OSHA watch

Temporary enforcement policy on monorail hoists in construction

Employers whose monorail hoists fail to comply with requirements in the Crane and Derricks in Construction Standard will not be issued citations as long as they adhere to other regulations, according to a recent memorandum.

The temporary enforcement policy notes stakeholders identified gaps in the standard regarding monorail hoists, which typically are mounted on scaffolding systems, trucks or trailers. They are used to lift items such as mechanical equipment, precast concrete components and oil/propane storage tanks. Employers still need to comply with the overhead hoist and general training standards. General industry requirements for monorail hoists remain in effect.

New guide will help small businesses comply with silica rule for general industry and maritime

A Small Entity Compliance Guide for General Industry and Maritime to help small business employers comply with the Final Rule to Protect Workers from Exposure to Respirable Crystalline Silica describes the steps that employers are required to take to protect employees in general industry and maritime from the hazards associated with silica exposure.

Window cleaning association creates safety guide for workers

Through its alliance with OSHA, the International Window Cleaning Association has developed a guide for protecting the safety and health of window cleaners. The mobile-friendly guide offers best practices on identifying and avoiding fall, chemical, electrical and other hazards workers face on the job.

Fact sheet explains requirements to protect residential construction workers from confined space hazards

A new fact sheet explains how the Confined Spaces in Construction standard affects common spaces in residential construction, such as attics, basements, and crawl spaces. The fact sheet, developed after consultation with the National Association of Home Builders, and a detailed Frequently Asked Questions document, clarify some of the standard’s provisions and their application to residential construction work.

Construction organization publishes new heat hazard alert

A new heat hazard alert published by CPWR-The Center for Construction Research and Training, reviews heat hazards and the steps to prevent heat illness while working in hot weather. Extreme heat causes more deaths than any other weather-related hazard.

Publication on preventing injuries in the electric power industry now available

The electric power industry has released a case study to show the integral part safety and health programs play in keeping electrical workers safe on the job.

New webpage for HAZWOPER

Intended to help workers and employers involved with the Hazardous Waste Operations and Emergency Response Standard (1910.120) for construction and general industry, the webpage includes links to background information on HAZWOPER and corresponding standards, as well as resources for general businesses, worker preparedness, and training.

Enforcement notes

California

Chevron Corp. has settled workplace safety and health citations issued in relation to a 2012 refinery fire for more than $1 million. The negotiated settlement requires Chevron to institute measures, estimated over $20 million, to ensure process safety at the Richmond refinery, to develop and implement criteria and procedures to monitor equipment to alert operators when equipment should be replaced, and to provide specialized hands-on training on incident command situational awareness and hazard recognition for all Chevron Fire Department personnel.

Oakland-based Attic Pros Inc. was ordered to pay $2,109,480 in wages, liquidated damages and waiting time penalties for 119 workers who were misclassified as independent contractors, and $1,481,600 for civil penalties according to the state Labor Commissioner’s Office.

Florida

Ann Arbor-based Douglas N. Higgins Inc. and its related contracting company, Florida-based McKenna Contracting L.L.C. were issued 10 serious violations with total proposed penalties of $119,507 after three employees died from exposure to toxic gases in a manhole at a Florida worksite. Among others, the citations included failing to purge or ventilate a confined space before entry, exposing workers to an asphyxiation hazard and not providing necessary rescue and emergency equipment for employees overcome inside a permit-required confined space.

Georgia

An administrative law judge of the U.S. Occupational Safety and Health Review Commission upheld citations and a total of $6,013 in penalties assessed against Atlanta-based Empire Roofing Company of Georgia Inc. whose employees were not wearing fall protection. The company had appealed the citations and proposed fines, contending that the employees’ failure to tie off was the result of unpreventable employee misconduct and that all employees were appropriately trained. But the judge ruled that the employer did not meet the burden to use the defense, which requires “more rigorous” proof of employee misconduct since supervisors have a duty to protect their employees.

