OSHA watch

National Emphasis Program to reduce or eliminate worker exposure to silica extended in Pennsylvania, Delaware, West Virginia, and District of Columbia

An initiative to increase the focus of inspections in maritime, construction, and general industries on identifying, reducing, or eliminating worker exposures to respirable crystalline silica has been launched. The NEP on respirable crystalline silica targets specific industries in each area that are expected to have the highest numbers of workers exposed to silica. It also focuses on enforcement of two new silica standards, one for the general and maritime industries, and one for the construction industry. Compliance assistance is available until May 3, 2020, after which inspections under the NEP will begin.

National Safety Stand-Down to Prevent Falls postponed

The 7th annual National Stand-Down to Prevent Falls in Construction, originally scheduled for May 4-8, 2020, was postponed due to the COVID-19 pandemic. The event will be rescheduled this summer.

National Safety Stand-Down to Prevent Falls webinar

The National Safety Stand-Down to Prevent Falls will conduct an April 16 webinar on fall prevention practices.

Whistleblower protections public meeting

public meeting on May 13 will solicit comments on the whistleblower protection laws. The public will also be able to participate in the meeting by telephone.

Voluntary Protection Programs manual revised

The Policies and Procedures Manual for the Voluntary Protection Programs was recently revised.

Recent fines and awards

Florida

  • Turnkey Construction Planners Inc., based in Melbourne was cited for exposing employees to fall hazards at two worksites in Port Saint Lucie. The roofing contractor faces $114,294 in penalties.

Illinois

  • Monahan Filaments LLC., based in Arcola, was cited for violations of machine safety standards after an employee suffered severe injuries. The manufacturer of synthetic filaments for brushes and brooms faces $258,271 in penalties and was placed in the Severe Violator Enforcement Program (SVEP).

Massachusetts

  • In response to a complaint, Dollar Tree Stores in Boston was cited for exit and storage hazards and faces $523,745 in penalties. The national retailer received two willful and three repeat violations.

Missouri

  • R&R Contracting Services Inc. was cited after an employee suffered fatal injuries when he was crushed by a powered industrial truck at the company’s O’Fallon facility. The portable restroom service provider faces nine serious violations and proposed penalties of $52,626.

Nebraska

  • Interstate Commodities, based in Troy, New York, faces $228,592 in penalties for grain handling violations after an employee was fatally engulfed in a grain bin at the company’s Fremont facility. The company was cited for seven repeat and 10 serious safety and health violations involving hazards associated with grain handling, falls, respiratory protection, powered industrial trucks and electrical safety. It was placed in the SVEP.

Pennsylvania

  • In response to a complaint, Dollar Tree Stores in Bethlehem was cited for exit and storage hazards and faces $296,861 in penalties.

Wisconsin

  • Dollar Tree Stores was cited for exit, storage, and fire hazards at its Marinette location. The national discount retailer faces $477,089 in penalties.

For additional information.


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HR Tip: Resources to help navigate the Families First Coronavirus Response Act (FFCRA), IRS tax relief, and related employment laws

On Tuesday, March 24, the Department of Labor (DOL) announced that the effective date of the leaves available through the Families First Coronavirus Response Act (FFCRA) will be April 1, 2020. The U.S. Department of Labor (DOL) issued regulations for the Families First Coronavirus Response Act (FFCRA) on April 1, which confirmed that employees must give notice to their employers of the need to take leave and provide documentation to support paid sick leave and emergency family and medical leave. The IRS also provided guidance on needed documentation. Here are current resources:

Temporary guidance

IRS guidance

Families First Coronavirus Response Act: Employee Paid Leave Rights

Families First Coronavirus Response Act: Employer Paid Leave Requirements

 

Q & A

Families First Coronavirus Response Act: Questions and Answers

COVID-19 and the Fair Labor Standards Act: Questions and Answers

COVID-19 and the Family and Medical Leave Act: Questions and Answers

 

Posters

Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

Federal Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

Families First Coronavirus Response Act Notice – Frequently Asked Questions

 

Tax credits for small and mid-sized businesses

Under the act, employers are able to recoup these payments immediately by keeping a portion of the deposit it otherwise would pay as part of their employees’ federal, social security and Medicare taxes. Eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS. If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS.

Employers need to keep accurate documentation on these issues.

More information

IRS Coronavirus Tax Relief

 

Field Assistance Bulletin

Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA)

 

HIPPA, FMLA, and ADA

NIH HIPAA Privacy and Novel Coronavirus

The FMLA and Leave

ADA Accommodation

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

FAQ: Coronavirus and the workplace

Q. Can employers ask employees who exhibit symptoms to leave work and stay home?

A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC Guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act addresses these issues.

Q. What should we do if one of our employees has COVID-19 symptoms or tests positive for COVID-19?

A. “Employers should send the employee home and require them to stay home until they are able to return under CDC guidance. It is important to note that return to work standards and time frames may be different depending on circumstances. Employers should review the CDC’s website for guidance. If an employee tests positive, the employer should also consider notifying other employees who may have been exposed at work, but maintain the confidentiality of the employee who tested positive. A good CDC reference for employers” – East Coast Risk Management

Q. What should we do if one of our employees has had contact with a person with COVD-19 symptoms or someone who has tested positive for COVID-19?

