Legal Corner

ADA
Ability to delegate does not remove essential functions of job

In Tonyan v. Dunham’s Athleisure Corp., a store manager injured her shoulder and was fired when she could no longer perform some of the essential functions of her job, including lifting and reaching. She argued that such tasks only took up about 30% of the workday and could be delegated. However, the Seventh Circuit court disagreed, noting that the essential functions of the job were clearly and specifically defined in the job description and the ability to delegate was always available, but it does not mean it is appropriate to do so.

Failed case of fired worker suffering from Tourette’s syndrome reinstated

The 1st U.S. Circuit Court of Appeals in Boston in Brian Bell v. O’Reilly Auto Enterprises LLC, d/b/a/ O’Reilly Auto Parts, reinstated litigation filed by a fired auto parts store manager who suffers from Tourette’s syndrome, citing incorrect instructions given by the judge to the jury. The judge’s instructions in the case “required an employee to demonstrate that he could not perform the essential functions of his job without accommodation,” and may have favored the employer. The correct standard to prove a failure to accommodate claim is an employee must show that he is handicapped within the ADA’s meaning, he can perform the job’s essential functions with or without reasonable accommodation, and the employer knew of the disability but declined to reasonably accommodate it upon request.

Workers’ Compensation
Uber and Lyft get reprieve from appeals court – California

In early August, a lower court ordered Uber Technologies Inc. and Lyft Inc. to treat their drivers as employees. The companies successfully sought the intervention of the First District Court of Appeal in San Francisco to block the injunction order, giving them a reprieve at least for a few months. There is a ballot initiative in November that will let the app-based companies continue to treat drivers as independent contractors, thus making them exempt from state laws mandating overtime, sick leave, and expense reimbursement, but providing “alternative benefits.”

$11.25M workers’ comp settlement – California

A 35-year-old construction worker received what could be a record-breaking workers’ comp settlement of $11.25M. He suffered a traumatic brain injury and related complications when he fell four stories through an elevator shaft at a construction site in Irvine.

Workers’ Comp is the exclusive remedy for couple severely injured while assisting law enforcement officials – California

In Gund v. County of Trinity, a middle-aged couple was asked by the Sheriff’s office, which was nearly 100 miles away, to check on a woman who lived nearby in the remote area and had called 911. The reason for the call was unknown and it was suggested it could be related to an oncoming storm, although attempts to call back the woman failed.

When they arrived, they were attacked by a man who had killed the woman and her boyfriend and sustained serious injuries. In a 5-2 decision, the Supreme Court affirmed a trial court ruling that workers’ comp was their exclusive remedy since they were engaged in law enforcement activities at the time. California laws treat members of the public who engage in “active law enforcement service” at a peace officer’s request as eligible for workers’ compensation benefits.

McDonald’s sues insurer for coverage while fighting employee class action suit over unsafe working practices during COVID-19 – Illinois

In McDonald’s Corp. v. Austin Mut. Ins. Co., McDonald’s Corp. is suing its insurer for coverage of its legal fees while defending an employee class-action suit, which seeks to force the company to adopt certain safety measures, including requiring face coverings and offering hand sanitizer, during the pandemic.

The Chicago-based fast food chain and two of its franchise owners filed the action against Austin Mutual Insurance Co. in federal court, seeking a judgment that the insurer has a contractual obligation to defend them in the worker safety litigation. According to the complaint, McDonald’s has already incurred more than $1.5 million in attorney’s fees, costs, and expenses and the franchise owners have incurred about $116,000.

Certified mail not required for policy cancellation – Massachusetts

In Espinal’s Case, Nos. 19-P-1483 and 19-P-1484, the Massachusetts Appeals Board overturned a ruling that an insurance carrier had not canceled an assigned risk policy because it was sent by first-class mail, not certified mail. Cruz Abatement & Contracting Services LLC workers’ comp coverage was canceled because of non-payment and it received an assigned risk workers’ compensation policy from ACE American Insurance Co. After issuance and cancellation for nonpayment of two policies by ACE, the company was again assigned to ACE for Feb. 26, 2016, until Feb. 26, 2017, and again did not pay the invoice.

ACE sent a notice of cancellation to the address on the application by first class mail and received a certificate of mailing receipt from the PO. Cruz was hired to be a subcontractor on a demolition job and two workers were injured. Massachusetts General Law Section 187C governs insurance cancellations and authorizes notice by first class mail without requiring proof of receipt of notice by the insured. Section 65B, which governs the cancellation of assigned risk policies, has an additional provision that the employers have an opportunity to file objections with the Department of Industrial Accidents within 10 days after receipt of notice of cancellation. A judge and the Industrial Accident Reviewing Board interpreted this to mean it must be sent by certified mail return receipt requested, but the Appeals Board overturned, noting the statute did not include this requirement.

Employer not solely liable for PTD benefits – Missouri

In Williams v. City of Jennings, a correctional officer was attacked by an inmate and was awarded permanent total disability (PTD) based on her depression and anxiety arising from the work injuries. At the hearing, she and medical experts acknowledged that she had a pre-existing condition of panic and anxiety attacks.

The Court of Appeals noted that the decision should have addressed the fact that the pre-existing psychological conditions were partly responsible for the way she responded to the work injury and, therefore, contributed to her permanent total disability. The Second Injury Fund compensates workers who are permanently and totally disabled by a combination of a work injury with a pre-existing disability and the employer should not have been held solely responsible for her benefits.

