OSHA watch

Recent fines and awards

Florida

  • Cathcart Construction Company-Florida LLC was cited for exposing employees to excavation hazards at worksites in Orlando and Winter Garden. The general contractor faces $303,611 in penalties.
  • Skanska-Granite-Lane, a joint venture operating as SGL Constructors, was cited for exposing employees to safety hazards at the I-4 Ultimate Improvement Project worksite in Orlando. One worker suffered fatal injuries and another was hospitalized. The contractor faces $53,976 in penalties.

Georgia

  • Creative Multicare Inc., a carpet restoration, plumbing, and resurfacing contractor based in Stockbridge, was cited for exposing employees to safety and health hazards after a fatal incident at a worksite in Perry. The company faces $183,127 in penalties for failure to properly manage the handling and labeling of hazardous chemicals.
  • Martin-Pinero CPM LLC, a construction contractor based in Atlanta, was cited for exposing employees to fall hazards after a fatal incident at a highway construction project in Atlanta. The company faces $170,020 in penalties. The inspection was conducted in conjunction with the Regional Emphasis Program on Falls in Construction.

Illinois

  • Three employers, Northwestern University, Hill Mechanical Corp., and National Heat & Power Corp., were cited for exposing workers to permit-required confined space hazards associated with underground steam vaults. Northwestern University was cited for failing to provide required information to contractors and coordinate activities, identify and evaluate high-pressure steam as a hazard, isolate steam energy, perform air monitoring, provide required signage, complete entry permits, evaluate their confined space hazard program and ensure the ability to rescue employees from a confined space. It faces penalties of $105,835. Hill Mechanical Corp. was cited for failing to obtain information from the host employer and coordinate activities, identify and evaluate hazards of the space, isolate steam energy, perform air monitoring, complete entry permits, provide required confined space training and ensure the ability to rescue employees from a confined space. The company faces penalties of $105,835. National Heat & Power Corp., the contractor brought in to complete the repairs, faces penalties of $24,292 for four serious violations involving failing to obtain information from the host employer, adequately isolate steam energy, provide required confined space training, and complete entry permits.

Missouri

  • Skinner Tank Company, based in Yale, Oklahoma, was cited for lack of fall protection after an employee constructing a storage tank suffered fatal injuries in a 50-foot fall at a Missouri agricultural facility. The company faces $415,204 in penalties for two willful and 11 serious safety violations and has been placed in OSHA’s Severe Violator Enforcement Program.

Virginia

  • A $5,000 citation against a naval contractor that trains sea lions to detect trespassers was upheld after the Occupational Safety and Health Review Commission determined that a failure to mitigate drowning hazards led to the death of an employee. The Reston-based Science Applications International Corp was cited under the General Duty Clause.

Wisconsin

  • MODS International Inc., a fabrication company that converts shipping containers into commercial and residential structures, was cited for exposing employees to multiple hazards at their facility in Appleton. The company faces penalties of $216,299 for seven repeat and seven serious safety and health violations. The company is contesting the citations.

For more information.

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

HR Tip: EEOC issues updated Covid-19 Technical Assistance Publication

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers on testing, medical exams, and essential workers.

Some of the updates include:

  • Employers may screen employees for COVID-19. Any mandatory medical test must be job-related and consistent with business necessity, be on a nondiscriminatory basis, and results need to be retained as confidential medical records according to the ADA’s requirements
  • Employers can keep a log of employees’ temperatures, although they must still maintain their confidentiality
  • All medical information related to COVID-19 may be stored in existing medical files
  • A temporary staffing agency or a contractor that places an employee in an employer’s workplace can notify the employer of the worker’s name if it learns the employee has COVID-19
  • Employers cannot postpone a start date or withdraw a job offer because an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, however, they can discuss telework or if the workers want to postpone their start date
  • Employers can disclose employee names to a public health agency when it learns workers have COVID-19
  • Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease when choosing health screening questions
  • There may be reasonable accommodations for individuals with disabilities, absent undue hardship to the employer, that could offer protection to an employee who, because of a preexisting disability, is at higher risk from COVID-19
  • If an employee has a pre-existing condition, such as an anxiety disorder, that has been exacerbated by the pandemic, employers can ask questions to determine whether the condition is a disability and discuss accommodations
  • Undue hardship during the pandemic was clarified. In some instances, an accommodation that would not have posed an undue hardship before the pandemic may pose one now. Loss of income, ability to conduct a needs assessment, acquire certain items, and delivery to teleworkers are considerations

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

Coronavirus and OSHA: important updates

Backtracks on recordability of COVID- 19

Interim guidance reversed previous guidance that COVID-19 transmission in the workplace would be considered a recordable injury. Under the new guidance, the recordability of COVID-19 for non-frontline employers will be enforced only if there is objective evidence that the case may be work-related without an alternative explanation and the evidence was reasonably evident to the employer.

