Legal Corner

ADA

Case to watch: Do employers have to offer disabled employees reassignment to another job if there are more qualified candidates?

In December, the 11th U.S. Circuit Court of Appeals (covering Florida, Georgia, and Alabama) ruled in EEOC v. St. Joseph’s Hospital Inc. that the ADA “does not automatically mandate reassignment without competition.” The ruling conflicts with other appellate court decisions, and legal experts speculate that it is an issue likely to be heard by the U.S. Supreme Court.

St. Elizabeth’s Hospital had a best-qualified applicant policy in place and the court found the ADA only requires that an employer allow the disabled employee to compete equally for a vacant position. The EEOC argued that the hospital violated the ADA by requiring the nurse to compete for a vacant position she was qualified to perform. The court stated, “[p]assing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficient or good performance.” Further “‘the ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.”

The conflicting appellate court rulings on the issue means employers’ obligations will vary depending on the circuit in which they operate.

Broken arm can be considered disability

A U.S. District Court refused to dismiss a discrimination charge filed by a worker who was terminated after she continued to need accommodations for her broken arm, a work-related injury. She worked for Kingsport, Tennessee-based Eastman Chemical and tripped and fell and broke her arm, requiring two surgeries. The company put her on light-duty assignment but eventually terminated her arguing it could not accommodate her temporary activity restrictions on an ongoing basis because there were several essential job duties she could not perform. The worker filed suit under the ADA.

The court refused to dismiss her case noting, “pertinent inquiry is not whether plaintiff’s restrictions were labeled ‘temporary’ or ‘permanent’ or the precise length of time she was under restrictions, but whether she was essentially limited in a major life activity.”

 

FMLA

Failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation

In Alanis v. Metra, an employee began suffering from a variety of fragrance-sensitivity symptoms such as difficulty breathing and speaking after ten years on the job. She was seen by her employer’s medical provider who concluded that she could return to work but gave her 30 days to obtain a psychological clearance exam. A week later, she again experienced symptoms and claimed that she was unable to speak and could only communicate through text messages, in writing or by whispering and was determined to be “medically disqualified” from working.

She took FMLA leave and a few months later her treating physician released her to work. However, she had not had the psychological clearance exam and when she did she was diagnosed as having a fragrance sensitivity, but was allowed to return to work a few months later.

The company made every effort to accommodate her requests for accommodation, which included flexible work hours, a modified dress code, limitation on extended talking, periodic rest breaks, self-paced work-load, and efforts to create a fragrance-free workplace. But she was not satisfied and filed suit, alleging discrimination based on the fact that she was Hispanic and retaliated against because of her disability.

The District Court for the Northern District of Illinois found that there was no evidence of discrimination or retaliation because no adverse employment action was taken. Furthermore, the Court found that the company had gone above and beyond to grant her requests for accommodation, specifically noting the changes made to reduce the existence of odors in the workplace.

Workers’ Compensation

Court supports DWC action suspending providers linked to fraudulent activities from workers’ comp system – California

Chiropractor Michael Barri, his company, Tri-Star Medical Group, and a newly formed nonprofit called the Coalition for Sensible Workers’ Compensation Reforms, filed a constitutional challenge seeking a peremptory or alternative writ of mandate blocking the state from suspending providers from the workers’ comp system and staying their medical liens when the providers are linked to fraudulent activities. Barri pled guilty to receiving illegal kickbacks to refer patients to Pacific Hospital during the spinal surgery kickback scheme.

The First District Court of Appeal took only two days in rejecting the request. The Division of Workers’ Compensation is moving to suspend providers and stay liens under new authority granted to it by the passage last year of SB 1160 and AB 1244.

EMA’s opinion that goes beyond the scope of the issues should be considered – Florida

In Hillsborough County School Board v. Kubik, the 1st District Court of Appeal ruled that a Judge of Compensation Claims erred in refusing to consider the opinion of an expert medical advisor (EMA) as to the cause of a worker’s need for medical treatment, and in denying the worker temporary total disability benefits. While the EMA had not been asked to evaluate the major contribution cause of the need for ongoing treatment, the court noted an EMA’s opinion that goes beyond the scope of the issues is admissible but not afforded a presumption of correctness.

Former Congressman collecting $100,000 annually in workers’ comp for bipolar disorder – Illinois

According to the Chicago Tribune, former U.S. Rep. Jesse Jackson Jr., who was convicted of looting thousands of dollars from his campaign fund, is receiving a little more than $100,000 in worker’s compensation payments. Quoting Chicago attorney Barry Schatz, who is representing Jackson in a divorce proceeding, the article notes that the benefits are temporary total disability for bipolar disorder and depression.

