Center v. Mitchell , the supervisor returned to her old job but was fired seven months later for insubordination and excessive tardiness.

After losing her job, she had a functional-capacity evaluation, which found she should not lift weights in excess of 20 pounds and should avoid prolonged standing. An ALJ, the WC Commission, and an appeals court agreed that these restrictions from the injury resulted in a total loss of earning capacity. The Supreme Court disagreed since she had returned to work in the same position at the same rate of pay.

Widow recovers death benefits when husband in fatal, unexplained, one-car accident – Missouri

In Campbell v. Trees Unlimited, Inc. , 2016 Mo. App. LEXIS 942, a salesperson who drove an employer-owned vehicle, was killed in a one-car accident about seven miles from his office. He was on a route he typically used for customer visits, phone records showed he had called a customer that morning, and there was no evidence that he was conducting personal business. While the employer argued he was not in the course and scope of employment because he had not performed work that morning and “was still in transit between his home and the principal place of employment,” and an idiopathic condition was the cause of the accident, a judge, the Commission and the appellate court all agreed that the widow had met her burden of proof and awarded death benefits and funeral expenses.

Counter claims not permissible in workers’ comp cases – Nebraska

In Interiano-Lopez v. Tyson Fresh Meats , 294 Neb. 586 (2016), the Nebraska Supreme Court determined counterclaims are not permissible in workers’ compensation cases. However, the Court did imply that the employer has the option of filing a Petition to determine the rights of the parties in lieu of filing a counterclaim.

Worker forfeits benefits for hiding fact she was working – New York

In Leising v. Williamsville , an appellate court overturned a finding by the Workers’ Compensation Board that a worker had not forfeited her entitlement to benefits by concealing the fact she was holding down a job. Although the worker at one point indicated she was working at a seasonal part-time job, her attorneys later contacted the adjuster and said that she was not working and the doctors’ records showed she was not working.

The court concluded, “remittal to the board is necessary for a determination as to whether claimant’s failure to disclose her seasonal work was material, and done both knowingly and for the purpose of obtaining benefits.”

Accident reconstruction experts squash worker’s claim – North Carolina

In Yarborough v. Duke Univ. , 2016 N.C. App. LEXIS 978, two experts in biomechanics and accident reconstruction disputed a claim by a patient food service technician that a swinging door caused a torn rotator cup. While the deputy commissioner entered a finding that the injury was compensable, the appellate court noted the Full Commission, not the deputy commissioner who hears the case, is the sole judge of the credibility of witnesses. The Commission found the employer’s medical expert and the reconstruction experts’ testimony most convincing.

Commercial insurers investigation of employment status not “bad faith” refusal to pay – Pennsylvania, federal

In Bodnar v. Nationwide Mut. Ins. Co. , 2016 U.S. App. LEXIS 17903, a worker was killed in a ditch cave-in and his widow filed a tort action against the owner of a masonry business alleging negligence. In this case there was conflicting evidence about employment status and the court ruled it was appropriate for the insurer, under the business’ commercial general liability policy, to investigate whether the deceased worker was an employee under Pennsylvania law. The widow’s separate civil action for the insurer’s alleged bad faith could not withstand a summary judgment motion.

Firefighters cancer claim was time barred – Pennsylvania

In Fargo v. WCAB (City of Philadelphia), a firefighter filed a petition for benefits, blaming his work for his bladder and skin cancers. While the Pennsylvania Workers’ Compensation Act provides a presumption that a firefighter who develops cancer after being exposed to a known carcinogen has suffered a compensable occupational disease, disability or death resulting from cancer must occur or manifest within 300 weeks of the last date of exposure to carcinogens, and a firefighter must file a comp claim within 600 weeks of the last exposure. Since the claim was filed more than 600 weeks after the last day he could have suffered an occupational exposure to a carcinogen, the claim was time barred.