Employers in areas where there is ongoing community transmission “other than those in the health care industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services) and correctional institutions” generally will not be required to record COVID-19 cases because they “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”

The non-exempt employers must continue to make work-relatedness determinations and record on their 300 logs positive cases of COVID-19 likely to have been acquired on the job that result in death, days away from work, restricted work, or medical treatment beyond first aid.

 

Enforcement relief of many regulatory obligations for employers demonstrating “good faith efforts”

In an April 16 memo area offices and inspectors were given the discretion to assess an employer’s good-faith efforts to comply with standards that require annual or recurring audits, reviews, training or assessments, and take such efforts “into strong consideration” before issuing a citation during the current pandemic. Inspectors are directed to evaluate if employers:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies)
  • Implemented interim alternative protections, such as engineering or administrative controls
  • Rescheduled required annual activity as quickly as possible

The memo lists examples of situations in which area offices should consider enforcement discretion, including annual audiograms, hazardous waste operations training, construction crane operator certification, and periodic evaluation for respirator use.

 

Guidance for manufacturing sector

Guidance for the manufacturing sector offering strategies to prevent the spread of coronavirus was recently released. The guidance recommends that manufacturing companies stagger shifts, maintain distances of six feet between employees if possible, allow workers to wear masks, and provide training on the proper donning and doffing of personal protective equipment and clothing. Manufacturers are also urged to promote personal hygiene and provide alcohol-based hand rubs of at least 60% alcohol if handwashing access is not available and provide disinfectants and disposable towels for employees to clean work surfaces. The guidance is available in English and Spanish.

 

New safety alerts: retail sector, construction, package delivery workers

new safety alert provides nine tips for employers and workers at pharmacies, supermarkets, big-box stores, and other retail establishments to help reduce the risk of contracting and spreading COVID-19. The guidance is also available in Spanish.

A new safety alert provides guidance to help protect construction workers from exposure to coronavirus. It is available in English and Spanish.

Tips to protect package delivery workers are addressed in a new safety alert. English Spanish

 

Guidance for meatpacking and processing industries

coronavirus-related interim guidance developed with the CDC for meatpacking and meat processing workers and employers, including those involved in beef, pork and poultry operations, has been released. The interim guidance includes information on cleaning of shared meatpacking and processing tools, screening employees for the coronavirus before they enter work facilities, managing workers who are showing symptoms of the coronavirus, implementing appropriate engineering, administrative, and work practice controls, using appropriate personal protective equipment and practicing social distancing at the workplace.

 

Worker exposure risk chart

To help determine workers’ risk level for exposure to COVID-19, a chart of a four-tiered hierarchy based on occupational risk was developed. It shows what measures to take to protect workers based on industry and contact with others. The levels are:

Very high: Health care and morgue workers performing aerosol-generating procedures on or collecting/handling specimens from potentially infectious patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

High: Health care delivery and support, medical transport, and mortuary workers exposed to confirmed or suspected COVID-19 patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

Medium: Individuals who may have contact with the general public, including anyone employed in schools, high-population/density work environments, and some high-volume retail settings. This category also includes workers returning from locations with widespread COVID-19 transmission.

Lower (caution): Individuals who have minimal occupational contact with the public and other co-workers.

 

Inspectors prioritizing health facilities over other sites during coronavirus crisis

Recent guidance directs inspectors to focus on inspecting hospitals, nursing homes, laboratories, and other “high-risk” settings that are the subject of complaints by workers. Fatalities and imminent-danger exposures related to the pandemic will take priority for onsite inspections. So many employee complaints have been made that letters requiring a response are no longer sent, but employers are sent a letter notifying them about a complaint and directing them to agency guidance and additional resources on how to address COVID-19 risk. On the other hand, Cal/OSHA and other state plans are sending out traditional letters requesting a response within five working days.