The Federal Employees’ Compensation Act gives workers’ compensation benefits for disability “due to personal injury or disease sustained while in the performance of duty,” the Labor Department said. An employment lawyer speculated that Congressman Jackson’s attorneys convinced the government that his bipolar disorder was created by the rigors of being a member of Congress,

Inadequate urine sample did not constitute drug test refusal – Kansas

An employee who was struck in the left arm by an object while grinding a piece of metal was treated at an emergency room and returned to his employer to submit a post-injury urine sample. However, he did not provide enough urine to complete the test and the test administrator threw it away.

Lower courts found that the employee forfeited his benefits by failing to complete the drug test, however the appeals court disagreed. Kansas workers’ comp law says that “refusal to submit to a chemical test at the request of the employer shall result in the forfeiture of” workers’ comp benefits if the employer “had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes post-injury testing.” The court found no evidence that the employee had been under the influence of alcohol or drugs at the time of the accident and had volunteered to take a drug test while he was at the hospital. Kelley v. Aldine Indep. Sch. Dist., 2017 Tex. App. LEXIS 829 (Jan. 31, 2017)

Psychologist’s testimony valid in workers’ comp denial – Minnesota

In Gianotti v. I.S.D. 152, A16-0629, the Minnesota Supreme Court overturned a decision of the Workers’ Compensation Court of Appeals (WCCA) that the opinion of a psychologist was inadequate to support the denial of a worker’s claim for mental conditions allegedly caused by a concussion and post-concussive syndrome. The employee worked as a school bus monitor and fell and hit her head when the bus stopped short unexpectedly. Medical tests did not reveal a concussion, but she continued to complain of headaches, confusion, and memory problems and eventually sought psychiatric treatment.

While a judge denied the claim for a variety of emotional and psychological conditions, the WCCA questioned the competence of the psychologist as an expert witness, an issue that was not raised on appeal, and awarded benefits. The Supreme Court overturned this ruling noting the scope of the jurisdiction of the WCCA is limited to the issues raised by parties in their notices of appeal and that the psychologist’s opinion had as solid a factual foundation as any other expert in this case.

 

Failure to find work does not mean unemployable – Mississippi

The employee was a grinder and injured his right hand. Following an operation, he was released to work with restrictions, which did not allow him to work as a grinder. He performed largely janitorial and maintenance duties, but at one point was asked to operate a forklift. This irritated the hand and his physician advised him not to do so. When he was asked again, he refused to do so, and was placed on leave and given three days to obtain a written work restriction.

When he did not produce the work restriction, he was fired for insubordination. He filed a petition seeking a higher permanent medical impairment and eventually received a 50% loss rating, which he argued was too low given his permanent work restrictions. However, the Court of Appeals found that he was able to do other substantial job duties and had worked for almost a year after he was declared to have reached maximum medical improvement. Although he had been unsuccessful in finding another job after he was let go, this did not mean that he was unemployable. Harold Hathorn v. ESCO Corporation

Worker fired for failing to report medical only claim can collect unemployment – Mississippi

Although most states protect workers once they are hired from being fired if they file a comp claim, Mississippi does not. In Bedford Care Center of Marion v. Nicholson, the question for the Court of Appeals was whether unemployment benefits are available to a worker who was fired for having misrepresented her claims history. In a previous job, the worker received medical care for her injury in the hospital emergency room, but no indemnity benefits and she argued she did not realize medical benefits were workers’ comp.

While lower courts found she was fired for misconduct and not entitled to unemployment benefits, the Court of Appeals concluded that her inaccurate answers did not rise to the level of “willful and wanton” misconduct necessary to forfeit her entitlement to unemployment benefits.

Employee may sue colleague for work accident – Missouri

A restaurant worker climbed an A-frame ladder into a lofted space at the restaurant and while she was working there, a coworker removed the ladder. The coworker returned the ladder, but did not fully open and lock it. The ladder collapsed and the worker fell and injured her hand, elbow, and shoulder.

While the St. Louis County Circuit Court dismissed a negligence lawsuit, a three-judge panel of the appellate court disagreed, noting that a 2005 amendment to Missouri’s workers comp law “only gives employers immunity against tort claims for work-related injuries and does not afford such immunity to co-employees.”

Suicide bars survivor benefits – Nebraska

A woman who overdosed on drugs prescribed in connection with a workplace injury is not eligible for workers’ compensation survivor benefits, a state appeals court ruled. For five years, she was taking the opioids oxycodone and methadone, along with the sedative Xanax. Shortly before her death, she was told she would lose custody of her daughter and she no longer could live with relatives. She was overheard saying, “I just as well end it all.”