 

Staffing agency and township are both employers under “borrowed-servant” doctrine – Pennsylvania

In Nagle v. TrueBlue , a worker from a temporary staffing agency was sent to assist with garbage collection in Rye Township and was seriously injured when he stepped off the truck before it stopped. As a result of his subdural hematoma and skull fracture, he was unable to manage his own affairs and appointed a guardian. The worker died from complications of the injury and the guardian filed a civil action for negligence, wrongful death and survival against the staffing agency and township.

A judge ruled that the exclusive remedy provisions of workers’ comp protected both, but the guardian argued the staffing agency was not immune because it did not have control over the employee’s work. The Commonwealth Court found the staffing agency had to be the employer because it was responsible for providing the workers’ compensation benefits and the guardian had filed a penalty petition against them when benefits were not paid in a timely manner. Under the “borrowed servant” doctrine, if a worker’s employer passes on the right to control the work done by an employee to another party, that party becomes an employer as well.

Janitorial worker entitled to PTD benefits for foot injuries and related depression and complex regional pain syndrome – Tennessee

In Mayes v. City of Tullahoma , the Special Workers’ Compensation Appeals Panel of the state Supreme Court ruled that a janitorial worker who developed severe depression and complex regional pain syndrome after suffering two-foot injuries was permanently and totally disabled. A trial court judge found the worker was permanently and totally disabled by the combination of his physical and mental injuries. Although none of the treating doctors said that he was unable to work at an occupation that brings an income, they agreed he had chronic pain syndrome that could interfere with obtaining or maintaining employment.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Tips to address the most common workplace injury – hearing loss

A report from the Centers for Disease Control and Prevention (CDC) warns that work-related hearing loss is the most common work injury and over 22 million workers a year are exposed to unsafe levels of noise. Noise-induced hearing loss can’t be reversed, but it is 100% preventable.

OSHA’s permissible exposure limit for noise is 90 dBA for an eight-hour period. For every 5 dBA increase, the agency’s Occupational Noise Exposure Standard calls for workers to cut their maximum exposure time in half. For example, 95 decibels is safe for up to four hours, 100 decibels is safe for up to two hours, and so on. There are some who argue that these standards are too low and OSHA is planning to review the construction standards, which differ from general industry standards.

For general industry workers who are exposed to noise for eight hours a day at or above a time-weighted average of 85 decibels, OSHA requires employers to provide notification, audiometric testing and free hearing protectors. Employers also have to offer training programs for affected workers.

The Department of Labor estimates that workers’ compensation payments for hearing loss disability total $242 million a year. Employers were penalized $1.5 million for failing to ensure their workers were protected against hearing damage. Even a short-term exposure can cause serious damage or tinnitus, which is the perception of sound in one or both ears, or in the head, when there’s no other source of sound. Hearing loss leads to significant safety issues in the workplace as well as psychological and social effects such as frustration and feelings of isolation.

While the industries with the most hearing loss amongst workers are mining, construction, and manufacturing, a study by NIOSH found:

  • Workers in agriculture, forestry, fishing and hunting faced “significantly higher risks” for hearing difficulty, tinnitus and the occurrence of both conditions.
  • Workers in life, physical and social science occupations faced a significantly higher risk for hearing difficulty.
  • Workers in architecture and engineering roles faced a significantly higher risk for tinnitus.

OSHA offers the following signs that a workplace might be too noisy:

  • Workers hear ringing or humming in their ears at the end of the workday.
  • A worker must shout to be heard by another worker an arm’s length away.
  • Workers notice temporary hearing loss at any point when leaving work.

Baseline and annual audiograms may help participants in a hearing conservation program determine if workers are avoiding hearing loss. If a worker shows a change in hearing test results – described by experts as a “standard threshold shift” – the employer is required to fit or refit the worker for hearing protection, train the worker on proper use, and ensure the worker wears the protection.

Mark Cullen, a professor at Stanford University who explores workplace hazards, found in a study that the employees who suffer most from hearing loss were those who were working in jobs involving moderate noise levels instead of high-noise environments. “At very high noise exposures, people very faithfully wear hearing protection and at low noise situations, people don’t,” he said. He notes employers could build noise barriers or eliminate noisy equipment, but old factories often choose to just offer hearing protection gear.