 

Employers reminded of whistleblower protections for COVID-19 complaints

The number of coronavirus-related whistleblower complaints prompted a press release reminding employers they cannot retaliate against workers who report unsafe working conditions. The press release lists forms of retaliation, including firings, demotions, denials of promotion or overtime, and reductions in pay or hours. Reports are that there have been thousands of COVID-19-related inquiries and complaints.

 

Further easing of regulations related to respiratory protection

On April 3, two interim enforcement guidance memos were issued regarding the Respiratory Protection Standard (1910.134) and certain other health standards. The reuse of N95 respirators and the use of expired N95s will be allowed if certain conditions are met.

The second memo allows for the use of filtering facepiece respirators and air-purifying elastomeric respirators certified by other countries or jurisdictions, under certain performance standards. The enforcement guidance applies to all industries, especially workplaces where respiratory protection is impacted by the shortage and health care personnel are exposed to suspected or confirmed COVID-19 patients.

third memo was released on April 24 providing guidance on reusing disposable N95 filtering facepiece respirators (N95 FFRs) that have been decontaminated.

 

Poster aimed at reducing workplace exposure to the coronavirus

A new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus is available in twelve languages.

 

COVID-19 quick tips videos

Three new animated videos provide quick tips on social distancing, disinfecting workplaces, and industry risk factors to keep workers safe from COVID-19:

Social distancing

Disinfecting workplaces

Industry risk factors

For OSHA updates visit https://www.osha.gov/SLTC/covid-19/ .

 

Cal/OSHA new guidance on COVID-19 in the workplace

Industry-specific guidance and ATD model plans have been released. The industry-specific guidance includes:

As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry.

 

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

 

COVID-19: Returning to workplace checklist

Employers face a daunting task as they craft new and revised policies for the “new normal” as employees start to return to work onsite. Not only do they have to comply with a myriad of constantly changing federal and state laws and guidelines, but they have to earn the trust of their employees, vendors, and customers that the workplace is safe. It’s critical to have a clear plan that is well communicated, but flexible, as this is uncharted territory. Open communication and encouraging feedback will build confidence as safe and efficient processes evolve.

The details of each employer’s plan will look different. At a minimum, it must reflect compliance with federal and state laws and guidelines. Industry groups and associations provide helpful guidance and resources and OSHA has issued guidance for specific industries. The CDC guidelines for business can be found here.

The American College of Occupational and Environmental Medicine (ACOEM) has launched Getting America Safely Back to Work that describes how OEM physicians can help employers navigate through the myriad return-to-workplace issues as well as return-to-work/fitness for duty issues for injured employees.

Automotive-seating manufacturer Lear Corp. recently published the “Safe Work Playbook,” a guide for safe practices at work during the pandemic for organizations of all sizes. It includes steps for cleaning and disinfecting equipment, staggering shifts and lunch breaks, setting up a pandemic response team, establishing onsite health screening, and creating protocols for isolating employees who come to work sick.

Here are key issues to consider:

  1. Workplace safety: a COVID-19 Infection/Exposure Control Plan
    • Administrative controls: staggered return to work, reducing number of workers onsite at one time, changing or alternating shifts minimizing or eliminating overlap, cross-training workers to accommodate more absenteeism, re-schedule lunch breaks, appointing a COVID-19 coordinator to oversee equipment disinfecting and social distancing
    • Engineering controls: reconfiguring workspaces to promote physical distancing, increasing ventilation rates, high-efficiency air filters, installing physical barriers, one-way traffic patterns throughout workplace, monitors that beep when one worker gets within six feet of another, more handwashing stations, drive-through windows for customer service
    • Pre-shift health screening: temperature checks and health/symptom questionnaires
    • Decisions about personal protective equipment, respirators, face masks, and face coverings – will they be required, who will pay for them, etc.
    • Detailed plans for enhanced disinfecting, including common touchpoints such as time clocks, doors, shared equipment, break room. Shift changes should allow the opportunity for optimal disinfection of the workplace
    • Screening and minimizing interaction with all visitors and vendors
    • Plan for safe meeting places with no more than 10 employees at any meeting
    • Protocols for isolating employees who become ill at work, stay-at-home requirements, and exposure communication to affected staff
    • Restrict access to confined or closed spaces
    • Provide adequate handwashing facilities and/or hand sanitizer that contains at least 60% alcohol
    • Define and limit travel to “essential”
  2. Recalling employees
    • Larger employers are encouraged to use a phasing-in system to limit exposure and build employee confidence
    • Know how to recall furloughed employees to qualify for loan forgiveness under the Paycheck Protection Program and how the new federal paid leave laws apply to employees returning from furlough
    • Keep separate records for payroll period that workers were furloughed for workers’ compensation purposes
    • If job responsibilities have changed, understand what needs to be done for compliance with FLSA and Workers’ Compensation
    • Notify the state unemployment agency of employees recalled
    • Determine how to handle employees who are unable or unwilling to return to work
    • Determine if light duty will be offered to injured workers to return to work and what will happen if they refuse to do so because of fear of exposure
    • Evaluate the need for extra protections for “high-risk” employees
    • Review any benefit and compensation changes that have been made
    • Have a remote pre-return training for managers and supervisors
    • On the first day of facility reopening, have staggered staff training in an area that adheres to social distancing protocol
    • Consider requiring employees to sign and acknowledge the organizations’ policies on preventing the spread of the coronavirus
  3. OSHA
    • The COVID-19 exposure control plan or response plan should provide a detailed description of everything the employer is doing to address the hazard, including an assessment of potential changes to personal protective equipment, administrative controls, workspace separation, and staggered work shifts
    • Keep adequate records of good-faith efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments
    • Understand the reporting requirements for COVID-19 cases
    • Follow guidance issued for your industry
    • Do not retaliate against employees who file complaints
  4. Work from home
    • When possible, continue remoting working and flexible hours
    • Review policies to determine if they need to be strengthened or updated
    • Communicate which jobs will be permitted to continue to telework and why
    • Consider staggering work in office and at home among team members
    • Assess IT infrastructure and staff
    • Monitor productivity and be clear about expectations

Looking ahead

Employers have learned valuable lessons regarding their resiliency over the past months. It’s important to prepare for a potential second wave in the fall as well as implement a business continuity plan, including infectious disease control, if a plan does not exist.

A time of crisis is what truly defines a reputation. Your response to your employees, customers, and vendors will be the key to survival and long-term prosperity.

Additional resources and a formal checklist can be found at the Duncan Financial Group COVID-19 Resource Center Online

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

Coronavirus and Workers’ Compensation: important updates

Regulatory and legislative activity

In response to COVID-19, there have been a host of changes to state laws, either through legislative or executive action, relating to presumptive coverage, telehealth, utilization review, premium payment and cancellation relief, screening and testing, hearings, and more. This is a fluid situation and, to some degree unexpected expansion of coverage and compensability. The NCCI has an excellent resource that provides weekly updates by state.

One area to watch closely is the extension of presumption of coverage for COVID-19 to include first responders and health care workers and, in some cases, other essential workers such as grocery employees. When state policy is amended so that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation, the presumption places the burden on the employer and insurer to prove that the infection was not work-related, thus making it easier for those workers to file successful claims.

Minnesota, Wisconsin, and Alaska enacted legislation covering first responders and in some cases, health care workers. Executive actions to implement presumption policies for first responders and health care workers in response to COVID-19 were issued in Arkansas, Florida, Illinois, Kentucky, Michigan, Missouri, North Dakota, and Washington state.

In Illinois coverage was initially even broader; however, a County Circuit Court Judge issued a temporary restraining order against the emergency changes made by the Workers’ Compensation Commission. The Commission then voted unanimously to repeal the rule, citing the “uncertainty and expense of litigation.” The changes would have created a presumption that work is the cause of COVID-19 if contracted by any “frontline worker” identified in Gov. J.B. Pritzker’s March 20 stay-at-home order, including workers at grocery stores, laundries, banks and hardware stores, among other businesses. The lawsuit argued that the commission exceeded its authority and that the legislature would be the proper body to implement such changes. Some speculate that the repeal may lead to an executive order.

Kentucky created a COVID-19 presumption for workers in grocery stores, child-care centers, domestic violence shelters, and rape crisis centers, in addition to first responders and healthcare workers. However, it requires the same evaluation as other claims as to whether the disease acquisition occurred in the course of and scope of employment.

Action is also under consideration in Louisiana, Massachusetts, New Jersey, New York, Pennsylvania, Puerto Rico, Ohio, Vermont, and Utah. For more information.

Employers and insurers are concerned that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges. A recent study by the National Council on Compensation Insurance (NCCI) estimated that 49 million to 62 million workers could potentially qualify as essential workers who could be eligible for workers compensation relating to COVID acquisition. Costs could range from $1 billion to $80 billion in the 38 states it serves.