The trial court ruled that the overdose constituted “willful negligence and thus barred any recovery of benefits,” and the Court of Appeals affirmed. Michael B. v. Northfield Retirement Communities

Medical marijuana reimbursement required for comp claim – New Jersey

In Watson v. 84 Lumber, a New Jersey administrative law judge ordered Beaumont, California-based 84 Lumber Co. to reimburse one of its injured workers for medical marijuana prescribed for neuropathic pain in his left hand after an injury suffered while using a power saw at a lumber plant. The medical marijuana was being used to help wean the worker off of opioids. This is a division level case, so this decision is not binding on other New Jersey courts.

Other states that have allowed comp payments for medical marijuana include New Mexico, Maine, Connecticut and Minnesota. In most of these cases, physicians only recommended marijuana after other treatment regimens for chronic pain were attempted without success.

Cautious language of medical expert dooms claim for stress-related stroke – New York

In Matter of Qualls v Bronx Dist. Attorney’s Office, 2017 N.Y. App. Div. LEXIS 409, a state appellate court affirmed the Workers’ Compensation Board’s determination that a worker did not sustain a causally related disability resulting from his stroke because his physician repeatedly used cautious and indeterminate language, such as stress “may have been” or “could’ve been a contributory factor.” While the court acknowledged that the law did not require that medical opinions be expressed with absolute or reasonable medical certainty, the expert must signify a probability as to the cause and his or her opinion must be supported by a rational basis.

“Last act” in employment contract key in determining workers’ comp jurisdiction – North Carolina

An Oklahoma-based union hall of a welder who lived in North Carolina sent her a notification to report to an assignment in Texas, where she was to undergo a drug test and complete forms when she arrived. The North Carolina Industrial Commission ruled it did not have jurisdiction to hear her injury claim since her injury occurred outside North Carolina and under North Carolina’s “last act” test, her employment contract was made in Texas, and not in North Carolina. Submission to the drug test was more than an administrative formality, had she not passed, she would not have been hired. Holmes v. Associated Pipe Line Contrs., 2017 N.C. App. LEXIS 52

Off-duty convenience store clerk due comp benefits – Pennsylvania

The Commonwealth Court panel has ruled that a convenience store clerk who is permanently disabled is eligible for workers’ compensation after being shot several times while sitting in his supervisor’s parked car outside of the store after the pair had just closed up shop. Earlier in the week, he had called the police on a shoplifter, whose relatives threatened retaliation, so his supervisor had been driving him home.

The Commonwealth Court panel upheld the decision of the workers’ compensation judge, saying that the shooting was retaliation-related. The court also said that the spot he was parked in constituted the employer’s property, at a location that was a reasonable means of access and egress to employer’s store, and he was within the course and scope of employment while he was in the car.

Exception to going and coming rule applies for sick employee – Pennsylvania

In Lutheran Senior Services Management Company v. Workers’ Compensation Appeal Board (Miller), the Director of Maintenance for a nursing home had a serious motor vehicle accident while going into work. At times he was called in for emergencies and received “comp time.” On this particular day, he was sick and planned to call in, but his employer called that a security camera had malfunctioned and needed to be fixed and no one else was available to do so.

While the carrier denied the claim arguing that he was commuting, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, noting “Claimant was sick on March 13, 2014, and except for the special need of the Employer to assure [that the] surveillance cameras became operative . . . Claimant would not have gone to work.” This would represent an exception to the “coming and going rule.” Upon appeal the Workers’ Compensation Appeal Board (WCAB), affirmed the decision of the WCJ but felt the facts represented more “special circumstances” than a “special mission,” but, still met an exception to the “coming and going rule.” The Commonwealth Court affirmed.

Third party recovery limited to injuries caused by negligence – Pennsylvania

In Serrao v. WCAB (Ametek Inc.), the Commonwealth Court ruled that an employer is not entitled to recovery of the full amount of its comp lien from a worker’s settlement unless the employer can prove the third party was responsible for all of the worker’s compensable injuries. An employee, wearing protective overalls, suffered burns when a can of powder ignited and caused a flash fire. The employee filed a third party suit against the manufacturer of the coveralls and received a $2.7 million settlement, and the employer asserted a lien against the recovery for all of its costs related to the injury.

There was a dispute if the costs related to burns to his hands and head caused by the melting of his gloves, face shield and hood should be included. The case made its way to the Commonwealth Court that concluded an employer has the burden of proving its obligation to pay comp benefits was caused by the negligence of the third-party tortfeasor and that the tortfeasor’s payment of damages are for the same injuries for which the employer paid benefits.