A. “Employers should review the risk categories established by the CDC and develop a response based on that guidance. This CDC guidance ultimately puts employees into a risk category based on symptoms, travel, and level of contact with a symptomatic individual. If there is a risk that the employee’s contact with another person puts them at risk of contracting COVID-19, the employer should send the employee home and require them to stay home until they are able to return under CDC guidance. The CDC risk assessment guidance can be found here.” – East Coast Risk Management

Q. How much information may an employer request when an employee calls in sick to work?

A. The EEOC has issued guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, that explains during a pandemic, ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. They may also require the employee to undergo medical testing before returning to work.

Q. When may an employer take the body temperature of employees during the COVID-19 pandemic?

A. While under normal circumstances, measuring an employee’s temperature is considered a medical exam and prohibited under the ADA, employers may now measure employees’ body temperature. However, the practice needs to be consistently applied and employers need to know that some people with COVID-19 do not have a fever, and not all fevers are COVID-19 related. The risks to the worker taking temperature must be evaluated and proper PPE provided to minimize the hazard. OSHA offers guidelines.

Q. What are the most effective cleaning products to sanitize our facility?

A. The Environmental Protection Agency has added nearly 200 registered disinfectants to an online list of cleaning products that can help prevent and reduce the spread of the coronavirus and has made the list sortable, searchable and printable. Employers must also ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200) and to provide proper PPE and training, when necessary. If this is a non-typical task for an employee, they must be trained at the time of their first assignment.

Q. When employees return to work, can employers require medical documentation?

A. Yes, however, as a practical matter, doctors and other health care professionals may be too busy to provide such documentation in a timely way. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, or an e-mail to certify that an individual does not have the pandemic virus. A best practice would be to follow CDC guidance and instructions from public health authorities.

Q. Do we need to report a confirmed or suspected case of coronavirus to the CDC or local health department?

A. No, the health care professionals will handle the reporting requirements.

 

Workers’ Comp – experience mod and audit considerations

Q. If a Comp claim is accepted will it go on the experience mod?

A. As it stands, yes. This question came up when Cause of Loss codes were updated this week to include a code for COVID-19. Every injury has a Cause of Loss code. It’s how rating bureaus and other agencies track what types of injuries are happening. Except for the code for claims arising from the 9/11 attacks, none of them have been given special treatment in experience rating.

It is worth noting that it was March 2002 before the rules relating to excluding 9/11 claims were approved. If rules excluding COVID-19 claims are coming, we would expect them well after the outbreak is considered over.

Q. If a business continues to pay non-working employees, will it count on the audit? Also, will the pay employees receive under the newly passed laws for sick time or FMLA benefits count on the audit?

A. Probably so. A few states (Oregon, South Dakota, Kansas) have rules that allow for the exclusion of sick time and vacation pay.

Rule 2.F.2 of the NCCI Basic Manual allows for the reallocation of payroll for KEY employees of construction or stevedoring risks who are paid despite the business being idle. This rule is primarily used when a business goes through a seasonal shutdown but retains a few key employees who may work in the office or may not work at all. Moving their payroll to 8810 is permissible. Per communication with NCCI this week, this rule does NOT apply to any other type of business. Idle time is classified the same as being at work.

Our recommendation: EVERY business in either of these situations should keep a close accounting of the money spent. If the rules change in the future, only those with the appropriate records will be able to take advantage of them.

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

Coronavirus: Workers’ Compensation and OSHA considerations

Worker’s Compensation

Compensability

Occupational disease law is written with the intent to cover diseases that arise in the course and scope of employment and have an exposure that is elevated from the exposure of the general public. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. A common disease that the public is exposed to is generally not covered under the occupational disease category, such as the flu and common colds. Furthermore, the National Council on Compensation Insurance (NCCI) notes that that many state workers’ comp statutes exclude “ordinary diseases of life.”

Therefore, in most situations, it would be difficult to prove that coronavirus resulted from a risk at work, as community spread has made the risk prevalent outside of the workplace and the incubation period can be anywhere from 2 to 14 days.

However, there are exceptions, notably healthcare providers and first responders caring for patients diagnosed with the coronavirus. Here employees are at a substantially greater risk of contracting coronavirus than the risk experienced by the general public.

Washington state, which operates a monopoly workers’ comp system, issued a directive providing workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. However, it also noted in most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition, and will be reviewed on a case-by-case basis. North Dakota has issued a similar directive. Other states may follow suit, so it is important to stay up-to-date.

Of course, claims will still be filed and will be determined on a case-by-case basis. Claim adjusters will look to see if employees can prove that they contracted the virus after an exposure at work, the exposure was unique to the workplace, there are no alternative means of exposure, and they can provide medical evidence to support the claim.