The California Workers’ Compensation Insurance Rating Bureau (WCIRB) was asked to provide the cost impact of a conclusive presumption for health care workers, firefighters, EMS and rescue employees, front line law enforcement officers, and other essential critical infrastructure (ECI) employees. The results were staggering. As reported in their Research Brief, the annual cost estimates of COVID-19 claims range from $2.2 billion to $33.6 billion with an approximate mid-range estimate of $11.2 billion, or 61% of the annual estimated cost of the total workers’ compensation system before the impact of the pandemic.

Similarly, the New York Compensation Insurance Rating Board conducted a legislative analysis of the potential cost impacts of COVID-19 virus exposure as an occupational disease. It estimated in late March that presumptive COVID-19 coverage could cost the system more than $31 billion – more than triple the state comp system’s current annual losses in both the insured and self-insured markets.

 

Reporting payroll of furloughed workers, class code changes, repurposing operations

NCCI

On April 23, 2020, NCCI published Item B-1441 – Revisions to NCCI Manual Rules Related to the COVID-19 (Coronavirus) Pandemic. This was filed to all NCCI states and submitted to the independent bureau states for their consideration. The states that have adopted these rules as of April 30 include Alabama, Arkansas, Colorado, Connecticut, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Mississippi, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, and West Virginia. Wisconsin, which is an independent bureau state, was the first state to approve new rules. Michigan has indicated they are adopting the rule for their residual market and carriers operating in Michigan can adopt the rule.

The key points are:

  • These rules will apply beginning March 1, 2020. Any policy that was effective on 3/1/20 is covered by these rules. It will be effective retroactively to March 1, 2020 and will expire on December 31, though this date may be adjusted as circumstances warrant.
  • Employers that have furloughed employees, but continue to pay them, are allowed to exclude these payments from the premium calculation and payroll is reported to code 0012. To do so, the employer must keep “separate, accurate, and verifiable records” to provide the insurance company auditor when the policy expires. Without these records, the insurance company will have to include the pay in the premium calculation.
  • This includes paid sick leave or paid FMLA approved by congressional action in response to the crisis.
  • Payroll reported to code 0012 is also excluded from Experience Rating
  • This rule is only applicable when an employee is not performing ANY duties. If the worker is performing tasks in service of the employer, the payroll will be reported to the appropriate classification, and premium will be charged appropriately.
  • This filing did not address treatment of COVID-19 claims on the experience mod, although it is expected to be addressed in the future.

Another consideration is class code changes now that so many employees are working from home. Kevin Ring, the Lead Analyst for the Institute of WorkComp Professionals, notes whether a class code assignment can change depends on the circumstances. If the employee was already classified in 8810 (Clerical Office), the classification would change to 8871 (Clerical Telecommuter).

For other employees to qualify for a change in classification, the job must change. For example: You operate a manufacturing facility and have an employee who programs CNC machines for your manufacturing process. The job consisted of not only writing programs but inspecting parts to ensure the program is working correctly. As a result of the crisis, this employee is now working from home writing programs. This employee could have their payroll re-classified into 8871 because they are currently doing a purely clerical job, with no exposure to the manufacturing shop.

Some classifications include clerical employees in their definition. In these cases, reclassifying employees who are now working from home would not be allowed.

Stay current on NCCI updates here.

 

WCIRB – California

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has made a special regulatory filing to the California Insurance Commissioner. Major provisions include:

  • Exclude COVID-19 claims from experience rating
  • Exclude payments to employees who continue to be paid while not working
  • Allow assignment of classification 8810 for temporary change in duties

Stay current on California updates here.

New Jersey has adopted similar changes.

Also, manufacturers that shift gears and repurpose their operations to meet changing customer demand, or to produce gowns, masks, and ventilators amid the COVID-19 pandemic, need to be sure that their insurance coverage is appropriate. Creating a new or different product can change the company’s risk profile and exposure base. While some companies may have government immunity under the Defense Production Act, it’s important to seek counsel to better understand the liabilities involved.

There are a lot of moving parts right now, including premium reductions, class codes, industry classifications,payroll changes, and the impact on the Mod. It’s critical to discuss your situation with your Certified WorkComp Advisor to find the best moves for your business.