How a carrier can exercise its subrogation rights – Pennsylvania

In The Hartford Insurance Group on behalf of Chunli Chen vs. Kafumba Kamara, Thrifty Car Rental, and Rental Car Finance Group, the court considered how a carrier could go after a culpable third party. A carrier wanting to exercise its subrogation rights cannot force the issue by bringing a third party action on its own. Chen was waiting to rent a car in the Thrifty Car rental parking lot when Kamara accidentally hit her with one of Thrifty’s rental vehicles. Through her employer’s workers’ comp, Hartford paid almost $60,000 in medical and wage benefits. The Hartford filed a tort action against Kamara and Thrifty, asserting their negligence was responsible for Chen’s injuries, but Chen had not assigned her cause of action to Hartford and was not a party to the lawsuit.

Although a judge dismissed Hartford’s complaint, the Superior Court ruled that the case could proceed. The court noted that the Hartford was not pursuing a subrogation claim on its own behalf – it was seeking to establish the defendants’ liability to Chen. Because the carrier also was not limiting its requested recovery to the value of its subrogation claim, the court reasoned that it was not impermissibly “splitting” the cause of action Chen would have had. It’s important for carriers to use the right language in the complaint to make it clear that it is bringing the employee’s suit.

In this case, Chen is cooperating with Hartford’s effort to obtain recovery, but did not want to pursue the claim on her own. Such action could be more difficult in cases where a recalcitrant employee does not want to cooperate.

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

OSHA watch

Silica safety standard for construction industry delayed

The crystalline silica standard that applies to the construction industry, which was scheduled to go into effect June 23, 2017, has been delayed until September 23, 2017.

Effective date of new beryllium rule delayed again

Employers will have some additional time to comply with the new beryllium rule as the effective date has been extended 60 days to May 20, 2017. The extended effective date will not affect compliance dates.

Website for electronic submission of injury and illness records delayed – employers advised to sign up for email notification

The online reporting system for the electronic submission rule of injury and illness data, which became effective January 2017, has not yet been completed. While the site was planned for February 2017, there is no date or estimate for the reporting site to become live.

Employers are advised to sign up to receive recordkeeping reminders as well as updates on electronically submitting injury and illness logs, and if, when, and how to do it. This year’s deadline is July 1, 2017.

Severe injury reporting stats

The severe reporting rule, which went into effect in 2015, mandated that all workplace fatalities be reported within eight hours and added a new requirement that employers report the hospitalization of one employee, rather than three or more as previously required, as well as all amputations and loss of an eye within 24 hours. In 2016, employers reported 10,887 severe injuries, up from 10,395 in 2015, with the increase driven mostly by a rise in hospitalization reports.

The agency responded to 73% of the hospitalization reports and 51% of the amputation reports filed last year by asking employers to conduct their own incident investigations – known as rapid response investigations – and propose remedies to prevent future injuries.

Overturn of Volks Rule expected

A disapproval resolution of the controversial “Volks” rule, already approved by the House of Representatives, was adopted by the U.S. Senate and is expected to be signed by President Trump. The so-called “Volks” rule increased the threshold for citing employer violations from six months to up to five years.

Campaign to address fatalities in Kansas, Missouri and Nebraska launched

The recently launched Safe and Sound Campaign is designed to make companies more aware of the services available as well as address some common hazards that have led to fatalities, including confined space and struck by incidents. Twelve fatality inspections were conducted in Kansas, Missouri and Nebraska from Oct. 1, 2016 through February 1, 2017, up from seven for the same period last year and there was a significant increase in fatalities associated with confined space entry and trenching and excavating.

New Regional Emphasis Program focuses on crane safety

The OSHA Region VI office in Dallas, Texas, established a Regional Emphasis Program (REP) covering employees in the construction industry who perform crane operations. The program conducts safety inspections of workplaces in Texas, Arkansas, Louisiana, Oklahoma and sites in New Mexico that are under federal OSHA jurisdiction.

$afety Pays Program updated with recent NCCI information

The $afety Pays Program, which helps employers understand the impact of workplace injuries and illnesses on their company’s profitability, has been updated with the most recent NCCI data. This program uses a company’s profit margin, the average costs of an injury or illness, and an indirect cost multiplier to project the amount of sales a company would need to cover those costs.

California Workplace Violence Standard goes into effect April 1

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.