Appellate court refuses to hear controversial case on benefits to worker who died of natural causes – New York

An appellate court refused to hear an appeal in Kanye Green v. Dutchess County Board of Cooperative Education Services. The decision by the Workers’ Compensation Board was controversial because it not only reversed precedent about continuing benefits to the family of an injured worker who died of natural causes but also did not direct that benefits be paid when the decision was appealed. The worker died of a heart problem with less than a year remaining on his weekly benefits, which his son sought.

A previous court decision found that nonschedule loss of wage-earning capacity claims was not the same as schedule losses and wage-replacement benefits should not continue because a dead worker has no wage-earning capacity. It’s unknown if the employer will appeal.

Comp carrier can’t recover benefits from widow who sued – North Carolina

In Walker v. K&W Cafeterias, a worker suffered fatal injuries in a work-related auto accident and his widow was awarded medical and death benefits of over $333,000. The worker was employed by a North Carolina company and was driving a company car, but the accident occurred in South Carolina. Later, the widow filed a wrongful death case in South Carolina seeking damages from the driver of the motor vehicle who was at fault in the accident and was awarded $962,500 in a settlement.

The comp insurer filed a subrogation lien, which was approved by the Workers’ Compensation Commission and the Court of Appeals but overturned by the Supreme Court. The court found that while the commercial policy was purchased in North Carolina, it included an endorsement to conform with South Carolina insurance laws since the car was registered, garaged, and driven in South Carolina. South Carolina insurance law bars subrogation of UIM proceeds.

Non-OSHA compliant tractor seat insufficient for wrongful death suit – North Carolina

A court of appeals found that buying a non-OSHA compliant tractor seat without a seatbelt from eBay didn’t rise to the level of intentional misconduct and, therefore, the estate could not sue the company under tort law. In Hidalgo v. Erosion Control Services Inc., the worker was ejected from a tractor on a construction site and fatally injured when it rolled on top of him.

The estate alleged that the company was negligent – the seat on the tractor was replaced with one purchased on eBay that didn’t have a seatbelt because the manufacturer was unable to supply one. Furthermore, OSHA cited the company for four workplace safety violations related to the seatbelt and safety measures for the tractor. However, the company argued that the worker was operating the tractor outside of the designated project area where no work was going on.

While a trial court found for the estate, the appeals court found the seat created an unsafe condition but it did not make it substantially certain that death or serious injury would occur. In overturning the decision, the court noted there was no pattern of OSHA violations regarding tractor safety, there was no work going on in the area it occurred, and the seat had been used for more than a year without incident.

Court clarifies total disability benefits reinstatement post-Protz – Pennsylvania

In White vs. WCAB, the Commonwealth Court ruled that an injured worker is entitled to reinstatement of her total disability benefits retroactive to the date she filed her petition, not the date upon which her benefits were modified. Based on the Commonwealth Court’s decision in Protz v. WCAB, the injured worker filed a reinstatement petition seeking to nullify her IRE which had changed her condition from totally to partially disabled.

A WCJ approved the petition and the Appeal Board modified the ruling, noting the reinstatement was effective on the date she filed her reinstatement petition in October 2015, not the date of the change in her disability status. The Commonwealth Court agreed.

Truck driver was not statutory employee and can proceed with tort – Pennsylvania

In Dobransky v. EQT Production Co., a truck driver delivered a load of barite, which is a weighting agent to increase the density of industrial fluids, to a well site when a cap of a storage tank blew off and released barite into his face. He filed suit against EQT Production Co. and Halliburton Energy Services Inc. that owned or maintained the tanks. The companies sought summary judgment, citing workers comp’s exclusive remedy.

A trial judge agreed, but the Superior Court vacated the decision, noting a contractor can be deemed the statutory employer of a subcontractor’s employee only if the requirements of Section 302(a)(2) of the Workers’ Compensation Act are met. The contracted work must include removal, excavation, or drilling for minerals. In this case, the contract was to transport and unload materials.

Comp denied for Pittsburgh prosecutors who contracted COVID-19 – Pennsylvania

Two prosecutors who believe they contracted COVID-19 at the Allegheny County Courthouse where a court reporter tested positive, have had their claims denied. Both prosecutors spent time in the hospital and one died. The deceased prosecutor believed he contracted the virus from his colleague with whom he shared a small office and had filed a complaint with OSHA over how the notification of cases at the courthouse was being managed. The claims were denied because they were not a work-related injury. An appeal is expected.

Meaningful return to work must exist for cap on PPD Benefits – Tennessee

In Coates v. Tyson Foods, a supervisor who also performed physical work developed tennis elbow in both elbows and needed surgery. Following surgery, he took FMLA leave, which was extended, but he was unable to return to work when it ended. The company filled his position and told him when he could return without restrictions he’d have to start at the bottom again.

He left and found work as a farmhand and filed for comp benefits, and then sued. A trial court determined that because the supervisor didn’t have a meaningful return to work, he was owed temporary total disability and PPD benefits and his benefits were not subject to a statutory 1.5 multiplier cap. The Supreme Court agreed noting that the company didn’t make a reasonable effort to return the supervisor to his job.

Disagreement with IME physician’s opinion not sufficient to rebut presumption of correctness – Tennessee

In Rodgers v. Rent-A-Center East, Inc., an employee was injured when he was rear-ended in an automobile accident while running errands for the store manager. After he received treatment for back pain, two doctors referred by the employer concurred that he had a 0% permanent impairment rating. He presented conflicting reports from his physicians who assigned a 7% impairment rating and the employer requested an independent medical evaluation from the Medical Impairment Registry.The IME physician assigned a 2% impairment rating.