While PPE can be effective, the major problems are:

  • Easy to remove
  • Discomfort
  • Poor fit
  • Trouble inserting ear plugs
  • Not individualizing protection can lead to overprotection, which can add to the safety issues of being unable to hear warning signals, etc.
  • Using PPE that is not independently tested to verify noise reduction ratings
  • Not researching new technologies

He said there is also existing technology that will measure noise exposure in real time in each worker’s hearing protection gear, with lights that will flash when the level becomes hazardous. The data can be downloaded each day to monitor daily exposures.

Some tips for employers:

  • Do area noise monitoring regularly and look at potential engineering and administrative controls for noise issues before distributing hearing protection. It can be more efficient and effective.
  • Become familiar with NIOSH’s Buy Quiet Initiative
  • Stay current with appropriate technologies
  • Monitor maintenance – older machinery can shake, rattle, and bump if not properly maintained
  • Properly train workers and provide sound level meters
  • Promote to younger workers how important it is to protect their hearing
  • Make employees part of the solution

 

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Looking ahead to 2017 in Workers’ Compensation

It’s been a very healthy workers’ comp market for employers in many states. Those with favorable loss and exposure profiles are renewing with flat or reduced rates. A notable exception is Florida, which may be facing double-digit increases.

While this is good news for employers, changes in the legislative and regulatory landscape, a transforming workforce, a shortage of workers in key industries, technological advances, medical inflation, and the growing demand for data are challenges for employers. Here are four legislative and regulatory matters that employers should follow in 2017:

  1. Shifting legislative and regulatory policies under the Trump administration  Although states determine workers’ comp laws, a Trump presidency is expected to have a significant effect on the federal regulations that impact workers’ safety as well as employers’ regulatory compliance. One common theme through most of Mr. Trump’s campaign was reducing the federal influence in the workplace; many pundits are anticipating seismic shifts in OSHA and DOL regulations. Some regulations to watch include the new electronic recordkeeping and anti-retaliation law, the hospitalization and amputation reporting law, and the Silica rule. Many are also anticipating changes to the automatic cost of living adjustments for fines. A scale back in fine increases may also be on the table, but the penalty change was a statute and it’s not easily rolled back. Expect a shift in the ‘burden of proof’ back to the whistleblower in such cases, which, under the Obama administration, has focused on the secretary of labor finding there is “reasonable cause to believe that retaliation has occurred.”Several other areas of OSHA enforcement are considered to be in Trump’s crosshairs, including the Joint Employer Doctrine, repeat violations, the Severe Violators Enforcement Program (SVEP), and non-company personnel participation (such as union representatives) in inspections. The Fair Pay and Safe Workplaces Executive Order requiring prospective federal contractors to disclose labor law violations and give agencies guidance on how to consider labor violations when awarding federal contracts is expected to be repealed.

    Overall, a Trump administration is expected to shift the Obama focus on enforcement to one of compliance assistance, similar to that of President George W. Bush.

    Another key area to expect changes is immigration reform, which Trump made the centerpiece of his winning campaign. While it’s difficult to predict exactly what changes will be made, there is likely to be an impact on undocumented workers, as well as temporary work visa programs (such as H-1Bs), which allow employers to bring on highly skilled foreign workers. Furthermore, if Trump can persuade industries to bring back jobs that were exported overseas and return jobs to the coal mining industry, there will be implications for workers’ comp.

  2. Expanding legalization of marijuana  Election results also saw the expansion of legalization of both medical and recreational marijuana. California, Massachusetts, and Nevada joined Alaska, Colorado, Oregon, Washington, and the District of Columbia in legalizing the drug for recreational purposes, while Arkansas, Florida, Montana and North Dakota joined 24 other states in legalizing medical marijuana. So medical marijuana is now legal in 28 states, and an additional 16 states have laws that allow for limited medical use of the drug

     

    In most cases, these limited-medical-use laws mean that only a specific type of cannabis extract can be used. The National Conference of State Legislatures provides a summary of the laws.