 

Claims/premium impact

In a national survey of 15 workers’ compensation insurance carriers by Health Strategy Associates, respondents said on a scale of 1-5 (with 5 being extremely significant), COVID-19 will have an impact of 4.4 on the industry. The largest impacts are projected to come from an increase in death claims and delayed return to work. The rapidly changing legislative environment combined with the uncertainty of the future makes it difficult to know what the long-range impact of COVID-19 will be on workers’ compensation. However, this is what we do know:

  • In the short-term, carriers are being impacted by premium reductions, declining employer payrolls, premium leniency, and cancellation policies.
  • The impact will vary significantly by industry. Some industries will experience increased claims due to the disease, while others will see a decrease stemming from shelter-in-place orders and a home-based workforce.
  • Employees will be filing workers comp claims related to the COVID-19 pandemic, but it remains unclear what proportion of the claims will be compensable. Largely, this will be determined by what is covered by the emergency legislative and regulatory action in the state and litigation. For covered industries, workers’ comp could be responsible for medical treatment, total temporary disability during quarantine and/or recovery, a settlement if the worker suffers permanent damage to the lungs or other organs from COVID-19, or worse, a death benefit.
  • In other cases, it is very much a gray area right now. The industry is adapting to a seismic shift from injury-based to disease-based claims, which are much more complex. Because of the community spread, it will be very difficult to prove that COVID-19 was contracted at work; however, when multiple co-workers become sick, a stronger case exists for employees. Some pundits suggest it will be an emotionally-charged issue and employers face tough decisions. It is expected the coverage will differ significantly across states.
  • Expect more lawsuits alleging liability for a worker’s acquisition of COVID-19 in the workplace. Recently, a wrongful death suit was filed against Walmart in Illinois by the family of an employee who died of COVID-19, alleging that the company failed to adequately clean the facility, hired new workers without adequately screening for COVID-19, and failed to follow relevant guidelines for maintaining a safe workplace.
  • The duration of open claims for injured workers is rising. Access to care is limited as the medical system is overtaxed with seriously ill COVD-19 patients and, when available, injured workers are unwilling to get treatment they need because of COVID-19 risks. Modified work is unavailable in many industries and in wage loss states indemnity benefits often cannot be stopped without a return to work. The adjudication of work comp cases is on hold in many states. The longer the delay goes on, the more likely the injured worker’s treatment is to get off track, raising the cost of the claim.The quick ramping up of telemedicine has helped, but not all workers comp injuries are appropriate for telemedicine.
  • The interaction of leave and unpaid leave claims instituted by employers responding to voluntary or government-mandated programs and workers’ comp should be examined. Should an injured employee forgo workers’ compensation and instead collect benefits under one of the new federally funded programs related to COVID-19?
  • The dramatic increase in the number of people working from home (WFH) in response to the outbreak creates additional challenges. There is very little case law regarding what constitutes a compensable claim when working at home.Employers had little time for home assessments and increased ergonomic training. As a result, employers may see a spike in common ergonomic injuries such as carpal tunnel syndrome, tendinitis, lower back injuries and more.

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

Things you should know:

State news: Coronvirus resources

All states

  • Most states have dedicated webpages on the coronavirus at their statename.gov website with links for businesses
  • The National Conference of State Legislature’s website has a list of passed and pending legislation by state
  • For updates to Workers’ Comp information, visit your state’s Workers’ Compensation website

California

Florida

Georgia

Illinois

Indiana

Massachusetts

Michigan

Minnesota

Missouri

Nebraska

New York

North Carolina

Pennsylvania

Tennessee

Virginia

Wisconsin

 

Regulatory relief for commercial drivers to combat COVID-19

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has issued a national emergency declaration to provide hours-of-service (HOS) regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak. This declaration is believed to be the first time the agency has issued nationwide relief and follows President Trump’s issuing of a national emergency declaration in response to the virus.

Department of Transportation issues notice related to CBD products

CBD products may have higher levels of tetrahydrocannabinol, or THC – the main psychoactive ingredient in marijuana – than the Department of Transportation allows in a non-controlled substance, the agency cautions in a Feb. 18 policy and compliance notice, adding that CBD use is not a “legitimate medical explanation” for a safety-sensitive employee who tests positive for marijuana.

Opioid use in construction: CPWR issues report, launches awareness training

The Center for Construction Research and Training (CPWR) has launched a beta version of a training program aimed at combating the opioid crisis in construction. Intended for use by experienced instructors and developed in conjunction with North America’s Building Trades Unions, the program comprises six sections and covers topics such as the opioid epidemic, prevention and harm reduction, and treatment and recovery.