 

Enforcement notes

California

Aftermath of the CA Soberanes Fire brings Cal/OSHA citations and penalties to two private contractors

Czirban Concrete Construction of Madera County was cited for five workplace violations and fined $20,000 for an incident that resulted in the death of a bulldozer operator. The largest fine was for failure to make sure the operator was wearing a seat belt. Industrial Defense Development of Tuolumne County was fined $6,000 for an incident where an employee suffered serious injuries when the water tender he was operating rolled over and down a hill. Its largest fine was for not reporting the injury.

Georgia

Hitachi Automotive Systems Americas of Monroe cited for numerous violations

Inspected in response to a complaint, Hitachi faces numerous violations, including deficiencies in the company’s hearing protection and hazard communication programs, as well as an emergency eye wash station that wasn’t installed. Citations were also issued to the staffing agency, which supplied the temporary workers.

Kansas

Contract worker dies at Goodyear’s Topeka plant just weeks after company reached $1.75 million settlement in earlier fatality case

A 61-year-old contract worker was fatally injured at Goodyear Tire & Rubber Co.’s Topeka manufacturing facility. The fatality came just weeks after Goodyear Tire reached a $1.75 million settlement after four fatalities occurred at its Danville, Va. plant over the course of a year.

Michigan

Michigan OSHA cites Dunn Paper Company for machine guarding and other violations

MIOSHA inspectors determined that the company failed to adequately protect workers from amputation hazards posed by cooling fan blades, spinning flywheels and belts and pulleys. Other citations included failing to provide fall prevention barriers around an open-sided elevated platform and open holes, and not properly training workers on the safe use of rented aerial work platforms.

Tennessee

Nissan North America fined after worker death

After the maintenance crew of the car manufacturer repaired the roller drive motor for an elevator, which is designed to move car seat pallets from one conveyor system to another, it neglected to place the machine guarding back properly when checking whether the elevator was functioning correctly. An employee’s head was crushed between the counterweight, which weighed 1,275 lbs., and the top of the metal guarding system.

The company faces $29,000 in fines for failure to perform routine equipment inspections and a Repeat-Serious violation because lockout/tagout devices were not replaced once maintenance was completed.

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

OSHA watch

No extension for groups opposed silica rule

A federal appeals court has denied a request by industry groups challenging the silica rule for a 60-day extension to give the Trump administration time to evaluate the rule. A coalition of trade associations urged the U.S. Court of Appeals for the District of Columbia Circuit to vacate the rule, but the D. C. appeals court denied the extension request without explanation.

Safety citations stand although employee violated safety rules

The Seventh Circuit Court of Appeals in Chicago denied an appeal by Dana Container Inc. of a finding by the Occupational Safety and Health Review Commission upholding citations issued against the cleaning and transportation company when a worker was exposed to toxic fumes. According to the ruling, the employee disregarded safety rules by entering a cleaning tank without attaching himself to a retrieval device or following the entry permit procedures – in violation of OSHA rules – and had to be rescued by the local fire department after being found unconscious.

The appeals court agreed with the commission that there was a failure to enforce Dana’s safety program, citing evidence of permit deficiencies and a lack of disciplinary or follow up action.

Allowing union reps on inspections at nonunionized workplaces challenged

In 2013, a standard interpretation letter allowed employees at nonunion workplaces to designate nonemployees such as union representatives to participate in so-called “walkaround” inspections. The Washington-based National Federation of Independent Business (NFIB) employer group challenged the interpretation in September 2016 in U.S. District Court in Dallas.

There were two parts to their argument:

  1. The agency lacked the authority to allow union representatives to accompany its compliance officers at nonunion workforces.
  2. It constituted a rule change made in violation of the Administrative Procedure Act (APA), which mandates a public notice and comment period.

In a split decision, the judge denied part of the motion to dismiss by allowing the APA claim to move forward. According to an article in Business Insurance, OSHA’s union rep inspection policy under fire, legal experts say it is highly likely that the administration will rescind the interpretation letter and/or stop defending the lawsuit.

House passes resolution to overturn ‘ongoing obligation’ recordkeeping rule

The U.S. House of Representatives passed a resolution to overturn a ruling clarifying employers’ “ongoing obligation” to make and maintain accurate records of work-related injury and illness data. The so-called “Volks” rule increased the threshold for citing employer violations from six months to up to five year. The rule, which became effective Jan. 18, was OSHA’s attempt to affirm a long-held agency stance that has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993, but was rejected by the U.S. Court of Appeals for the District of Columbia Circuit in 2012 in AKM L.L.C. v. Secretary of Labor (Volks).