    At the federal level, marijuana remains classified as a Schedule I substance under the Controlled Substances Act, where Schedule I substances are considered to have a high potential for dependency and no accepted medical use, making distribution of marijuana a federal offense. This status prohibits assigning a National Drug Code (NDC), which presents difficulties in processing medical marijuana transactions.

    While there is limited legal precedent surrounding marijuana and workers’ comp, for the most part, the courts have favored employers. However, in two recent and separate decisions, the Appellate Division of Maine’s Workers’ Compensation Board affirmed two ALJs’ decisions requiring employers to reimburse injured workers for the costs associated with the reasonable and proper use of medical marijuana authorized under the Maine Medical Use of Marijuana Act (MMUMA). It’s important to note that in both cases, the injured workers had tried multiple pain management regimes without success. New Mexico requires employers to reimburse employees for medical marijuana, but many other states have passed legislation with provisions that either implicitly or explicitly exempt insurers or employers from responsibility for reimbursement for medical marijuana.

    When workers are injured and suspected to be under the influence of marijuana, the intoxication defense is more difficult than with alcohol. Drug tests can show whether marijuana is present in someone’s system, but there’s no test to show whether that person is impaired as a result. Traces of the drug can stay in a person’s body up to a month, making it more difficult for employers and insurers to pinpoint when the person smoked or ingested the drug.

    Some employers are abandoning pre-hire drug testing because too many applicants fail. Moreover, no tolerance drug policies are being put to test. Courts have upheld the termination of injured workers who test positive for medical marijuana under drug-free workplace policies, even though many employers struggle with policies to accommodate its use. It’s prudent for employers to establish a clear policy and communicate it effectively to employees.

    This is a fluid area and employers should understand the laws in each of the states where they do business, work with insurance and legal counsel to determine responsibilities related to medical marijuana treatment, and update employee handbooks to clarify company policies related to marijuana, as well as stay abreast of all relevant legal decisions.

  3. Focus on opioids and rising prescription costs  The rising costs of legacy claims for opioid-dependent injured workers are a concern to all parties involved in workers’ comp. Addicted workers are less likely to return to work, costs for opioid addiction treatment are rising, and comp insurers and employers pay benefits to injured workers for longer periods of time, up to and including death benefits to surviving family members if a worker dies from an overdose – as is mandated in several states.Opioid control measures have helped reduce utilization among newer claims, but costs overall are up – a sign that older claims tend to be driving the utilization. Opioid addiction also comes with a host of side effects, which add to the costs of treatment.

    Employers should expect more action from the states on controlling this trend. For example, on October 31, the New York State Workers’ Compensation Board announced a new process for hearings addressing opioid issues relating to the treatment of injured employees. Insurers can request a hearing to consider whether an injured worker should continue to be treated or weaned off opioids.

    Employers should work with their insurance company and advisors to identify claims where there could be opioid abuse. Moreover, to help contain rising medical costs, employers should work to identify the best available physicians in their area to provide care for employees who have suffered work-related injuries and illnesses, and avoid physicians who dispense drugs.