After several appeals, a safety citation against Smyrna-based Action Electric Co., for failure to affix a personal lockout or tagout device while servicing a client’s equipment that resulted in a fatality was upheld by a federal appeals court. The company contested the citation arguing that the lockout/tagout standard did not apply because the equipment that caused the fatality was not the equipment that its employees were servicing, and that its employees were only looking at the fans, not working on them, at the time of the incident. The Department of Labor responded that the cooling bed constituted one discrete mechanical system for the purposes of lockout/tagout rules, which would require employees to control the energy of the entire cooling bed before conducting work on it that could expose them to danger. The federal 11th Court of Appeals reinstated the citation noting employers are capable of determining the appropriate scope of their LOTO protocols and that it did not matter whether the employees were working on equipment or merely observing it.

Michigan

Following two reports of finger amputations on machines and an employee complaint alleging numerous safety hazards, the MIOSHA issued citations with penalties totaling $263,000 to AJM Packaging in Taylor.

Minnesota

Rahr Malting Co. in Shakopee faces $52,800 in penalties for safety violations identified after a worker was fatally injured in January. Inspectors issued four serious citations after determining that it failed to control potentially hazardous energy and provide point-of-operation machine guarding.

New Jersey

Delair-based Aluminum Shapes LLC, an aluminum manufacturing company with a long history of noncompliance has been cited for 51 safety and health violations and proposed penalties of $1,922,895. Willful violations included: provide appropriate personal protective equipment, conduct air monitoring prior to permit-required confined space entry, have an attendant during permit-required confined space entry, complete a required confined space entry permit to identify, evaluate and control hazards in the space, provide confined space training, utilize proper Lockout/Tagout (Control of Hazardous Energy) Procedures and training.

Ohio

Amsted Rail Company Inc., a manufacturer of cast steel freight components, faces $610,034 in proposed penalties for six repeat, 19 serious and five other-than-serious safety and health violations after investigators found workers at its Groveport plant exposed to machine hazards and silica. The company has been placed in the Severe Violator Enforcement Program.

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

HR Tip: Workers’ Compensation Medicare Set-Aside (WCMSA) Re-Review process updated

 

The long-awaited update of the WCMSA Re-Review process by The Centers for Medicare and Medicaid Services (CMS) was issued in July. Section 12.4.3 provides the changes that have been made to the expanded Re-Review process.

Since CMS’ MSA review process has been in place, the Re-Review process has been somewhat limited. The update adds a third Re-Review option called an “Amended Review,” which reads, “You believe projected care has changed so much the new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.”

To be eligible for an Amended Review, the following criteria must be met:

  • The MSA must have been originally submitted between one and four years from the date the re-review is submitted and
  • The re-review request cannot have had a previous request for an Amended Review and
  • Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Only one Amended Review is permitted per case and another re-review cannot be requested if a request for an Amended Review is denied. As part of the review, generic drugs can be substituted for brand-named medicines but this cannot be the sole reason for the request. The request will consider medical and/or legal documentation that post-dates the CMS determination and medical circumstances that have changed.

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

The quandary of legal pot and workers’ compensation deepens

Now that 28 states have legalized the medical and/or recreational use of marijuana, employers are struggling with zero tolerance policies, pre-employment drug testing, employee drug testing, discrimination suits, and general uncertainty. Laws about marijuana vary from state to state, making questions about how it affects workers’ comp and other employer policies even more confusing. Further, as states tighten up laws on the use of opioids to manage pain, some argue that cannabis is a viable alternative, raising concerns that workers will be impaired when they return to work.

The changing landscapes are challenging for employers and will lead to more litigation, new laws and regulations. Here are six recent actions and trends that employers should know about:

  1. Federal budget protects medical marijuanaAlthough Attorney General Jeff Sessions has been an outspoken critic of medical marijuana, the $1 trillion spending bill approved in May, which will fund the U.S. government until the end of September, includes language that protects state medical marijuana programs from federal enforcement. It provides no funding for any prosecution of cases involving medical marijuana where it has been made legal. Recreational users are not protected under this provision.
  2. Opioid crisis drives loosening of use of medical marijuana in comp casesAlthough medical marijuana remains illegal under federal law, the landscape of marijuana use in workers’ comp is changing. Some advocate its use as a way to stem the epidemic of addiction and opioid abuse, but others argue there is little validated research to determine its effectiveness and possible side effects. Others see it as an effective way to reduce the ongoing costs of legacy claims, particularly those involving workers who will not return to work.In states such as New Mexico and Louisiana, judges have ordered insurers to reimburse injured workers for medical marijuana, when deemed medically necessary by a treating physician. New Mexico also required carriers to start reporting marijuana reimbursements beginning Jan. 1, 2016. For 2016, 15 payers reported reimbursements for medical marijuana totaling $46,826 for 19 claims. The average reimbursement amount per claim was $2,465. On average, each injured worker was reimbursed for 205 grams of marijuana, or about 22% of the maximum 920 grams allowed per year.In May, the Maine Supreme Court agreed to hear a case in which an administrative law judge had ordered reimbursement under workers’ compensation for an injured worker’s medical marijuana. While the Maine law made clear that medical marijuana was not a drug that could be paid for by a private health insurer, the statutory language does not apply to other insurers, including workers’ comp. Insurers and employers are awaiting the outcome of Bourgoin vs. Twin Rivers Paper Company.

    Even when the law permits insurers to reimburse injured workers for medical marijuana, the claims are complex. The doctors prescribing cannabis typically may not be the same physicians treating injured workers for the medical cause of their workers’ comp claim. It needs to be determined whether marijuana is medically appropriate, why they recommend it, and whether it is really for the work-comp injury or some other condition.

  3. Employers rethinking drug testing policiesA key challenge to employers is measuring impairment, when an employee uses marijuana. At issue is how long marijuana stays in a person’s system and the lack of a reliable test to determine what level of THC (the chemical ingredient that causes the “high”) leads to certain impairment.Positive marijuana tests continue to climb in both federally mandated, safety sensitive workplaces and the general workforce, according to Quest Diagnostics, Inc. Colorado and Washington, where recreational marijuana has been legal for several years, saw some of the biggest leaps for workers in safety-sensitive jobs. However, the dilemma for employers is that a positive test does not always equate with impairment.Although courts have supported employers in pre-employment drug testing cases, fewer Colorado employers are doing it. A tight labor market may be a reason, but some believe employers have become more accepting and looking for other ways to manage the issue.

    Some experts suggest that employers have a separate policy for marijuana testing. In developing any policy, it’s important to consider what type of work employees are doing. Employers can have separate drug testing policies for those in safety-sensitive positions, machine operators, and still another for office and administrative workers.

    Others suggest the use of impairment or psychomotor testing, rather than the traditional urine, saliva, or hair testing, when legally possible. With traditional testing, it’s difficult to determine whether the employee is high and impaired or is testing positive with lingering traces from weekend use. They argue that the point of drug testing is to determine if workers can do their job safely and not endanger others, and that impairment testing that measures reaction time, decision-making, and pattern recognition against an employee’s baseline is more effective.

    The state of Maine recently offered state employers “impairment detection training,” noting employers can continue drug screening of employees until the recreational marijuana law goes into effect in February 2018. However, thereafter, if not amended, testing for marijuana use will violate the state’s regulations protecting those who wish to use marijuana recreationally outside of work.

    However, many employers and federally mandated testing still rely on traditional testing, believing it is the best way to control risk. For example, the Department of Transportation (DOT) determined that the urine tests would not change because of the new state laws legalizing marijuana.

    For a workers’ comp claim to be denied, some states require employers to prove that a worker’s intoxication caused the injury, which can be difficult when the only evidence is a positive marijuana drug test. Employers are encouraged to better train supervisors and employees to recognize impairment and take steps to control and document it.