Requirements for Outreach Trainer Program instructors revised

The outreach program trains workers and supervisors to recognize and prevent safety and health hazards on the job, and to understand worker rights and employer responsibilities. Requirements for authorized trainers in the program have been revised. Changes include updating and clarifying student contact hours, replacement card procedures, the Trainer Code of Conduct and more. These new requirements and procedures are effective April 1.

For more information, see the Outreach Training Program webpage.

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

HR Tip: ADA: Beware of risks of litigation from deceased former employee’s estate

A recent decision by the 8th U.S. Circuit Court of Appeal puts employers on notice that ADA claims may survive an employee’s death. In Guenther v. Griffin Construction Co., an employee who requested a three-week leave of absence to undergo radiation for treatment of cancer was terminated and advised he could apply for open positions in the future.

He filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC) and died while the charge was pending. The estate filed a disability discrimination lawsuit under the ADA and Arkansas state law. Since the ADA does not address the situation, the lower courts relied on Arkansas state law that the claims would not survive the death. However, the Court of Appeals disagreed siding with the establishment of a uniform federal law that allows for ADA claims to proceed after the death of the plaintiff.

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

 

Lessons from a small company recognized as one of America’s safest companies

EHS Today, a magazine dedicated to the management of risk in the workplace and environment, has recognized America’s Safest Companies since 2002. Most of the companies are large or mid-sized, but this year’s list included Hunter Site Services of Texas that has 40 employees. Providing construction project management for the design and installation of pre-fabricated blast-resistant buildings, Hunter has a 5+ years injury-free record.

Recognizing that new employees are often the ones who experience injuries, the company instituted the Short Service Employee (SSE) Program, which applies to employees who have less than 90 days with the company and/or within his or her craft. The new employees receive an initial orientation of safety requirements prior to performing work under direct supervision of a designated employee who serves as a mentor and trainer. The new employees also wear a visual designation, so that they easily can be identified on a job site.

According to EHS Today, the company also offers:

  • A behavior-based observation program, in which employees are selected at random to be the safety observer for a week, noting both good and bad safety habits.
  • An Employee Times newsletter that is distributed monthly to all employees. It includes company news, a safety corner, reasons to work safely and a section for employee input and suggestions.
  • Job Safety Analysis that includes input from all employees about hazard recognition, evaluation and control; correct tools for the job, proper PPE, housekeeping, hazard communication, specialized operations and crew suggestions.
  • A Stop Work program that allows employees to stop work, report issues to supervisors and wait until the issue is resolved to start work.
  • To overcome complacency, Hazard Hunts, in which employees visit other work areas and “hunt for any hazard” that may cause injuries.

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

Key provisions of OSHA’s new rule on walking/working surfaces, fall protection

Although an overwhelming majority of general industry accidents stem from slips, trips and falls, Subpart D of General Industry Standards, “Walking-Working Surfaces,” adopted in April 1971, was inadequate, inconsistent, and unclear, but efforts to update were continually thwarted. Finally a new rule, 513 pages long, went into effect January 17, 2017 and updated requirements for ladders, stairs, dockboards, and fall and falling object protection for general industry. It applies to all general industry workplaces and covers all walking-working surfaces, which include horizontal and vertical surfaces such as floors, stairs, roofs, ladders, ramps, scaffolds, elevated walkways, and fall protection systems. It also addresses training requirements and inspections of surfaces and equipment.

Covering a wide variety of general industry firms including building management services, utilities, warehousing, retail, window cleaning, chimney sweeping, and outdoor advertising, it does not change construction or agricultural standards. OSHA stated that it tried to align fall protection requirements for general industry “as much as possible” with its requirements for construction because many employers perform both types of activities. Many of the requirements are simplified, definitions are unified, and similar types of equipment, such as ladders, are grouped into one section.

Key differences between old and new standard

  1. Fall protectionOld standard: Mandated use of guardrails as the primary fall protection method

    New standard: Gives employers the flexibility to determine what method they believe will work best in their particular workplace situation, such as personal fall arrest, safety net, guard rails, travel restraint, ladder safety, and work positioning systems. Under certain circumstances work can be done without fall protection §1910.28(b)(1)(iii). Personal fall arrest systems do not include the use of body belts. However, body belts may be used instead of harnesses when part of a ladder safety system. The rule also adds requirements on the performance, inspection, use, and maintenance of these systems. The height at which fall protection equipment must be required remains at four feet.