Feb. 27 webinar from CPWR provided an overview of a recent report, and highlighted available resources and efforts to help mitigate the effect of opioids on the industry.

Helpful guide for choosing slip-resistant footwear

To assist in the selection and purchase of slip-resistant footwear for the workplace, Canadian research organization IRSST has published a free online guide.

Federal agencies launch website on school safety and security

The Department of Education, together with the departments of Health and Human Services, Justice, and Homeland Security, has launched a new website it calls a “one-stop shop of resources” for K-12 teachers, administrators, parents and law enforcement to identify, prepare for, respond to and mitigate school safety threats.

NIOSH launches online inspection tool for mast climbers

A new online tool from NIOSH is designed to guide users through daily pre-shift inspections of mast climbing work platforms and help identify common hazards associated with the equipment.

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

Legal Corner

Workers’ Compensation

$2.8 million award for emotional and financial damages upheld – California

In Reynaud v. Technicolor Creative Services USA Inc., an appellate court upheld a $2.8 million award to a United Kingdom citizen for emotional and financial damages related to delays in processing a green card application, finding the claims were not barred under the workers’ comp act. The company had arranged and sponsored a series of temporary work visas for the employee which his family also used to come to the U.S. In 2013, the employee asked the company to sponsor him for a green card and the company delayed and was very slow to implement the requirements.

The company told him that he would no longer remain employed after his visa expired in May 2016 and the employee and his family returned to England. Unable to find work, he developed depression and his wife sought counseling for depression and anxiety. The employee sued the company for negligence, alleging that it breached its assumed duty of due care “by failing to initiate the green card process.” A jury awarded $2.8 million to the couple.

The company argued it was protected by the exclusive remedy of the workers’ comp act, but the court found that the injuries were not caused by job-related duties or responsibilities, therefore the workers’ compensation law was inapplicable.

Truck driver is employee and cannot file personal injury claim – Georgia

In Estes v. G&W Carriers LLC, a married couple rotated driving responsibilities on their trips. The wife was injured while in the sleeping compartment when her husband was driving and rolled the truck.She filed a personal injury claim against the company. The company argued that the suit was barred by the exclusive remedy provision of workers’ comp and the court agreed.

While the wife argued she was an independent contractor because the company did not mandate a specific route be taken and that she could decline loads, the court found that the company had the right to control the time, manner and method of executing the work. It was the right to control, not necessarily the actual level of control, that governed the decision.

Widow can pursue tort claim against farm and forklift company, but not employer – Georgia

In Mullinax v. Pilgrim’s Pride Corp., the Court of Appeals reversed a trial court’s decision and allowed a tort case to proceed against two companies. The worker was a truck driver who was at a farm to transport chickens for processing by Pilgrim’s Pride Corp. A forklift operator employed by Rising Inc., which was contracted by Pilgrim’s to catch chickens and load them onto the trucks, left the forklift running when he went to the bathroom, and a co-worker of the truck driver, who was not authorized to drive a forklift, got into the forklift and ran over him.

The court upheld the dismissal of the case against Pilgrim’s, but allowed it to proceed against the owner of the farm and Rising as a jury could conclude that they had breached their duty of care.

Going and Coming rule clarified – Michigan

In Smith v. Chrysler Grp., LLC, an auditor was injured in a car accident while driving from home in his personal vehicle to a manufacturing plant owned by his employer. The employer reimbursed the auditor for his travel expenses. In reversing a decision of the Appellate Commission, a state appellate court found the auditor’s travel was an integral part of his work duties within the course and scope of the employment.

It noted while generally the going and coming rule prohibits workers’ comp benefits, there are exceptions. Each exception should be examined on its own merits and not as factors to be weighed. The situation met two exceptions: the employee was on a special mission for his employer and the employer paid for or furnished employee transportation as part of the employment contract.

High court denies benefits for school teacher – Missouri

In Annayeva v. Special Administrative Board of the Transitional School District of the City of St. Louis, a teacher slipped and fell inside the main entrance of the school, while carrying a bag of school-related papers. A security guard witnessed the fall. Although initially the teacher indicated she did not know the cause of the fall, after questioning by her attorney, she claimed the floor was covered with ice, dirt, and moisture.

The Commission did not find her testimony credible and denied the claim, but an appeals court overturned and the case made its way to the Supreme Court. The court found her not credible, that the accident did not involve a risk greater than any other and, therefore, was not compensable.