  4. Non-hiring or firing for positive marijuana testing can lead to discrimination suitsA “watershed” decision in Massachusetts sheds light on the issues employers face in employment practices and zero tolerance drug policies. In Cristina Barbuto vs. Advantage Sales and Marketing L.L.C., a worker was authorized by her physician to use marijuana to stimulate her appetite and help with symptoms of Crohn’s disease and informed the company that she would test positive on drug screenings. A supervisor told her the medicinal use of marijuana “should not be a problem,” which he later confirmed after consulting with others at the company, according to court documents.On her first day of work, she submitted a urine sample for a mandatory drug test and began work. Later in the day, she was terminated by an HR rep for testing positive for marijuana and was told the company followed federal, not state, law. She filed discrimination charges, alleging six claims, including handicap discrimination, invasion of privacy and denial of the right to use marijuana lawfully as a registered patient to treat a debilitating medical condition.A trial court judge dismissed all claims except the invasion of privacy claim, but a six-judge panel of the Massachusetts Supreme Court reversed the lower court judge’s dismissal of her claim for handicap discrimination and related claims, but affirmed the motion to dismiss on counts claiming an implied private cause of action and wrongful termination in violation of public policy. Notably, the supreme judicial court became the first appellate court in any jurisdiction to hold that medical marijuana users may assert state law handicap or disability discrimination claims-regardless of whether the state’s medical marijuana statute provides explicit employment protections. (Massachusetts’s medical marijuana statute does not provide such employment protections.)

    “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation,” the court ruled. “The only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.” The case has been remanded to the Superior Court.

    Takeaways for employers:

    • Employers may find it harder to argue that an adverse employment action against a medical marijuana user is justifiable solely because marijuana is categorized as an illegal controlled substance under federal law
    • Courts may increasingly look upon “the use and possession of medically prescribed marijuana by a qualifying patient as lawful” as the use and possession of any other prescribed medication
    • State law handicap or disability discrimination claims may apply to medical marijuana users
    • Employers should engage in the “interactive process” with medical marijuana users to determine if they can perform essential job functions with a reasonable accommodation
  5. Comp coverage for medical marijuana dispensaries uncertainThe conflict between federal and state laws on marijuana means that individual insurers are using their business and legal judgment in deciding whether to provide services to the marijuana industry. Hawaii’s largest workers’ compensation insurer, Hawaii Employers’ Mutual Insurance Co. (HEMIC), recently announced that it is canceling insurance policies for seven medical marijuana dispensaries that were slated to open this summer. In its statement, it noted that legal opinions clearly acknowledge that HEMIC and its board of directors have potential exposure for criminal liability based on federal law applicable to marijuana businesses.While many major carriers have provided coverage in other states, there is more uncertainty under the new presidential administration. On the other hand, it is a $6.5 billion dollar business and legitimate employers can be an attractive market for insurers.
  6. New information is emergingThe federal government’s stance that marijuana is an illegal substance has stalled research on its effectiveness, side effects, dosage, and so on. The first large study to directly compare medical marijuana to an opioid drug is beginning at the University of Colorado, Denver. The grant for this study is part of $9 million awarded by the state for trial purposes, funded in part by tax money from marijuana sales.A recent study by the Highway Loss Data Institute (HLDI) showed a correlation between marijuana use and traffic accidents. Claims frequency in Colorado, Washington, and Oregon, the states to first legalize recreational marijuana, was 3% higher than the controlled states that had not legalized marijuana. The HLDI has also begun a large-scale study in Oregon to assess how legalized marijuana use may be changing the risk of crashes with injuries.

There’s no easy answer for employers trying to respond to the increase in marijuana use and be compliant with the law. While the use of medical marijuana is still in its infancy, it’s important to recognize that if a doctor concludes medical marijuana is the most effective treatment for an employee’s debilitating condition, an interactive process, including an exception to an employer’s drug policy, may be warranted. Staying informed, updating and monitoring drug policies, educating employees on how it can impair judgment and motor skills, developing policies based on the employee base, and consistent hiring and disciplinary treatment can help ensure that they have a safe and productive workforce.

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

Two costly medical actions to avoid: physician dispensing and emergency rooms

Physician dispensing

While many states have enacted laws governing physician dispensing, it is still common in post-reform states, with California, Florida, Illinois, Maryland, and Pennsylvania still seeing a large portion – 54% to 64% – of pharmaceutical costs coming from doctors who dispense drugs. According to a study by the Workers’ Compensation Research Institute (WCRI) drug companies have introduced newer versions outside of those addressed in the reforms to circumvent the laws. The WCRI study found that “when dispensing these new drug products, some physician-dispensers were paid much higher prices than they were paid when dispensing existing-strength drug products.”