A bench trial judge agreed with his personal physicians and assigned a permanent impairment of 7% with a multiplier of 3 because there was no meaningful return to work. However, the Supreme Court noted under state law, a MIR physician’s rating is presumed to be accurate and the employee did not meet high burden of proof to rebut the presumption of correctness.

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

Things you should know

COVID-19 pandemic information

  • Worker advocacy groups create guidance for apparel and textile workersThe Worker Rights Consortium and the Maquiladora Health and Safety Support Network have issued a set of guidelines intended to protect apparel and textile workers during the COVID-19 pandemic.
  • EPA issues respirator guidance for agricultural pesticide handlersThe Environmental Protection Agency (EPA) has issued temporary guidance intended to help protect workers who handle agricultural pesticides against exposure to COVID-19.
  • ‘Extremely hazardous’: Alert warns against using ethylene oxide to sterilize masks, respiratorsEthylene oxide should not be used to sterilize filtering facepiece respirators for reuse because “this extremely hazardous toxic chemical poses a severe risk to human health,” the Washington State Department of Labor & Industries warns in a new alert.

 

NLRB: Employers can ban cellphone use if…

Adding to an earlier decision related to driving and cellphone use, The National Labor Relations Board (NLRB) recently decided that it is legal for employers to ban the use of cellphones by employees when the restrictions are based on safety and security concerns. The new case involved Cott Beverages Inc., an American-Canadian beverage and food service company, which prohibits cell phones on the shop floor and work stations. While The Board’s May 20 decision recognized that this rule would potentially infringe on employees’ ability to make calls or recordings about workplace issues, it is outweighed by the company’s legitimate business interests.

 

Contracting trades lead in opioid prescriptions in workers comp

Although opioid use has declined in the contracting industry, workers compensation claims still have higher opioid usage and almost double the costs when compared with other industry groups, according to a report, released by the National Council on Compensation Insurance. The average cost per claim in construction is $12,760, compared to $5,608 in all other industry segments.

 

WCRI state data on opioid regulations

As of 2020 most states have regulations on prescribing and managing opioids, but only 15 states have drug formularies and only 17 states definitively include “mental health services” for “drug rehabilitation” in workers comp statute, according to a report by the Workers’ Compensation Research Institute (WCRI).

 

CMS to authorize MSPRP users to view and print conditional payment correspondence

The Centers for Medicare and Medicaid Services (CMS) has issued a notice that starting July 13, 2020, authorized Medicare Secondary Payer Recovery Portal (MSPRP) users will be allowed to view and print CMS conditional payment correspondence.

 

Marijuana tops list of substances identified in CMV drivers’ failed drug tests: FMCSA

The first report to use data from the Federal Motor Carrier Safety Administration’s new Drug and Alcohol Clearinghouse shows that, from the database’s Sept. 28 launch through May, marijuana was the most common substance found in positive drug and alcohol tests among commercial motor vehicle drivers. According to the report, 19,849 CMV drivers had at least one violation, including 10,388 positive tests for marijuana. and were unable to operate until completing the return-to-duty process.

 

Preparing chemical facilities for extreme weather events: CSB releases safety alert, video

The Chemical Safety Board has published a safety alert and video intended to help hazardous chemical facilities prepare for hurricanes and other extreme weather events.

 

State News

California

  • Became the first state to pass a regulation requiring insurance companies to reduce premiums paid by employers for workers compensation insurance, effective July 1.
  • Adopts first in the nation workplace safety standard protecting nighttime agricultural workers.

Florida

  • Policyholders of the Florida Workers Compensation Joint Underwriting Association, a self-funding plan for employers unable to purchase insurance in the voluntary market, will be eligible for the premium refund, totaling $27.6 million.

Illinois

  • On June 5, Gov. J.B. Pritzker signed H.B. 2455, which creates a rebuttable presumption for essential workers, including first responders, who presumably contracted COVID-19.
  • Workers’ Compensation Commission has posted dial-in numbers, locations, and times for July arbitration proceedings.

Massachusetts

  • The Department of Industrial Accidents will no longer accept certain forms through the mail – Form 105, an agreement to extend the 180-day payment period, and Form 113, agreement to pay compensation. The forms must be filed by email and can be sent to DIA-Form105conciliation@mass.gov and to DIA-Form113conciliation@mass.gov.

Michigan

  • Gov. Gretchen Whitmer issued an executive order on June 17 that provides a rebuttable presumption for certain workers who believe they contracted COVID-19 on the job.

Tennessee

  • Two bills that recently passed the General Assembly are summarized on the Bureau of Workers’ Compensation website. One bill extends the deadline for an injured employee to file a claim for increased benefits. The other adds requirements for out-of-state construction companies and strengthens enforcement against uninsured businesses. As of this publication, the laws have not been signed by the governor.

Virginia

  • The Safety and Health Codes Board is creating an emergency temporary standard to protect employees from the spread of COVID-19. Employers who fail to comply with the standard may be fined $13,047 for a single violation, $130,463 for willful and repeat violations, and $13,047 per day for failing to abate the risk. Employers may receive reduced penalties based on the size of their workforce, but the minimum penalty is $600. It is slated to take effect July 15.
  • The Insurance Commission posted new rules that will help implement HB 46 beginning July 1. Under the new law, employers are required to notify workers within 30 days if they intend to accept the claim, deny the claim, or if they will be seeking further information. Additionally, under the law, when the employer denies a claim, they must provide details for the denial. Failure to meet these requirements will result in a $5,000 fine per claim.