  2. Updated scaffold requirements(§1910.27(a))Old standard: Outdated scaffolding standards inconsistent with construction standards

    New standard: Requires employers to comply with OSHA’s construction scaffold standards and added new requirements for rope descent systems, not previously regulated by either OSHA’s general industry or construction standard

  3. Modified ladder requirements and phase-in of ladder safety systems or personal fall arrest systems on fixed ladders (§1910.28(b)(9))Old standard: Detailed design and specification requirements for portable ladders; cages and wells acceptable form of fall protection on fixed ladders higher than 24 feet

    New standard: Employers must ensure that ladders are capable of supporting at least the maximum intended load, which is the total weight and force anticipated to be applied by employees and equipment or other materials. Mobile ladder stands and platforms must be capable of supporting four times the maximum intended load. Also, all ladders must be inspected before initial use during a work shift, and as often as OSHA deems necessary after that, to identify visible defects that could cause worker injuries. Special requirements for portable ladders include slip-resistant rungs and steps, and finding ways to secure and stabilize use on slippery and other potentially dangerous surfaces. In addition, OSHA now requires that employers ensure when employees ascend or descend a portable ladder, they maintain three points of contact at all times: facing the ladder, using at least one hand to firmly grasp the ladder, not carrying any object or load that could cause them to lose balance and fall.

    Major change: Cages and wells no longer acceptable fall protection on fixed ladders higher than 24 feet. Fixed ladders must now be equipped with ladder safety system or personal fall arrest systems. There is a grandfather and phase-in provision, that grandfathers in cages and wells on existing ladders, but requires during the phase-in period (20 years) that employers equip new ladders and replacement ladders/ladder sections with ladder safety or personal fall arrest systems.

  4. “Qualified climber” exception in outdoor advertisingOld standard: Exception allowed qualified climbers in outdoor advertising to climb fixed ladders on billboards without fall protection.

    New standard: The directive allowing qualified climbers in outdoor advertising to climb fixed ladders on billboards without fall protection will be phased out and workers must follow the fall protection phase-in timeline for fixed ladders.

  5. Rope descent systems (RDS) and certification of anchorages (§1910.27(b))Old standard: Previously regulated under General Duty Clause

    New standard: Codifies OSHA’s memorandum for employers who use RDS to perform elevated work. Prohibits employers from using RDS at heights greater than 300 feet above grade unless they demonstrate it is not feasible or creates a greater hazard to use any other system above that height. In addition, requires building owners to provide and employers to obtain information that permanent anchorages used with RDS have been inspected, tested, certified, and maintained as capable of supporting at least 5,000 pounds per employee attached.

Training requirements

Employers must make sure that workers who use personal fall protection and work in other specified high hazard situations are trained, and retrained as necessary, about fall and equipment hazards, including fall protection systems. For each fall hazard that is identified, employees also must understand how following the procedures that have been established will protect them from injury or death [29 CFR 1910.30(a)]. Instruction must include how to properly use any tools and equipment such as ladders and safety net systems, portable guardrails, mobile ladder stands and mobile platforms. Employees also need to understand any limitations that these devices present and how misuse can cause injury or death. If personal fall protection systems will be used, training must include proper hook-up, anchoring, tie-off techniques, inspection and equipment storage [29 CFR 1910.30(a)(3)].

Employers can determine the type of training: classroom, audio-visual, demonstrations, field training, web-based, computer-based or other forms of training to meet the requirements of the standard. Training must be performed by a qualified person [29 CFR 1910.30(a) (2)] and if web, video or computer-based methods are used, a qualified person must be available to answer questions. While there are no specific annual requirements for retraining, training requirements “impose an ongoing responsibility on employers to maintain worker proficiency. As such, when workers are no longer proficient, the employer must retrain them.”

Inspection requirements

The standard requires that employers inspect walking-working surfaces regularly and as needed and correct, repair, or guard against hazardous conditions.

Important transitional dates

Some provisions have delayed effective dates to assist with the transition:

  • Training workers on fall and equipment hazards – (5/17/2017)
  • Inspection and certification of permanent building anchorages – (11/20/2017)
  • Installation of fall protection (personal fall arrest systems, ladder safety systems, cages, wells) on existing fixed ladders (over 24 feet) (including outdoor advertising structures) that do not have any fall protection – (11/19/2018)
  • Installation of ladder safety or personal fall arrest systems on new fixed ladders (over 24 feet) and replacement ladders/ladder sections – (11/19/2018)
  • Replace cages/wells and installation of ladder safety systems or personal fall arrest systems on all fixed ladders (over 24 feet) – (11/18/2036)

State plans

States with OSHA-approved state plans have six months to adopt standards that are at least as effective as Federal OSHA standards. Many state plans adopt standards identical to OSHA, but some state plans may have different or more stringent requirements.

For more information on the changes, visit OSHA’s webpage on the Walking-Working Surfaces standard.