The Workers’ Compensation Insurance Rating Bureau of California is partnering with other work comp organizations around the country to create unique codes to identify COVID-19 claims. The new codes will allow the costs of the claims to be tracked, measured, and properly used for pure premium ratemaking and experience rating.

On-site employees: manufacturers, construction, retail

Industries such as manufacturing, construction, and retail face the reality that employees must work onsite. The challenge to keep workers safe in these environments becomes more daunting every day. It’s important to recognize that the uncertainty created by the spread of the virus is a major distraction and distractions can lead to accidents. Safety efforts must adapt to current realities and be the number one priority.

The CDC recommends that employers “actively encourage sick employees to stay home.” To identify high-risk employees, some employers have instituted temperature screening upon entering work, which requires training and protecting the worker who is taking temperatures.

Others have encouraged self-identification and relaxed paid leave policies to urge those with symptoms or those who live with individuals with symptoms to remain at home. Responsible employers have trained managers and supervisors to identify symptoms of possible infection in coworkers and encourage reporting, as well as train employees on responsible behavior, such as handwashing, social distancing, sharing cups, utensils, etc.

Staggering shifts, break and lunch times, adding night or weekend shifts to help with family obligations are other actions employers are taking to keep workers safe. Other steps include installing barriers or creating “zones” to limit employee interaction, cross-training employees, restricting visitors, increasing frequency of sanitizing effort, providing sanitary wipes throughout the facility, and urging employees to follow CDC guidance. Identifying key personnel and creating schedules to isolate them can help keep the facility open.

For construction, the Center for Construction Research and Training (CPWR) has released guidance and offered resources for employees and employers on safety protocols in both English and Spanish.

In retail, it’s important to recognize that even “essential” shopping can endanger low-paid workers who are not trained in pandemic preparedness. Grocery stores are ramping up efforts at disease control, cleaning surfaces and carts more aggressively, providing hand sanitizers, encouraging frequent handwashing, and limiting occupancy and controlling access to checkout lines to ensure social distancing. Some have lifted restrictions on wearing gloves and masks, reduced operating hours, installed sneeze guard barriers at checkout, and increased pay. Even with these efforts, the stores are often busy and understaffed, and employees feel anxious and vulnerable. Educating employees on how to stay safe and letting them know they are valued goes a long way.

The CDC has published an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) with helpful information on what to do if there is a confirmed or suspected case in the workplace.

Telecommuting

The increase in telecommuting opens up another exposure for employers who are not used to having their workers work from home. Even those telecommuters who already know the drill about ensuring safe workspaces are facing different situations with children at home. Everyone is in an environment that is emotionally stressful. It’s good to periodically remind workers that they shouldn’t be sitting on a soft couch working in an awkward posture all day…that they need to be focused on proper positioning of back, wrist, and feet, and that they shouldn’t be plugging in power cords wherever they can and creating trip hazards. Tips on maintaining safe home workplaces are helpful.

Another issue facing employers is how to handle requests by employees for equipment such as an office chair to be delivered to their home. The need to set up, properly train the employee on how to adjust the chair, consistent treatment of all employees, and what to do with the equipment when the worker returns to the office should be considered.

Further, if faced with telecommuting requests by employees with concerns of potential exposure when an office is still open or when offices reopen, it’s important to assess whether such concern is reasonable before refusing this accommodation.

Existing workers’ compensation claims

Access to non-urgent medical care has been greatly affected during this crisis. Expect delays and longer recovery periods. Staying in touch with the injured employee and offering support is critical. Many workers compensation courts have suspended hearings and in-person meetings, while others are allowing virtual or telephone hearing options.

One positive note is the increased use of telemedicine, which the industry has been slow to adopt. Texas relaxed its rules regarding telemedicine and no longer requires patients to visit a doctor’s office before qualifying for telemedicine services and Ohio relaxed its rules that previously restricted the use of the home for video-based screening.

Privacy

Employers must be vigilant in complying with the various labor and employment laws implicated by the virus and be extremely cautious about sharing any health information related to 2019-nCoV diagnosis. Employers can notify managers, supervisors, and other employees who may have been exposed to an employee who contracted the virus but should not reveal the name of the employee, and discourage gossiping and presumptions.

Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. Everyone should refrain from offering medical opinions, but can encourage employees to speak with their physician, local health department, and to use telemedicine.

If an employer opts to take temperatures of workers, it is still considered a medical exam and protected by the ADA. Information must be kept private and in a confidential medical file.

Employee relations

This is a time of unprecedented anxiety and worry for everyone. Be patient with employees as they deal with the fear of being “essential” employees exposed to public interaction, learn “social distancing” at a manufacturing or construction site, adjust to working remotely, and worry about their economic future.

The fastest way to alienate employees is not to show respect for their safety. Anything employers can do to calm employees will help keep the operation going and build loyalty.