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

Legal Corner

Workers’ Compensation
Contractor cannot be sued for death of subcontractor’s employee – California

In Sherry Horne et al. v. Ahern Rentals, Inc., an employee of 24-Hour Tire Service Inc. was crushed to death while changing a tire on a forklift. His family received workers’ comp death benefits and sued Ahern Rentals, alleging that it had contributed to the collapse of the forklift by failing to provide a stable and level surface, allowing the tire change to proceed with the forklift’s boom raised, and failure to train employees.

However, an appeals court noted that to be liable the contractor had to actively direct the contractor or contractor’s employee to do the work in a particular way. It noted that “passively permitting an unsafe condition does not amount to actively contributing to how the job is done.”

85-year-old precedent upended by Supreme Court – Georgia

In Frett v. State Farm Employee Workers’ Compensation, an insurance claims associate slipped and fell in the break room while taking her mandatory lunch break. An appeals court had found that the injury was not compensable because it took place on her lunch break, and therefore, did not arise out of her employment, but out of a purely personal matter. This followed the reasoning of a 1935 decision regarding “off-the-clock” injuries.

However, the Supreme Court found that she was injured on the premises of her employer, in the middle of her workday, while preparing to eat lunch. This activity, being reasonably necessary to sustain her comfort at work was, “incidental to her employment and is not beyond the scope of compensability under the Act.” Acknowledging the similarity to the 1935 “Farr” case, the court said the reasoning of Farr was unsound, and it was “completely untethered from the analytical framework consistently employed by this Court in workers’ compensation cases for nearly a century.”

One time change of physician rule bumped to Supreme Court – Florida

The First District Court of Appeal, in City of Bartow v. Flores, ruled that under statute 440.13(2)(f), which allows for a one-time change of physician, it isn’t enough for an employer/carrier (E/C) to provide the name of the alternate physician within five days as specified in the statute. The court held, that it must supply access to the physician by setting up an appointment and inform the injured worker of that date.

In this case, the worker was not notified of an appointment for 56 days. Therefore, the court determined he could be treated by the physician of his choice.

Noting the importance of this decision, the appellate court certified to the Supreme Court the question of whether an E/C’s duty to furnish timely medical treatment under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician for treatment, or whether the E/C must actually provide the injured worker an appointment date with the authorized alternate physician.

Judge rules on class-action lawsuit of McDonald’s employees related to COVID-19 – Illinois

In Massey v. McDonald’s Corp, Chicago-area McDonald’s workers sought to require the company and the franchises named in the complaint to comply with health guidance and provide proper protective equipment for workers. A judge found that two of the franchises named in the suit failed to comply with the Governor’s Executive Order on mask requirements and failed to properly train workers on social distancing.

Although the judge found the franchisees provided sufficient masks, gloves and sanitizer to workers and adequately monitored virus cases and symptoms among employees, she ordered the store owners to enforce all mask-wearing policies when employees are not six feet apart and to train workers on social distancing.

Out-of-state worker cannot file tort suit in Missouri – Missouri

In Hill v. Freedman, an employee of the University of Kansas School of Law was riding with her supervisor to a work-related event in Missouri. During the drive an argument ensued and the supervisor alleged slammed the vehicle into a concrete barrier when he parked the car. She received workers comp benefits for her injuries through the Kansas system.

A few years later she sued the supervisor in a Missouri state court. The court of appeals noted Missouri follows the law of the state where a worker has been compensated, so Kansas law governs all the issues related to her injury. Under Kansas law, a worker who recovers benefits for an on-the-job injury from an employer cannot maintain a civil action for damages against a fellow employee.

Attorney fee awards clarified – Nebraska

In Sellers v. Reefer Systems, Inc., the Supreme Court ruled that an appellate decision erred in denying attorney fees to an injured worker because the affidavit did not provide details of the fee agreement. State statute 48-125(4)(b) states that reasonable attorney fees will be allowed to the employee by the appellate court if the employer appeals a workers compensation award and fails to obtain a reduction in the awarded amount.

The court determined that reasonable attorney fees do not depend on the terms of the fee agreement, but on the extent and value of the services provided. In this case, the affidavit contained sufficient justification to make a meaningful determination of the reasonable attorney fees to which the employee was entitled.

Son’s death does not meet exception of workers compensation – New York

In Smith v. Park, a 14-year-old boy who was working illegally died while operating a skid steer. The farm accepted the injury claim and was directed by the workers compensation board to pay increased death benefits as a result of the illegal employment. The mother filed a lawsuit against the farm claiming the owner engaged in criminal conduct that was related to her son’s death. The court found that although the owner may have been negligent in his supervision, there was no evidence that he acted out of “a willful intent to harm.”

Reckless driving not enough to nix claim – New York

In McGee v. Johnson Equip. Sales & Serv., a truck driver was injured in a rollover crash as she exited the highway at a speed of 67 mph in a 35-mph speed limit zone. The carrier and employer contented that she willfully intended to injure herself. It also contended that there was cocaine in her system, but there was no evidence of the level of cocaine or when it was ingested.

While the court noted that benefits will not be awarded for deliberate injuries, there is a presumption that a worker is entitled to benefits. It can be overcome by substantial evidence, but the employer did not meet the burden of proof.