  4. State actions  In 2016, state legislative activity related to workers’ compensation was fairly moderate across the country according to the 2016 Workers’ Compensation Issues Report: Fall Edition by the National Council on Compensation Insurance, Inc. (NCCI). While more than 700 bills addressing workers’ compensation were introduced, only about 10% were enacted and “none of the enacted laws made significant systems changes.” A common thread was increased activity around the gig economy, with several states introducing legislation dealing with “qualified market contractors.” As more and more work is being performed by workers outside of the traditional employer-employee relationship, regulations aimed at improving the safety and benefits for such workers becomes a focal point.Here is a snapshot of some states to watch based on current activity. Please note that the regulatory and legislative landscape changes rapidly, so it is a good idea to stay abreast of proposed changes.
    • Florida – The Associated Industries of Florida and the Florida Chamber of Commerce created task forces to seek legislative action in response to recent Florida Supreme Court rulings and significant rate increases. A circuit court judge has recently blocked the hike in rates because of violations of Florida’s Sunshine Law. The Florida Office of Insurance Regulation filed a notice of appeal on November 28 and the rate hike is scheduled to go into effect while on appeal.
    • Illinois – Governor Rauner is continuing to include workers’ compensation reforms with budget negotiations.
    • North Carolina – A state audit of the Industrial Commission has determined that while the agency has improved its oversight of workers’ compensation claims, it still is not meeting identification and investigative targets. Among the key findings in the latest audit are:
      • The commission continues to struggle to identify all noncompliant employers, including those not having a system to detect noncompliance.
      • The commission is not completing its investigative process in a timely fashion, “making recovery of medical costs and lost wages more difficult for injured workers.”
      • Inadequate oversight of investigation and penalty cancellation process “increases opportunity for noncompliance.”
    • Oklahoma – Proponents of the opt-out law have vowed to fight the Supreme Court’s ruling finding the law unconstitutional. In the meantime, the Supreme Court is developing steps to mandate employers to be compliant with its ruling.
    • Rhode Island – The Department of Labor and Training is developing a proposed rule to add massage therapy guidelines and compound drug reimbursement to its medical fee schedule.
    • Texas – The Division of Workers’ Compensation is proposing an increase in claimant’s attorney fees for the first time in 25 years.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Things you should know

DOL overtime rule on hold

In late September 2016, 21 states led by Texas and Nevada, along with the U.S. Chamber of Commerce and other business groups, challenged the new overtime exemption rule and sought a nationwide injunction preventing the rule from taking effect. The states argued that the DOL unconstitutionally overstepped its authority and took issue with the policy behind the rule change, arguing that salary level alone does not reflect the type of work an employee performs, and that the DOL’s regulation disregarded the text of the FLSA by imposing a salary threshold without regard to whether an employee actually performs bona fide executive, administrative or professional duties.

 

Workplace injuries decline in private sector

The number and rate of nonfatal workplace injuries and illnesses in the private sector declined last year, according to a Bureau of Labor Statistics (BLS) report. Private industry employers reported about 2.9 million nonfatal workplace injuries and illnesses in 2015, representing a decline of about 48,000 from 2014, despite an increase in total hours worked. The rate of cases recorded was 3.0 cases per 100 full-time workers, down from 3.2 in 2014. Nearly 2.8 million, or 95.2%, of the cases were injuries, with 75% of these injuries occurring in service-providing industries and the other 25% occurring in goods-producing industries.

Workplace illnesses accounted for the other 4.8% of the cases reported by private industry employers in 2015, with service-providing industries accounting for 64.7% of illnesses and goods-producing industries accounting for 35.4%, according to the report. Wholesale trade was the only sector with an increase in the rate of injuries and illnesses in 2015, rising from 2.9 cases in 2014 to 3.1 cases in 2015.

Important to note: More than half of the nonfatal injury and illness cases involved days away from work, job transfer, or restriction, according to the report.

 

Workers’ comp medical severity dips for the first time in two decades

Workers’ compensation medical severity fell about 1% from 2014 to 2015, marking the first time that medical severity has fallen since 1994, according to a report released by the National Council on Compensation Insurance Inc. (NCCI). A 3% decline in physician service utilization was “a major driver” in lower workers comp medical severity, which some attribute to more insured workers under the ACA. The mix of injuries covered under workers’ comp has remained stable between 2012 and 2015, with musculoskeletal and connective tissue injuries comprising the majority of workers’ comp medical payments each year.

The study concluded that prescription drug costs continue to represent a “significant portion” of medical costs, and “one of the most active subjects” of workers’ compensation-related legislative activity. For every $100 paid for medical services to workers injured in 2014, $17 was for prescription drugs. For claims older than 10 years, the prescription amount rises to 45% to 50%. The study did not include three of the four highest-population states – California, Texas and New York.