Set clear, reasonable guidelines and expectations. Allow employees to openly discuss their questions and concerns without fear of reprisal. Provide daily guidance on key topics like self-care and staying safe. Tell the workforce what the company is doing, how you’re doing it, and what is likely to happen next.

Employees want and need to feel valued and look to their executive team for confidence that there is a way forward. It will take their commitment and engagement to see the company through the crisis. The employer’s actions now will leave an indelible mark on the attitude, retention, and loyalty of employees.

Suggested resources:

CDC: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)

Bain : A CEO Plan for Coronavirus: Actions to Take Now

Gallup: COVID-19: What Employees Need From Leaders Right Now

National Institutes of Health: COVID-19 website featuring health and safety resources for workers who may be at risk of exposure to COVID-19.

Center for Construction Research and Training (CPWR): guidance and resources

The Scary Times Success Manual

OSHA

Dedicated webpage and guidance document

OSHA issued guidance on preparing workplaces for COVID-19, in both English and Spanish. It divides jobs into four risk exposure levels – very high, high, medium, and lower – and specifies what employers should do to protect workers based on their level of exposure. It also suggests employers review their procedures regarding contractors, visitors, and other third parties who access the workplace.

It also has a webpage providing information on hazard recognition, medical information, control and prevention, and additional resources.

Applicable standards

Although OSHA does not have a standard that covers the coronavirus (an infectious disease rule has languished for ten years), its webpage on COVID-19, notes that the General Duty Clause applies. This is a catchall the agency uses to cite employers where there is no standard that applies to the particular hazard. It requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Failure to take steps to protect employees in accordance with OSHA and CDC guidelines can result in enforcement action.

The Personal Protective Equipment (PPE) standard, 29 CFR 1910.132, (in general industry), which requires using gloves, eye and face protection, and respiratory protection also comes into play as does Respiratory Protection, 29 CFR 1910.134.

In California, 019-nCoV is covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets and the agency recently issued guidance on the requirements to protect workers.

 

Recording and reporting requirements

Recording

Although OSHA’s recordkeeping rule exempts common colds and flu, it has explicitly stated that COVID-19 is a recordable illness when a worker is infected on the job. According to OSHA’s website COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19
  • The case is work-related, as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

With the exception of health care, it is going to be difficult to connect work-relatedness of individual cases as community spread has set in. It is going to be necessary to determine on a case-by-case basis, whether it is more likely than not that an event or exposure in the workplace caused or contributed to the illness. For example, if an employee diagnosed with coronavirus was in the workplace after exposure, and a cluster of employees he/she was in close contact came down with coronavirus, it may be work-related because if an exposure in the work environment caused or contributed to the illness, there is a presumption the illness is work related.

An employee reporting an illness to the employer and/or asserting it was contracted in the workplace does not make the case recordable. It is the employer’s responsibility to determine work-relatedness and to document the decision. Further, if the exposure occurred while the employee was working outside the U.S. it is not recordable. “Injuries and illnesses which occur while the employee is traveling in places where OSHA does not have jurisdiction do not need to be recorded on the company OSHA log.”

Reporting

The existing criteria for reporting severe injuries apply to COVID-19 cases, including work-relatedness. Employers must report any hospitalization of a worker if the employee is admitted to the in-patient service for treatment within 24 hours. Given the latency/incubation period between exposure/contraction of the virus, and the time symptoms appear or are significant enough to result in an in-patient hospitalization, it’s unlikely many hospitalization reports will be filed.

Employees must report a fatality to OSHA when it is work related, a confirmed diagnosis, and the employee succumbed to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.

 

Relief for healthcare respiratory protection annual fit-testing

In an effort to preserve the supply of N95 filtering facepiece respirators during the COVID-19 pandemic, OSHA temporarily suspended its requirement for annual respirator fit testing in the health care industry. The temporary enforcement guidance will remain in place until further notice.

Voluntary use respirators

In many industries, employees are asking to wear respirators/masks. If employers permit “voluntary use” (not required by regulations), the employer still must meet certain obligations set forth by OSHA. Employers are also permitted to decline to allow employees voluntary use respirators including N95 masks, if a respirator is not required because of exposures levels in the workplace.

Telecommuting

Regulation on telecommuting is lax and the due diligence is up to employers. OSHA has repeatedly said that it will not investigate the safety of home offices.

However, there is clear guidance on recording injuries while working from home in regulation 29 C.F.R. § 1904.5(b)(7) : “How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”

The regulation gives a few examples.

  • “If an employee drops a box of work documents and injures his or her foot, the case is considered work-related.”
  • “If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related.”

Meeting regulatory deadlines

While it is anticipated that OSHA will cut some slack on enforcing regulatory deadlines, such as annual LOTO inspections and three-year PS audits, it’s important to document why the deadline was missed and undertake interim or alternative measures where feasible. Simply saying, there was a pandemic is not enough.