“Post-injury misconduct” does not include absence from the workplace – Missouri

In Hicks v. State of Missouri, an injured correctional officer was awarded temporary total disability (TTD) benefits after being terminated for unexcused absences. The employee injured his arm and shoulder during a training program and did not initially report the injury, but when an inmate asked what was wrong with his “wing”, he felt vulnerable and reported it. He had surgery and was eventually released for full duty, but informed his supervisor he was a risk to himself and others and requested light duty.

There was no light duty and the prison denied a request for a second medical decision. He stopped working after five days and was terminated for unexcused absences. He obtained another medical opinion, which suggested further treatment was needed. The prison authorized further treatment and additional surgeries were performed and two years later he was found capable of full duty without restrictions.

While the prison contested his claim for TTD because he was terminated for “post-injury misconduct,” the court noted the statute says the phrase “‘post-injury misconduct” does not include absence from the workplace due to an injury unless the employee is capable of working with restrictions and, therefore, his absences were attributable to his injury.

Drivers for Postmates are employees – New York

The Court of Appeals recently ruled that drivers for online food delivery service Postmates Inc. were employees eligible for unemployment insurance. The ruling noted, “Postmates has complete control over the means by which it obtains customers, how the customer is connected to the delivery person, and whether and how its couriers are compensated.”

Injured worker must be weaned from high dose of opioids – New York

In Matter of Forte v. Muccini, an automotive repair shop employee injured his back and received permanent partial disability. After undergoing surgery in 2005, he continued to receive opioids for over ten years and developed a tolerance to high dosages. The employer’s carrier sought an order directing that he be weaned from the opioid medications based upon the medical opinion of an IME. However, the employee’s physician warned that weaning him could result in increased blood pressure and other medical problems and that the employee was experiencing high levels of pain and following his own tapering regiment.

The Workers’ Compensation Board ruled that he should be weaned per the program developed by the IME. An appellate court upheld the ruling, noting it was for the Board to resolve the conflict in medical opinion and it had done so.

Workers’ Compensation Board will reopen SLU/Non SLU decisions after landmark court decisions – New York

Earlier this year, the Supreme Court’s 3rd Department, which handles workers’ compensation appeals, issued rulings in Saputo v. Newsday, Fernandez v. New York University Benefits, and Arias v. City of New York, which found that the Workers’ Compensation Board failed to abide by a 2018 decision, Taher v. Yiota Taxi. The ruling found that some workers were entitled to simultaneous schedule loss of use (SLU) and non-schedule loss (Non-SLU) classifications.

The Board had a policy that barred a worker, who had received benefits for a Non-SLU and was back at work at regular wages, from receiving SLU benefits. If the Board issued a prior decision contrary to the newly issued court decisions, the Board will reopen the cases upon request as stated in this bulletin.

Settlement of claim nixes civil action of assaulted residential counselor – Pennsylvania

In Grabowski v. Carelink Community Support Services Inc., the Superior Court upheld the dismissal of a worker’s civil action against her employer seeking damages for injuries from an assault by a patient at a residential treatment facility. She received over $75,000 in workers’ compensation and then entered into a compromise and release agreement and received a $40,000 lump sum from the employer.

She then filed a negligence action. However, the court noted the employer would liable only if she was attacked for purely personal reasons that were not related to her employment. While the passive receipt of workers’ compensation benefits does not bar an employee from suing the employer for negligence, she actively pursued and agreed to a settlement. In effect, this constituted an admission that the incident occurred in the course and scope of her employment.

Spider bite compensable – Virginia

In James Madison Univ. v. Housden, an appeals court found that a bite by a brown recluse spider was compensable. Noting that the employee had previously reported spiders in the building and that construction work in a boiler room located below her office may have disturbed insects and spiders, the court found she faced a greater risk than that experienced in ordinary life.

Failure to wear seatbelt nixes compensation – Virginia

In Mizelle v. Holiday Ice, an appellate court confirmed the decision of the Workers’ Compensation Commission that a truck driver’s conduct – not wearing a seatbelt – was considered “willful” under state case law and, therefore, compensation was barred. The “willful misconduct” provision in the state’s comp law states that an employer can prevail when asserting a defense of willful misconduct if the employer proves that the safety rule, or other duty, was reasonable, was known to the employee, was for the employee’s benefit, and that the employee “intentionally undertook the forbidden act.”

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