 

Health care law not limiting workers’ comp doctor access

According to a report released by the NCCI, a study of the first full year of the impact on workers’ compensation of the health care law found that the law has not limited workers’ comp claimants’ access to doctors. The report, “Impacts of the Affordable Care Act on Workers Compensation,” used medical data from workers’ compensation claims from 2012 to 2014 to compare primary care utilization per claim. The timeline included the first year of expanded medical insurance under the national healthcare reform law.

 

Workers in stressful, low-control jobs have higher risk of early death: study

Workers in high-stress jobs who have little control over workflow and other key decisions are at a higher risk of dying early, according to a study from Indiana University’s Kelley School of Business. Researchers examined a seven-year, longitudinal sample of 2,363 Wisconsin residents in their 60s who worked high-demand jobs. They found that workers in “low-control” jobs had a 15 percent higher risk of death. In contrast, workers in “high-control” positions had a 34 percent lower risk of death.

 

CDC resource to help reduce smoking

To help combat the use of tobacco in the workplace, the CDC foundation is offering resources in the latest edition of Business Pulse. Included are an infographic and a Q&A with Corinne Graffunder, director of CDC’s Office on Smoking and Health.

 

Communication tower association releases video on anchor corrosion

A new safety video from the National Association of Tower Erectors highlights the conditions and factors that contribute to anchor corrosion on guyed towers.

 

Workplace weight management lowers costs, improves quality of life

Employees who participate in a workplace weight management program-even those without significant weight loss-have reduced health care costs and improved quality of life (QOL), reports a study, Effect of workplace weight management on health care expenditures and quality of life, in the November Journal of Occupational and Environmental Medicine, official publication of the American College of Occupational and Environmental Medicine (ACOEM).

 

State news
Florida – Workers’ comp attorney fees jump after high court ruling

A recent Florida Supreme Court decision has caused workers compensation attorney fees to increase 22% in the state, according to the NCCI. The average Florida workers’ comp claimant attorney fee per award was $4,978 between May and September 2016, compared with $4,095 for May through September 2015.

 

Pennsylvania battles opioid addiction crisis with slate of new laws

Legislation, including five separate bills that will go into effect within the coming months, is aimed at the opioid crisis. Among the new laws is the Safe Emergency Prescribing Act – House Bill 1699 – which prohibits hospital emergency rooms and urgent care centers from prescribing opioids for longer than seven days and bans refills for opioid prescriptions.

Senate Bill 1202, which amends Pennsylvania’s Achieving Better Care by Monitoring All Prescriptions Program Act, requires continuing education for medication prescribers and dispensers related to pain management, addiction and dispensing, and requires prescribers use of the prescription drug monitoring database every time they prescribe an opioid or benzodiazepine.

Three other bills will now require more training on pain management in medical schools, restrict the ability to prescribe opioids to minors and permit certain facilities to serve as drop-off locations for unused prescription drugs.

PA.gov provides a summary of the five bills.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

HR Tip: Significant decisions for federal contractors and subcontractors

Federal contractors may be celebrating the recent ruling by a federal court blocking the blacklisting rule, but lamenting the Equal Employment Opportunity Commission’s (EEOC) announcement that starting March 2018, it will collect summary employee pay data from private employers including federal contractors and subcontractors with 100 or more employees.

Blacklisting rule blocked

A day before the Fair Pay and Safe Workplaces rule – the “blacklisting rule” – was to take effect, a federal court blocked most of the rule on Oct. 24, determining that the regulation likely violated a host of federal labor laws as well as the First Amendment and due process rights. However, the court left in place the rule’s pay transparency provisions.

The injunction means employers may enter into federal contracts, even over $50 million, without having to report all violations of 14 different labor laws, plus similar state laws, to the federal government, including violations that have not been fully litigated in court. But employers still must comply with the pay transparency provisions.

It is important to note that this is a preliminary injunction and can change so contractors should hold onto the data they’ve collected and wait until there is a decision on the permanent injunction before celebrating.