Decision to be stay-at-home Dad nixes benefits – Pennsylvania

In Respironics v. Workers’ Comp. Appeal Bd.(Mika), the Commonwealth Court upheld a WCJ ruling that had been reversed by the WCAB suspending the employee’s wage loss benefits when he decided to stay at home and care for his children. He resigned from his modified duty position and the employer argued he voluntarily left the workforce.

The worker needed to show that his loss of earning power was due to his injury and not his personal decision to remain out of work. However, he acknowledged that his decision was in part a financial one – his wife had greater earning power and child care expenses could be avoided. The court found that his testimony was enough to establish he had left the job market and benefits had to be suspended after that date.

Irritable bowel syndrome compensable – Virginia

In an unpublished opinion, Farrish of Fairfax and VADA Group Self-Insurance Association v. Faszcza, the Court of Appeals unanimously affirmed a Workers Compensation Commission decision granting workers compensation benefits to a worker who contended he developed Crohn’s colitis, a type of inflammatory bowel disease (“IBD”), as a result of taking medications prescribed for a work-related foot infection. He suffered from diabetic neuropathy and, at the time of his injury, did not realize he had stepped on an automotive fastener and injured his foot.

His injury became infected and required prolonged antibiotic use, which according to a physician, contributed to his IBD. An appellate court affirmed the Commission’s decision of compensability, noting that there was credible evidence supporting the assertion that the IBD was a result of the puncture wound.

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

OSHA Watch 2

Guidance to ensure uniform enforcement of Silica Standards

compliance directive was issued, designed to ensure uniformity in inspection and enforcement procedures when addressing respirable crystalline silica exposures in general industry, maritime, and construction. The directive provides compliance safety and health officers with guidance on how to enforce the silica standards’ requirements and provides clarity on major topics, such as alternative exposure control methods when a construction employer does not fully and properly implement Table 1, variability in sampling, multi-employer situations, and temporary workers.

Trenching webinar

A webinar on trench safety hosted by the agency and the American Society of Safety Professionals is available free online.

Recent fines and awards

Florida

  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Jensen Beach and Port St. Lucie. The contractor faces penalties totaling $199,711.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Action Roofing Services, Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at a worksite in Boca Raton, Florida. The roofing contractor faces $51,952 in penalties.
  • Two construction contractors, CMR Construction & Roofing LLC of Panama City, and Modern Construction Experts LLC of Stuart, were cited for failing to protect employees from fall hazards at a construction worksite in Panama City. The two companies face $126,169 in penalties. An employee fatally fell 84 feet while working on the roof of a hotel.
  • After receiving notice of an employee hospitalized after a trench collapse, an inspection was initiated at Florida Progress LLC, operating as Duke Energy Florida LLC. The Charlotte, North Carolina-based electric power distributor faces $53,976 in penalties for exposing employees to excavation hazards at a Zephyrhills, Florida, worksite.

Georgia

  • Norfolk Southern Railway Corp. has been ordered to reinstate and pay more than $150,000 in back wages for whistleblower violations after terminating an employee for reporting an on-the-job injury at its Atlanta facility, and also filing an alleged violation report with the Federal Railroad Administration (FRA). The company was also ordered to pay the employee $75,000 in punitive damages, $10,000 in compensatory damages, and attorney’s fees.
  • Inspected under the National Emphasis Program on Trenching and Excavation, Construction Management & Engineering Services Inc. was cited for exposing employees to excavation hazards at a Duluth worksite. The Norcross-based construction contractor faces $134,937 in penalties.

Illinois

  • Grain firm Farmers Elevator Co., Manteno, received citations for two willful and three serious violations and a fine of $205,106 after a worker died at its Grant Park facility when he fell into a grain bin. The company was placed in the Severe Violator Enforcement Program.

Nebraska

  • A federal appeals court confirmed a serious citation issued to Jacobs Field Services North America Inc. for failing to ensure “appropriate” personal protective equipment was worn by an electrician who was seriously burned. While the company argued that the work area was “deenergized” and fell under an “Electrically Safe Work Condition,” as well as unpreventable employee misconduct, the judge found the company had violated the standard requiring PPE when “there are potential electrical hazards.”

For additional information.

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

HR Tip: New EEOC guidance related to COVID-19 and family members

In recent guidance (Question D.13), the EEOC said that the Americans with Disabilities Act (ADA) does not require employers to accommodate workers who want to avoid exposing family members who are at higher risk of severe illness from COVID-19.

“The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.”

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

Controlling workers comp costs: insights from five studies

Study: 2020 workplace safety index – Liberty Mutual Holding Co. Inc.

Findings: Each year this study researches the top 10 causes of the most serious workplace injuries, those that cause employees to miss work for more than five days, and ranks the causes by their direct cost to employers, based on medical and lost-wage expense. Further, it drills down this data for eight specific industries: construction, health care and social assistance, manufacturing, professional services, retail, transportation and warehousing, hospitality and leisure, and wholesale.

Overexertion from handling objects accounted for nearly a quarter of all workplace injuries and cost employers $13.98 billion, according to the index. Falls on the same level accounted for 18% of injuries at a cost of $10.84 billion, and struck-by injuries from objects or equipment made up 10% of injuries, costing $6.12 billion.

Takeaway: This helps employers understand the top risks in the workplace to better allocate safety resources.