Retaliation when employees refuse to work

Co-workers of sick employees who refuse to work may be protected by OSHA’s anti-retaliation provisions. The worker must believe in good faith that there is an imminent danger in the workplace and insufficient time to eliminate the danger through regulatory enforcement. Experts suggest that when employees are being rotated into different positions and asked to do things they normally do not do with minimal training or when a group of employees feels their safety is threatened, the risk of successful retaliation suits is higher.

If the employer is following all recommended CDC guidance, communicating the practices may ease the anxiety. However, if the employee still refuses to work, termination could be a risk, if the fear is reasonable.

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

Things you should know

Proposed rule could mean stiff Medicare secondary payer penalties for insurers

The Centers for Medicare & Medicaid Services released a long-awaited proposed rule regarding late reporting of Medicare Secondary Payer data. While the regulation established that insurers and self-insured report the information to CMS when they accepted a medical responsibility in a workers’ compensation claim or provided payment or settlement to a Medicare beneficiary report, it took 13 years to address penalties for failure to accurately report the data.

The proposed rule allows penalties of up to $1,000 per day per claim for failure to register and report Medicare secondary payer data or report with sufficient accuracy. It places a five-year statute of limitations on fines and recovery by CMS.

NLRB releases new definition of “joint employer”

As expected, the National Labor Relations Board (NLRB) tightened up the definition of “joint employer” in a final rule announced Feb. 25. The final rule takes effect April 27 and establishes an entity is a joint employer of a separate employer’s workers only if the two employers share or codetermine the employees’ essential terms or conditions of employment.

Free online training: Preventing workplace violence in retail, food service

The University of Southern Maine, in conjunction with the Maine Small Business Development Center, has launched three free online training modules intended to help employers (fewer than 250 employees) and workers in the retail and food service industries prevent workplace violence. The three modules are:

  • Employer and manager (two hours)
  • Employee (one hour)
  • Trainer (one hour)

Each module is self-paced, allowing users to log in and resume learning when convenient.

New resources from the Center for Construction Research and Training (CRC)

FMCSA final rule delays compliance date for CMV driver minimum training requirements

The Federal Motor Carrier Safety Administration is delaying by two years the compliance date of its final rule on minimum training requirements for entry-level commercial motor vehicle drivers. The new compliance date is Feb. 7, 2022. For more information.

New video for tower workers: safety climb systems

new video from the National Association of Tower Erectors highlights the importance of properly inspecting and using safety climb systems installed on communication towers.

State News

California

  • In a unanimous decision, the state Supreme Court held that the time spent by employees waiting for and undergoing security checks of bags and other personal items is compensable, even when the policy only applies to employees who choose to bring personal items to work. However, the ruling provides a multi-factor test as to whether “onsite employer-controlled activities” must be compensated as “hours worked.”

Illinois

  • The Department of Human Rights (IDHR) issued guidance for employers on the requirements created by the Workplace Transparency Act (WTA), which became effective Jan.1. The guidance provides the “minimum” standards required in connection with aspects of the Act.

New York

  • The New York City Commission on Human Rights (NYCCHR) has released a factsheet on the anti-discrimination protections provided to individuals performing services as independent contractors and freelancers under the New York City Human Rights Law (NYCHRL) that went into effect January 11, 2020.

Wisconsin

  • The Department of Workforce Development (DWD) announced the rollout of additional educational tools that will help workers, employers, and other stakeholders learn more about and connect with organizations and resources that work to advance workplace safety. These include updated publications, a new blog, and social media videos.

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

Legal Corner

ADA

Recent EEOC settlements

  • Des Plaines, Ill.-based M&M Limousine Service will pay a deaf job applicant $30,000 to settle a disability discrimination lawsuit for refusing to hire the applicant based on his disability and failing to consider whether he could do the job with or without reasonable accommodation.
  • Washington-based Prestige Care, Inc., Prestige Senior Living, LLC, and their affiliates will pay $2 million and furnish other relief to settle a disability discrimination suit. The company had policies requiring employees to perform 100% of job duties without restriction, accommodation, or engaging in the interactive process and inflexible leave policies.
  • Barnhart, Mo.-based, Home Service Oil Company, doing business as Express Mart, will pay $25,000 and furnish other relief to settle a disability discrimination suit for failing to hire a job applicant with Tourette’s syndrome and neurofibromatosis for a part-time sales clerk position because of his medical conditions.
  • California-based local grocery outlet PAQ, Inc., doing business as Rancho San Miguel Markets, has agreed to pay $100,000 to settle a disability suit, reinstate the employee and improve its policies related to the ADA. A deli clerk with a disability provided Rancho San Miguel Markets a doctor’s note requesting an accommodation. Her request was denied, and she was subsequently fired.

Workers’ Compensation

30-day grace period to avoid legal fees not extended for holidays and weekends – Florida

In Zenith Ins. Co. v. Cruz, an appellate court ruled that a carrier has 30 calendar days from its receipt of a petition of benefits to rescind a denial of the claim to avoid the imposition of legal fees and that is not extended if the thirtieth day falls on a weekend or holiday. In this case, the claim was initially denied and the 30-day grace period expired on a Saturday. On the Monday, following the 30-day grace period, the employer/carrier rescinded the denial, agreed to pay all benefits, and issued an indemnity benefits check.