EEOC will collect summary pay data

Starting March 2018, the EEOC will collect summary employee pay data from private employers including federal contractors and subcontractors with 100 or more employees, which it will use to improve investigations of possible pay discrimination. The summary pay data will be added to the annual Employer Information Report or EEO-1 report that is coordinated by the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

Specialist in workplace law, Jackson Lewis, notes, “Armed with the data, and intent upon identifying pay disparities causing the “wage gap” for women and minorities, the EEOC and the Office of Federal Contract Compliance Programs will monitor and test employer data and investigate in detail the pay practices of those employers whose data suggests indefensible pay disparities allowing the agencies to effectively target employers for systemic pay discrimination investigations.” The firm encourages affected employers to conduct proactive EEO pay analyses to assess risk, but cautions to protect analyses under the attorney-client privilege.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Holiday parties: proceed with caution

As the season for holiday office parties approaches, it’s important for employers planning parties to take steps to minimize liabilities, including workers’ compensation, discrimination, harassment, and third party injuries. While we’ve given some of these tips before, it’s a timely reminder to help ensure that cheer does not turn into a legal nightmare:

  1. Be sure workers understand that attendance is voluntary. This should be clearly stated in the invitation, whether it is an email or a flyer posted in the workplace. It’s very important to disassociate the holiday function from the employee’s job.
  2. Hold after work hours and off site, reducing the likelihood the party will be perceived as work related.
  3. Don’t encourage attendance by either implying attendance will help the employee advance or that failure to attend sends the message the worker isn’t a team player.
  4. Avoid presentation of awards, bonuses or other recognition that suggest employees are there for business reasons.
  5. Recognize that employees designated to plan and run the event may be considered in the scope of employment.
  6. Be cautious about inviting vendors, clients or others with whom you have a business relationship.
  7. Invite spouses and significant others. Although it is more costly, it helps to control behavior and establish the social nature of the event.
  8. Remind employees that normal workplace standards of conduct are to be respected. Parties, particularly when alcohol is served, can be lead to sexual harassment or discrimination claims. Treat any discrimination or harassment claims seriously and conduct appropriate investigations.
  9. Limit or do not serve alcohol. Do not have an open bar. Close the bar at least one hour before the end of the party. Be sure that alcohol is served by a professional bartender or at a licensed establishment that knows when to stop serving an individual. Serve plenty of food. Arrange for no-cost transportation for any employee who should not drive home.
  10. Confirm that the venue is properly licensed.
  11. Don’t allow employees to post company party images/comments on social media outlets without having a policy in place.
  12. Be careful of language and decorations – don’t call it a Christmas party or invite “husbands and wives.”
  13. Discuss your exposure with your insurance agent.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Six common mistakes employers make in preventing bullying and workplace violence

Because of recent tragic events, workplace violence is sometimes thought of synonymously with active shooters. Yet, these are rare and workplace violence is much broader and more pervasive. The FBI defines workplace violence as “actions or words that endanger or harm another employee or result in other employees having a reasonable belief that they are in danger.” It encompasses bullying, harassment, stalking, robbery, and physical assault, as well as shootings, and happens daily. It can involve coworkers, supervisors, customers, clients or patients, and relatives of employees.

In fact, at 16 percent, workplace violence is the third-leading cause of on-the-job deaths according to 2015 report from the Bureau of Labor Statistics (BLS). Violent injuries comprise 6.3 percent of all employer-recordable injuries. According to the BLS, the industries with the highest propensity for workplace violence include retail, financial, food and hospitality, protective services operations (law enforcement and firefighters), and health care.

While certain industries have a high propensity for violence, it cuts across all sectors and incudes companies of all sizes. More than one-quarter of U.S. workers say they have been bullied at work, and another 21 percent say they have witnessed such abusive conduct, including threats, intimidation, humiliation, work sabotage or verbal abuse, according to the 2014 U.S. Workplace Bullying Survey conducted by ZogbyAnalytics for the Workplace Bullying Institute. Whether a specific workplace is particularly vulnerable to bullying depends on a variety of factors, including the culture, the personalities drawn to that line of work, and the organization’s structure.