 

Study: Top 10 Most Dangerous Jobs of 2020 – EHS Today

Findings: This list of the top ten most dangerous jobs is based on the fatal work injury rate, which is calculated per 100,000 full-time equivalent workers. Loggers were the number one most dangerous profession followed by fishers and related fishing workers.

Takeaway: Rather than looking at the total number of workplace deaths, this study offers a closer look at exactly how often a worker dies while employed in a specific industry. It enables employers to know when the chances of a fatality are high.

 

Study: Motor Vehicle Accidents in Workers Compensation – National Council on Compensation Insurance (NCCI)

Findings: From 2011 to 2016, the frequency of all workers compensation claims decreased by 20.1 percent while claims caused by motor vehicle accidents increased by 4.9 percent. Motor vehicle accident lost-time claims continue to cost over 80% more than the average lost-time claim because such claims tend to involve severe injuries to such body parts as head, neck, and spine. The study points to the rapid expansion of smartphone use as a possible cause.

Takeaway: An effective and consistently implemented distracted driving policy is critical for any business with employees who drive as part of their job.

 

Study: Comparing Physician Services in Workers Compensation and Group Health – NCCI

Findings: Injuries cost more, much more for some conditions, when they’re covered by workers’ compensation rather than group health insurance. Overall, comp costs are about 177% of group health costs. The costs for treatment are only slightly higher than group, but the utilization (number of treatments) is significantly higher.

Takeaway: The author suggests, “Some workers’ compensation claimants and claimant attorneys may find an incentive to seek additional medical care to support wage replacement benefits over a longer healing period or to negotiate a better settlement.” Partnering with an occupation medicine provider can help control the quantity and efficiency of medical services.

 

Study: Biopsychosocial Approach to Identify and Treat At-Risk Injured Workers – One Call Care Management Inc.

Findings: A small percentage of claims (five percent) account for a disproportionate percentage (25 percent) of the costs of physical therapy and rehabilitation. In fact, the average cost associated with that top five percent is more than five times the average cost. These cases are often not identified as problematic until after a treatment plan exceeded the initial guidelines. Predictive analytics can help identify at-risk workers early in the process and lead to an intervention plan that improves outcomes.

Takeaway: Share all you legally can about an injured worker’s type of work and medical history that can help flag at-risk cases.

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

OSHA PPE requirements and COVID-19

COVID-19 has not changed an employer’s responsibilities nor the primary tenets of OSHA’s PPE Standard. Employers must begin by conducting a hazard assessment in accordance with the PPE standard (29 CFR 1910.132) to determine the PPE requirements for their unique work site. PPE should be treated as the “last line of defense” in the Hierarchy of Controls. Since elimination or replacing the hazard is unfeasible, the first line of defense is engineering controls. These are mechanical methods of separating an employee from the exposure to COVID-19, such as improved air filtration systems, increasing ventilation rates, or installing physical barriers, such as clear plastic sneeze guards.

The second line of defense is administrative controls, which include focusing on changing human behavior to reduce exposure to a hazard. Examples include asking sick employees to stay home, minimizing contact with virtual meetings, telework, making it easier for workers to stay six feet apart from each other, staggered shifts, and training workers on COVID-19 risk factors and protective behaviors. It also includes providing the resources for safe work practices such as face coverings, no-touch trash cans, hand soap, alcohol-based hand sanitizers, disinfectants, and disposable towels for cleaning work surfaces.

After considering engineering and administrative controls as well as safe work practices, employers must determine if PPE (such as gloves, gowns, surgical masks, and face shields) is necessary for employees to work safely.

In its recent Guidance on Returning to Work, OSHA reminds employers to reduce the need for PPE in light of potential equipment shortages. “If PPE is necessary to protect workers from exposure to SARS-CoV-2 during particular work tasks when other controls are insufficient or infeasible, or in the process of being implemented, employers should either consider delaying those work tasks until the risk of SARS-CoV-2 exposure subsides or utilize alternative means to accomplish business needs and provide goods and services to customers. If PPE is needed, but not available, and employers cannot identify alternative means to accomplish business needs safely, the work tasks must be discontinued.”

Special considerations related to COVID-19:

  • If temperature screening of employees and/or visitors is part of your safety program, be sure the temperature taker is trained and protected from exposure with the proper PPE.
  • Cloth face coverings are not PPE. However, they are intended to reduce the spread of potentially infectious respiratory droplets from the wearer to others. Since they are not considered PPE the employer doesn’t have to pay for them, however, it is a smart move and reassuring message to employees. OSHA has taken the position that the General Duty Clause, Section 5(a)(1), may require employers to provide such masks as they are a feasible means of abatement in a control plan. Moreover, some state and/or local governments are not only requiring employees to wear face coverings at work but are also requiring employers to provide the cloth masks.

    For more information, review OSHA’s recent Q & A on face coverings.

  • When employers require employees to wear masks, there should be specific written regulations about when they must be worn, how to care for them, what medical or other protected reasons are valid exceptions, and what are the consequences if employees decline to wear them and do not meet the exception criteria. Training also is a good idea so employees can understand they do not substitute for social distancing or other administrative controls.
  • Employers must also be aware of situations where mask wearing can make it harder to breathe and do not in themselves create a hazard. For example, the California Department of Industrial Relations, in issuing its annual summer notice to employers on heat illness prevention noted, “Employers should be aware that wearing face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating. Workers should have face coverings at all times, but they should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained.”
  • N95 masks are considered respirators and if required in the workplace are subject to significant regulatory obligations under 1910.14. However, if an employee brings their own N95 or similar filtering facemask, they should be allowed to voluntarily wear them. The only regulatory burden is to provide the employee Appendix D of 1910.134. It is recommended that other types of respirators such as half-and-full-face, tight-fitting respirators, and PAPR’s be prohibited.
  • In March and April, OSHA issued temporary enforcement memoranda on relaxing respiratory protection enforcement.
  • Some employers have opted to make gloves available to workers, particularly those in work settings where employees are frequently touching the same surfaces or objects. Gloves should cover the entire hand, up to the wrist and employees need to be instructed on the proper way to remove clothes to ensure that it does not cause contamination.