 

Emergency room treatment

Treatment at an emergency room is not only one of the most expensive places to get medical care, but also likely to derail a rapid return to work. While often used for convenience, it should be a last resort and used for critical, emergency situations only.

According to a recent study published in JAMA Internal Medicine, there are exorbitant markups in emergency medical care and emergency departments charged an average markup of 340 percent on Medicare allowable amounts. Further, facing physician shortages, some hospitals have been outsourcing the staffing and operation of emergency rooms. According to a recent article in the New York Times, this has led to higher charges for more costly procedures, out-or-network rates, and surprise bills.

If the costs alone are not a sufficient deterrent, understanding the process should be convincing. An emergency physician is trained to triage and stabilize an injury. There isn’t time or expertise to focus on short-term work restrictions or long-term recovery. In most cases, the injured worker will be told to rest and take days or even weeks off from work. It’s also usual to refer the injured worker to a specialist, which could mean further delays in treatment. And a disability mindset begins to build in the worker.

On the other hand, if treatment begins with an occupational medicine provider or clinic, they will prescribe treatment plans that are going to return your employee to work as soon as possible. They can also help manage the workers’ compensation process so that employees understand the value of recovery at work.

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

OSHA update: Electronic record keeping, regulatory agenda, combustible dust, noise in construction

OSHA’s Injury Tracking Application is now available allowing employers to electronically enter their required 2016 injury and illness data from Form 300A. The Improve Track of Workplace Injuries and Illnesses final rule went into effect Jan. 1 with an initial compliance deadline of July 1. But OSHA has proposed delaying that deadline until Dec. 1, in an effort to allow employers to become familiar with the new web-based reporting platform, as well as provide time for the Trump administration to review the requirements before enacting them.

The requirements are to be phased in over two years. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by December 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by December 1, 2017, and their 2017 Form 300A by July 1, 2018.

The agency’s data submission process has four steps including:

  • creating an establishment
  • adding 300A summary data
  • submitting data to OSHA and
  • reviewing the confirmation email

There are three options for data submission. The first enables users to manually enter data. The second allows employers to upload a CSV file to process single or multiple establishments at the same time. Lastly, an application programming interface will allow users to sync automated recordkeeping systems directly to the platform.

In addition, OSHA says it plans to issue a separate proposed rule to reconsider, revise, or remove other provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule. The Agency will seek comment on those provisions in the separate proposal.

What should employers do now?

The future of the rule is uncertain and OSHA has proposed delaying the deadline for compliance until Dec. 1. Presently, the decision-making positions within the agency are thinly staffed. The assistant secretary (the head honcho) position is vacant. The chief of staff and senior advisor positions are vacant. One of two deputy assistant secretaries is vacant. While most pundits think the Trump administration will remove or significantly revise the provisions to publish the data online, it’s unknown what will be done with these historically private records once they are submitted electronically. For that reason a wait and see approach might be best, particularly for those with questionable performance.

 

Notable drops on regulatory agenda: combustible dust and noise in construction

The administration recently published its Unified Agenda, which reports on regulatory and deregulatory activities under development for the coming year. As expected the potential regulatory actions have been cut more than in half. The agenda lists 14 standards in either the pre-rule, proposed rule or final rule stages compared to the 30 listed on the Fall 2016 agenda by the Obama administration.

The combustible dust standard intended to prevent combustible dust explosions is the most notable drop as it was added to the agenda following a catastrophic sugar dust explosion in Georgia in 2008. Also, the noise in construction initiative has been dropped. OSHA has a hearing conservation standard for general industry workers, but nothing equivalent for construction workers. These initiatives have been classified as “completed actions” and for each initiative OSHA states, “OSHA is withdrawing this entry from the agenda at this time due to resource constraints and other priorities.”

Other pre-rule and proposed rule items moved off the main regulatory agenda and placed on a long-term actions list include prevention of workplace violence in health care and social assistance, emergency response and preparedness, infectious disease rule, and tree care standards.

Long-term actions are items under development, but for which the agency does not expect to have a regulatory action within the 12 months after publication of the current edition of the Unified Agenda.

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