All workplaces can do more to combat workplace violence. Here are six common mistakes employers make:

  1. Failure to recognize workplace factors that can trigger violence While uncertainty of employment, mergers, downsizing, and heavier workloads are common workplace conditions that can increase the risk of workplace violence so are everyday changes such as new technologies, reorganization, new employees, and new processes. Indeed, stress is a key trigger. When people are under pressure, they are more easily agitated, less cooperative, overly sensitive, and unforgiving of mistakes.Poor hiring practices also are a harbinger for workplace violence. Failure to properly vet applicants on personal traits, behaviors, and cultural fit can lead to hiring potentially violent individuals.

    A company’s culture also plays a large role. Supervisors who motivate by fear or intimidation, are intolerant of individual differences, or refuse to believe that bullying is happening foster an environment ripe for violence. Employers need to take a hard look at their culture and how change, schedules, and promotions are managed.

  2. Inadequate policies Many companies have programs in place they think are effective, but some are too complex, others lacking in details, and still others outdated. While no policy can cover all possible scenarios, it needs to be clear and specific and reviewed and revised regularly. For example, it is not sufficient to say bullying will not be tolerated. According to the Society for Human Resource Management, a policy prohibiting bullying should list specific examples of unacceptable behavior, such as:
    • Constant and unfair criticism
    • Excessive teasing
    • Yelling, shouting and screaming
    • Insults and behind-the-back put-downs
    • Hostile glares and other intimidating gestures
    • Malicious gossip
    • Monopolizing supplies and other resources
    • Aggressive e-mails or notes
    • Overt threats, aggression or violence

    In the case of outside threats, such as domestic violence, the policy should encourage workers to come forward and take protective measures.

    According to OSHA, a written program should include management commitment and employee participation, a worksite analysis, hazard prevention and control, safety and health training, and recordkeeping and program evaluation. Make sure all employees understand the policy, there is open communication, and your organization is committed to preventing workplace violence.

  3. Assume employees will report offenders It’s often difficult for employees to report bullying or harassment. They may worry about their jobs, fear further retaliation, consider it a personal matter, feel they lack the knowledge to identify a real problem, believe it’s not their responsibility, or don’t believe it will escalate. Worse, they may believe the company will do nothing about it. Create a clear reporting structure and encourage open communication. Aggressors thrive on the silence of victims and witnesses and a workforce that knows what to look for, is quick to report, and has someone to report to is the strongest weapon against workplace violence.
  4. Allow conflicts to escalate Because the definition of workplace violence is so broad, companies struggle with how to respond and do not handle threats properly or in a timely manner. There’s no doubt it can be a challenging balance of security versus privacy, but it’s important to be proactive and have a process in place that minimizes exposure and protects employees.Violence often stems from unresolved conflicts that fester.In some cases, bullies aren’t even aware they are bullies or they do not know how to effectively manage subordinates. With proper training, they can learn new ways to communicate. When coaching and confronting the offender fails, it’s up to the company to have a process that counsels and supports victims and disciplines and monitors the offender.
  5. Failure to document at an organizational level Even employers that do a good job of documenting individual incidents and have strong preventive programs often do not look at the data in the aggregate. Such a view can help identify departments, responsibilities, shifts and so on that are more vulnerable or exposed to violence. Furthermore, after determining how and why the workplace violence occurred despite the prevention measures, policies should be reviewed and strengthened.
  6. Inadequate support for victims It’s not easy for victims to take control and go back to work after a violent incident. Offering support and counseling as well as properly training supervisors on talking with victims and their coworkers can help with the transition. There are times when the employer might have to deliver bad news, such as a recent case in Florida. A restaurant worker was intentionally set on fire by her boyfriend and was critically burned. She had no insurance and since the boyfriend was not affiliated with the restaurant, workers’ comp will not cover the medical bills. A report on WJXT News4Jax indicates that the owners are supportive and helped with ways to raise money. Employers need to show compassion and understanding for workers in devastating situations.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com