The employee was awarded a claim for attorney fees and the carrier appealed. Although rule 60Q-6.109 of the Rules of Procedure for Workers’ Compensation Adjudications provides that if any act required or allowed to be done falls on a holiday or weekend day, performance of the act may be satisfied if done on the next regular working day, the court held that an administrative rule cannot supersede the language of the statute. The statute does not specify business days and precedent has treated other deadlines concerning the filing and receipt of petitions as referring to calendar days.

Positive alcohol test doesn’t nix benefits – Florida

In Krysiak v. City of Kissimmee, a utility technician for the city injured his shoulder. Earlier in the year, he was reprimanded for purchasing beer in a city vehicle, signed a last-chance warning, and completed an employee assistance program. When he returned to full duty, he was still receiving temporary partial disability benefits, missed several days of work without calling in, and a letter was drafted terminating him for job abandonment. However, he returned to work before the letter was sent. When he did report to work, his supervisor was concerned about his ability to work and HR ordered an alcohol and drug test, which came back positive for alcohol. He was terminated for violating the city’s substance abuse policy.

The city has a policy prohibiting workers from being under the influence of alcohol while at work, but the policy does not designate a specific prohibited alcohol level or define the phrase “under the influence.” While a JCC ruled that temporary partial disability benefits were barred since he was terminated for misconduct, an Appeals court disagreed. The city did not present the results of the drug test and simply saying he did not look fit to work was insufficient and remanded the case.

Bus driver who suffered stroke not entitled to comp benefits – Georgia

In Henry County Board of Education v. Rutledge, while warming the air brakes a bus driver noticed smoke or steam coming out of the dashboard and lost consciousness. He had suffered a stroke and filed a workers’ compensation claim. The case bounced between the courts and Board of Workers’ Compensation, revolving around whether exposure to a substance from the bus contributed to or worsened his pre-existing conditions (hypertension and diabetes) and risk for stroke.

The Court of Appeals explained that a stroke is generally not compensable unless the employee can show that his work was a contributing factor. Since the Board had analyzed whether his exposure contributed to or aggravated his injury, it was correct in denying the claim.

Employer cannot be penalized for unreasonably denying medical treatment – Illinois

In O’Neil v. Ill. Workers’ Comp. Comm’n, a divided Appellate Court ruled that the Workers’ Compensation Commission does not have statutory authority to assess penalties against an employer for a failure or delay in authorizing reasonable and necessary medical treatment. A marine technician received approval for surgery for an injury to his right knee, but delayed surgery because he was the only marine technician on staff and it was a busy time. About a week before the scheduled surgery, the employer’s carrier revoked the surgery authorization, indicating that there was a need for an additional investigation because they had found records of an earlier surgery on the knee.

An arbitrator found the earlier surgery was on the lower leg and that there was a causal relationship between the employee’s work and the knee condition. The arbitrator ordered surgery and assessed a penalty of $6,900 as well as the payment of legal fees. However, the Commission determined and the court agreed, it did not have statutory authority to award attorney fees and penalties.

Widow denied benefits because of husband’s preexisting condition – Massachusetts

In Arruda v. Zurich American Insurance Co., an appeals court reversed a district court decision awarding death benefits to the widow of a utility’s sales executive killed in a work-related car crash. He crashed his car on the way to a work-related event, crossing all lanes of traffic.

The autopsy conducted after his accident listed the primary cause of death as heart disease, with spine fracture due to blunt impact as a contributory factor and the police said he experienced a medical episode. His preexisting conditions included hypertension, cardiomyopathy, depression, anxiety, high cholesterol, diverticulosis, insomnia, fatigue, muscle pain and weakness, and fainting spells. Four months before the accident, he had felt weak and fainted and had an implantable cardioverter-defibrillator placed in his chest.

The court found the insurance company presented substantial evidence that his death was caused or contributed to by preexisting medical conditions.

Staffing agency fined $55,000 for misclassifying workers – Massachusetts

Delta-T Group Massachusetts Inc., a national staffing agency that places education sector workers in temporary positions, has been cited $55,000 in penalties for misclassifying employees by the Attorney General. It has agreed to modify its practices to require all school workers who use its services be treated as employees going forward. The state uses a three-prong test, similar to California’s ABC test.

Comp exemption for North Dakota businesses upheld – Minnesota

In John Devos vs. Rhino Contracting, the state Supreme Court issued an order (but not a full opinion) upholding the decision of an appeals court that a law that gives a special workers’ compensation exemption to North Dakota employers is not unconstitutional. North Dakota has a monopolistic comp system and significantly lower benefits than Minnesota.

A 2005 law excludes injured employees of North Dakota companies from collecting Minnesota benefits if they worked in Minnesota for fewer than 240 hours in a calendar year. It was designed to give small businesses, such as mom-and-pop pizza places that delivered into Minnesota, a break so they wouldn’t have to purchase comp insurance in both states.