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

Protect yourself: Every employer needs to understand the Borrowed Servant Doctrine

Temp and contingent workers and “lent” employees are becoming a permanent fixture in an economy where employees crave flexibility, labor competition is fierce, technological skills are in high demand, and benefit costs are significant. This growing and increasingly multifaceted worker class is rapidly changing how companies fill jobs and the makeup of their workforce. Given this trend, companies must be alert to the issues surrounding this class of worker, including workers’ compensation and tort liability.

There is an old rule known as the “Borrowed Servant Doctrine” that creates a special employment relationship where the lending employer is the “general” or “regular” employer, the borrowing employer is the “special” employer, and the employee is the “borrowed servant.” Some lawyers argue that this outdated master-servant language can easily prejudice a jury.

The doctrine is recognized in almost all states, although the specific tests used to determine if a particular worker qualifies as a “borrowed servant” and the employer as a “special employer” do vary. The majority of tests revolve around the question of control, both over the work that is being done and the manner in which it is performed. Many states have adopted a three-part test:

  1. The employee has made a contract of hire, express or implied, with the special employer (consent may be inferred from the employee’s acceptance of the special employer’s control or direction)
  2. The work being done is essentially that of the special employer; and
  3. The special employer has the right to control the details of the work.

Most common relationships that lend themselves to special employer situations

  • Skilled or unskilled labor employed by a temporary staffing agency
  • Property managers who work at a specific property
  • Employees who are hired to work at a client’s location, such as IT personnel and accountants
  • Contractual relationships between a general contractor and subcontractor or equipment rental companies

This doctrine does not apply to employee leasing operations such as PEOs and, in most cases, does not apply to independent contractors.

Why it’s important to understand the terms of the relationship

  • If not protected by a contractual agreement, the workers’ compensation policy of the special employer could be tapped to provide benefits for “borrowed servants,” increasing premiums for additional employees and rates, if someone is injured.
  • An injured “borrowed servant” can sue the person who caused the injury and that person’s direct employer, if the employer is not a “special employer”.

Contrasting two legal decisions illustrates the importance of protecting the company before entering into such hiring agreements. In Gregory v. Pearson, a temp working for Cleveland County in North Carolina filed a lawsuit against the County after suffering a workplace injury. While the County argued that the lawsuit was barred by the special employment and exclusive remedy doctrines and the trial court agreed, the Court of Appeals reversed the decision. Noting that the contract between the temp agency and the County expressly stated that temporary workers were not employees of the County, the Court held that the County failed to satisfy the first requirement of the special employment doctrine, i.e., that the employee had entered a contract of employment with the County. The temp was, therefore, not a special employee, and her case was not barred by the exclusive remedy doctrine.

In Massachusetts, an employee of American Resource Staffing Network, Inc. (ARS) was injured while on assignment at ARS’s customer, State Garden, Inc. (State Garden). The worker was awarded workers’ compensation benefits under ARS’s workers’ compensation insurance policy. The state statute permits injured workers to bring suit against “any person other” than the insured employer who may be liable for the worker’s injuries and the worker sued State Garden claiming that its negligence caused his injury in Molina vs. State Garden, Inc. The contract between ARS and State Garden included an “alternate employer endorsement” to ARS’s workers’ compensation insurance policy. That endorsement provided that ARS’s worker’s compensation policy “will apply as though the alternate employer [State Garden] is insured.” Thus, the Appeals Court determined that the exclusive remedy of workers’ compensation protected State Garden.

Protection options for employers

  • Alternate Employer Endorsement is designed to extend Workers’ Compensation protection to the special employer’s “borrowed servants.” Attached to the general employer’s policy, the endorsement specifically names the special employer, thus extending the required Workers’ Compensation protection without the need of the special employer to make any adjustment to its policy. Insurance expert, Christopher Boggs, Executive Director / Virtual University at Independent Insurance Agents and Brokers of America, notes, “If you are the special employer, this could be a good solution, but if you are the direct employer moving the coverage to the special employer may be the best solution.”
  • Multiple Coordinated Policy Endorsement extends benefits to the borrowed employees rather than having to depend on the staffing firm for coverage, if the staffing agency is unwilling to name the special employer as an alternate employer.
  • Contractual risk transfer. Require the “general employer” to indemnify the “special employer” against all losses, damages and claims arising from the negligence of the “borrowed servant.”
  • Require the “general employer” to name the “special employer” an additional insured under the “general employers” GL Policy.

The determination of the existence of the special employer relationship is based on the particular facts of the case and no two cases are exactly the same. It is the reality of the control that is relinquished to the “special employer,” not the parties’ characterization of the relationship that will determine the outcome.

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