What type of PPE is best for your workplace?

OSHA’s Guidance on Preparing Workplaces for COVID-19 identifies PPE requirements based on four risk categories of worker exposure to COVID-19. Workers in the very high-risk exposure level, such as healthcare, laboratory, and morgue workers are likely to need to wear gloves, a gown, a face shield or goggles and either a face mask or a respirator. Workers who interact with known or suspected COVID-19 patients should wear a respirator. The same PPE use is recommended for workers in the high exposure risk category, including healthcare delivery and support staff, medical transport workers, and mortuary worker.

The moderate exposure risk category includes those that require frequent and/or close contact with the general public in areas with community transmission of COVID-19, such as teachers, retail outlets, restaurants, and other public businesses. OSHA recommends that workers in this category wear some combination of gloves, a mask, gown and/or a face shield or goggles based on the level of exposure. For those in the low exposure risk category, such as teleworkers, OSHA does not recommend PPE.

OSHA has also published guidance for many specific industries that offers recommendations for engineering and administrative controls as well as PPE. The PPE Safety and Health Topics page provides additional information about PPE selection, provision, use, and other related topics.

Takeaway:

Employers can help protect themselves from OSHA fines and enhance their return-to-work protocols by:

  • Updating their Injury and Illness Prevention Program to align with Fed and State OSHA guidance and any specific industry guidance.
  • Implementing the generally applicable infection prevention control measures identified above.
  • Maintaining any records on safety and health measures implemented.
  • Documenting all training provided to employees.
  • Recognize that new guidance is being issued at the federal and state level almost daily and stay up to date.

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

OSHA Watch 1

New resources – COVID-19

 

California becomes first state to adopt standard to protect agricultural employees working at night

A new workplace safety standard to protect agricultural employees who work at night became effective July 1 and will be enforced by Cal/OSHA. It’s designed to protect agricultural workers who harvest, operate vehicles, and do other jobs between sunset and sunrise.

Judge rejects AFL-CIO lawsuit calling for emergency temporary standard on infectious disease

The U.S. Court of Appeals for the District of Columbia Circuit on June 11 rejected an AFL-CIO lawsuit calling on the Department of Labor and OSHA to issue an emergency temporary standard on infectious diseases.

Virginia is creating COVID-19 emergency workplace standard

The state’s Safety and Health Codes Board voted June 24 to create an emergency temporary standard, which essentially requires employers to follow CDC guidelines or face fines. The proposed standards are expected to go into effect July 15.

DOL Inspector General review of OSHA actions during pandemic

Faced with mounting criticism about the agency’s response to the pandemic, the Department of Labor Office of the Inspector General issued a three-page report on June 17. The report notes responding to the “significant increase” in worker and whistleblower complaints during the COVID-19 pandemic, along with completing inspections and investigations, all in a timely manner, are among the challenges facing OSHA and the Mine Safety and Health Administration, given the limited resources available. OSHA has six months to issue a citation and proposed penalties.

Employers’ injury, illness data is public information

Data from Form 300A is not confidential and there are no restrictions on its dissemination according to a court ruling from the U.S. District Court for the Northern District of California. The ruling stemmed from a lawsuit made by the nonprofit news organization Center for Investigative Reporting under the Freedom of Information Act, seeking information from OSHA Forms 300A, 300 and 301 forms. The agency no longer collects information from Forms 300 and 301.

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

Early data guides employers on three key workers’ comp issues and COVID-19

Background: Divergent pressures on premiums

There’s been much speculation that workers’ comp will drive significant losses in the property/casualty industry as a result of COVID-19. On the one hand, there is the explosion of presumption laws that discard the basic tenet of workers’ comp that employees must prove they were exposed to the virus during the course of their employment and on the other hand, there are plummeting premiums driven by business closures and dramatic declines in payrolls.

In June, Arkansas, Illinois, and Michigan joined 13 other states in extending COVID-19 presumptive coverage and 12 other states are considering new laws or executive orders. The laws vary significantly, covering different groups of workers and some are rebuttable while others are conclusive. Some are retroactive, while others go into effect in conjunction with the order or law. Employers should keep up-to-date with these rules as they continue to evolve. The National Council on Compensation Insurance (NCCI) has a helpful tracker.

How this impacts premium will also depend on the state Rating Bureau’s position on including or excluding COVID-10 workers’ compensation claims on the experience mod. To date, the following states have adopted rules that exclude COVID-19 claims from the experience mod: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee,Vermont, Virginia, West Virginia, and Wisconsin.

Also, the costs of many existing claims are rising. The restrictions on nonemergency medical care have meant longer recovery periods and delayed surgeries for injured employees. Delays in adjudication have also extended the life of claims.

Countering this upward pressure on premiums is the dramatic decline in payrolls from furloughs, layoffs, reclassifications, and exclusions of money paid to employees who are not working. PPP dollars ran out at the end of June and employers who had to keep workers on the payroll to qualify, won’t have to keep them “employed.”