Workers’ comp coverage not enough to trigger enhanced benefit for mesothelioma – Missouri

In 2014 the state passed a statute that allows a lump-sum payment equal to 300% of the state’s average weekly wage for 212 weeks in occupational mesothelioma claims resulting in permanent disability or death. A dairy farm worker was diagnosed in 2014 with mesothelioma caused by toxic exposure to asbestos that occurred at work and died a year later. He and his adult children filed for a comp claim with enhanced benefits. The farm had closed in 1998.

The case, Vincent Hegger et al. v. Valley Farm Dairy Co., made its way to the state Supreme Court. The court upheld lower decisions that employers have to take affirmative action to elect the enhanced benefits, simply having a workers’ comp policy was not sufficient. The court added that, under the plain language of the statute, employers that do not make the requisite affirmative election for the enhanced benefit have rejected such liability and are thereby exposed to civil suit. Since the farm had closed 16 years before the statute, it could not affirmatively elect to accept liability for the enhanced benefit.

SLU awards must be made for body members, not subparts – New York

In Matter of Johnson v. City of N.Y., a patient care technician sustained work-related injuries to both his knees and in another later accident to his neck, back, shoulder and hip. When it was determined that the scheduled loss of use (SLU) must be reduced by his prior SLU awards of the legs, which encompassed both hip and knees, the employee appealed. Upon appeal, the court noted SLU awards are limited only to those “members” statutorily enumerated in the statute or guidelines. A leg is listed as a statutorily-enumerated member, but not its subparts.

NFL player not a seasonal worker – Pennsylvania

Acknowledging that in earlier decisions, the appellate court had held that injured NFL players are “seasonal” employees for purposes of computing their average weekly wage, the court held that circumstances in Pittsburgh Steelers Sports, Inc. v. Workers’ Comp. Appeal Bd. (Trucks) were different.

Here, the player had a two-year contract, was required to attend all minicamps, practice sessions, to make public appearances and perform other services at the discretion of the employer. This meant he was not a seasonal worker.

Failure to establish a reasonable degree of medical certainty nixes benefits – Tennessee

In Armstrong v. Chattanooga Billiard Club, an employee suffered an electrical shock and alleged injuries to her mouth, face, and right arm. The employer’s physician argued that the dental injuries were not caused by the electrical shock, whereas the employee’s physician said they “could be.” In 2014 the Workers’ Compensation Reform Law strengthened the statutory requirement for compensability. An injury was not compensable unless it arose primarily out of and in the course and scope of employment and causation had to be established to a reasonable degree of medical certainty.

The Appeals Board found the employee’s doctors “could be” opinion insufficient to satisfy the statutory causation standard.

Benefits awarded under occupational disease presumption despite history of heart disease – Virginia

In City of Newport News v. Kahikina, an appeals court affirmed the Workers’ Compensation Commission’s award of benefits to a police officer for heart disease. In 2017 he filed for workers’ compensation benefits, stating his cardiomyopathy was caused by the stress of his job. As early as 2004, he began having heart problems and in 2011, a cardiologist diagnosed him with cardiomyopathy and attributed his irregular heartbeats to his consumption of Red Bull. In 2015, he was hospitalized for chest pain and diagnosed with “unstable angina” as well as hypertension, diabetes and high cholesterol. The Commission found that this episode triggered the two-year statute of limitations and that his claim was timely filed.

The city argued the statute of limitations should have begun with his first diagnosis of cardiomyopathy and, therefore, the claim was untimely. The appellate court disagreed, noting the employee did not know that his occupational disease arose out of and in the course of his employment until the 2015 incident.

Worker who was denied benefits and attempted suicide cannot sue – Wisconsin

In Francis G. Graef v. Continental Indemnity Company, a livestock worker was gored by a bull, became depressed, and was prescribed anti-depressants. About three years after the incident, the insurance company denied refilling the prescription. A month later he attempted suicide by shooting himself in the head. Surviving the attempt, he sued the insurance company that argued the exclusive remedy applied. While a circuit court denied summary judgment to the insurer, the appeals court said the issue should stay with the state’s workers’ compensation system. “(T)he exclusive remedy provision allows for an insurer to be held liable for an employee’s new or aggravated injuries, regardless of fault, as long as those new injuries relate back to the original compensable event.”

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OSHA watch

NEP to reduce or eliminate worker exposure to silica revised

Effective Feb. 4, the National Emphasis Program (NEP) on respirable crystalline silica for general industry, maritime and construction to “identify and reduce or eliminate” silica-related hazards was revised.

Significant changes include:

  • Enforcement of the standards for RCS, promulgated in 2016. One standard covers general industry and maritime, and the other covers construction. Both standards set a permissible exposure limit (PEL) for RCS of 50 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA). The former TWA PELs for respirable quartz silica were calculated based on silica content and were approximately equivalent to 100 µg/m3 for general industry and 250 µg/m3 for construction and shipyards (81 FR at 16294, March 25, 2016).
  • Updated list of target industries, listed by North American Industry Classification System (NAICS) codes.
  • For inspection procedures, compliance safety and health officers (CSHOs) are referred to current enforcement guidance for the Respirable Crystalline Silica Standards.
  • State Plan participation in this NEP has been made mandatory.
  • Area and Regional Offices shall comply with this NEP, but they are not required to develop and implement corresponding Local Emphasis Programs (LEPs) or Regional Emphasis Programs (REPs).
  • Area Offices will conduct outreach programs three months prior to initiating NEP-related RCS inspections.
  • Area Offices are no longer required to send abatement verification to the National Office.

Low hazards industry list updated

The list of low-hazard industries used to determine whether small-business employers are exempt from programmed safety inspections has been updated. Employers in these industries that employ 10 or fewer employees are exempt from programmed safety inspections. The appropriations language contains exceptions for inspections stemming from fatalities, the hospitalizations of two or more employees, imminent danger situations, employee complaints, and health hazards, among other situations.

National Emphasis Program (NEP) on Amputation extended to manufacturing industries in Pennsylvania, Delaware and West Virginia

The NEP on amputations will target industrial and manufacturing workplaces in Pennsylvania, Delaware, and West Virginia where it’s been determined that unguarded or improperly guarded machinery and equipment played a role in employee injuries. A concerted education and prevention effort will also be made to raise awareness. NEP enforcement activities will begin after March 10, 2020, and will remain in effect until the program is cancelled.

New hazard bulletin: grease traps

The new bulletin provides information on how to properly cover grease traps to prevent workers from tripping or falling into them.

Technical corrections and amendments to 27 standards

According to a final rule published in the Feb. 18 Federal Register, the corrections are to 29 CFR 1904 (recording and reporting occupational injuries and illnesses), 1910 (general industry), 1915 and 1918 (maritime), and 1926 (construction).

National stand-up for grain safety week

The National Stand-Up for Grain Safety Week will take place April 13-20.

New webpage to observe 50th anniversary

A new webpage marks the 50th anniversary of the Occupational Safety and Health Act of 1970. Visit www.osha.gov/osha50 to find 50th anniversary events.

Cal OSHA Guidance on requirements to protect health care workers from 2019 novel coronavirus

The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings in California.

Cal OSHA – Employee access to employer’s Injury and Illness Prevention Plan

The Occupational Safety and Health Standards Board (“Standards Board”) approved a rule allowing employee access to their employer’s Injury and Illness Prevention Plan within five days of a request, effective January 1, 2021.

 

Recent fines and awards

Florida

  • The U.S. District Court for the Middle District, Fort Myers Division, sentenced Stalin Rene Barahona, former owner of the now-dissolved SB Framing Services Inc. in Naples, to 30 days in prison. Barahona pleaded guilty to one count of willfully violating federal fall protection standards.

Georgia

  • Pearson Farms LLC was cited for safety violations after an employee suffered fatal injuries at the farm’s post-harvest operations facility in Fort Valley. The employee, who was performing maintenance on a conveyor system, was caught between the load on a forklift and a metal railing. The farm faces $128,004 in penalties.
  • Garick LLC, operating as Smith Garden Products, was cited for exposing employees to safety hazards at the Cumming facility. The manufacturer of specialty mulch products faces $148,867 in penalties. The inspection was conducted in accordance with the National Emphasis Program on Amputations and the Regional Emphasis Program for Powered Industrial Trucks.

Michigan

  • Dearborn Heights School District violated whistleblower statutes by unjustly disciplining, publicly discrediting, and terminating an employee who reported unsafe working conditions to federal and state agencies. The school district was ordered to reinstate the employee and pay a total of $102,905.78 in back wages, damages and other compensation.

Missouri

  • Royal Oak Enterprises was cited for exposing employees to multiple safety and health hazards at company facilities in Branson and Summersville. The charcoal manufacturer faces $339,702 in penalties.

New York

  • Nonni’s Foods LLC was cited for exposing employees to falls and other hazards at the Ferndale facility. Inspected after an employee fell and was hospitalized, inspectors discovered that the employer instructed employees to retrieve stored material by standing on the forks of a forklift that elevated them to a storage area atop a break room, which did not have guardrails. The manufacturer of premium cookies faces $221,257 in penalties.

Pennsylvania

  • Cleveland Brothers Inc., doing business as CB HYMAC, was cited for exposing workers to hexavalent chromium fumes and other safety hazards at the company’s shop in Camp Hill. The company, which provides hydraulic service and repair, machining and chroming services, was cited for one willful violation and 18 serious and two other-than-serious citations, totaling $280,874 in penalties.
  • CLF Construction Inc. and Toll Brothers Inc. were cited for exposing employees to fall hazards after a CLF employee suffered fatal injuries in a fall at a worksite in Media. Proposed penalties are $170,560 for Philadelphia-based subcontractor CLF Construction, and $74,217 for Horsham-based general contractor Toll Brothers.

For additional information.

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