According to CalMatters, only 1,098 workers comp claims were filed in California in May, compared with more than 50,000 in January. Although some states have urged insurers to refund premiums, similar to what was done for auto insurance, reflecting businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic, California became the first state to pass regulation requiring insurance companies to reduce premiums paid by employers for workers compensation insurance. This emergency regulation is effective July 1, applicable to all employers in the state, retroactive to the state’s March 19 stay-at-home order and expires 60 days after the order is lifted. The amount of refund has not been calculated.

While it’s clear that these trends dramatically alter the workers’ comp landscape, uncertainty abounds and it’s too early to determine the overall impact. However, early claims data shed light on what’s occurring now.

COVID-19 claims

In Florida, the Division of Workers’ Compensation reported that there were 3,807 indemnity virus-related claims filed as of May 31. About 45% (1,718) of the claims were denied. Health care workers and those working in protective services accounted for 83.3% of the claims. About 55% of the claims from protective service workers were denied and 30% for health care workers. Service industry workers represented 9.1% of claims, office workers 6.1%, and airline workers 1.5%.

While the data did not include medical-only claims, experts have said that most coronavirus claims involve time off from work. The claims amounted to more than $3.4 million in benefits paid so far, or about 3% of the total amount of comp benefits paid for all types of claims from January through May.

Florida has a limited presumption for frontline state employees including first responders, corrections officers, child safety investigators, members of the Florida National Guard, and others who are required to contact people infected with COVID-19.

In Ohio, a monopolistic state but one without a presumption rule, some 23% of claims were denied by the state-run comp program, and 35% of COVID claims were denied by self-insurers.

In Colorado, where a presumption law was introduced in the Senate on June 2, the state’s largest workers’ comp insurer, Pinnacol Assurance, reported to the Colorado Sun that as of mid-May, it had received nearly 1,000 coronavirus-related claims. “But it said the majority of those – 60% – were filed out of an abundance of caution and were dismissed after it was later determined that the worker did not contract COVID-19.”

Of the roughly 400 claims remaining, Pinnacol said it has agreed to pay out on the majority of them, with the average claim amount running around $13,000, The majority of claims has come from first responders and healthcare workers.

According to the article, a spokesperson for Pinnacol said that if the presumption for first responders, health care workers, food-processing workers, and grocery store workers who test positive for COVID-19 passes, there could be a 27 percent increase in workers’ compensation premiums for employers in those industries. If the presumption just applies to first responders and health care workers, the premiums in those industries would triple.

The state has received 1,425 claims, about 60% have been denied by employers and about 27% approved by employers. The remainder are still being processed and investigated. The claims submitted include six for worker deaths; one approved and five remain under investigation.

In California, more than 5,000 COVID-19 related claims were filed from January to May, according to CalMatters. More than 1,000 were denied, but that was before the Governor signed an Executive Order extending protections for essential workers infected on the job on or after March 19.

According to a report by the California Workers’ Compensation Institute that examined over 1,000 claims filed as of April 30, 35% were denied, 28% accepted, and the remainder under investigation. The primary reason for denial was negative results on COVID-19 tests (70%). Lack of exposure at work accounted for 15% of denials and other reasons included refusal to take a test, working from home, and lack of symptoms. About 41 percent of workers’ comp claims were made by health workers, with another 32 percent by first responders including police and firefighters.

In the blog, Managed Care Matters, Joe Paduda of Health Strategy Associates reports that 35 workers’ comp insurers, state funds, TPAs, and service providers and large self-insured/self-administered employers were surveyed on the impact of COVID-19 claims. Payers have received about 33,000 COVID-19 claims to date and accepted just over 20% of all claims filed. The most common reasons for denial are a lack of a diagnosis, no symptoms, and/or a negative test for COVID-19.

The good news is that only a few have been very expensive claims (>$200,000) involving ICU and ventilator care.

The survey also reported on the “non-COVID” effects:

  • a drop of 25% to 50% in new injury claims since the outbreak
  • slower return to work due to an inability or unwillingness to access care and/or adjudication processes
  • respondents’ estimate that 2020 will end with a 20% decrease in the total number of claims

Of course, the impact will vary by industry with disproportionate COVID-19 claims in public entities and healthcare, and small businesses, retail, hospitality, and travel hardest hit by declining payrolls.

Takeaway

It is premature to make predictions bases on this data, particularly since much comes from the early months when there was a shortage of diagnostic tests. However, it does provide guidance on how employers should proceed when faced with a COVID-19 claim.

  • Understand the state’s position on presumption.
  • Know what information the insurance company wants to process the claim and how to identify it as a COVID-19 claim. Share any information about the job/employee that may relate to a perceived lower or higher risk of exposure from the workplace.
  • Be proactive. Find out when the symptoms began and if the diagnosis has been confirmed. Determine if the worker had contact with a person known to be infected with COVID-19 and when and where that contact occurred. Determine if immediate family members are currently showing similar symptoms or recently traveled to any high-risk areas.
  • Ask what other employees the worker may have had close contact with recently and begin contact tracing.

Substance abuse and mental health issues surge

The data indicates that employers can face a surge in addiction, stress, depression, and mental health issues as employees return to work. Isolation, uncertain job security, family distractions, and a lack of access to traditional support networks have caused some employees to turn to alcohol or drugs. At least 30 states are reporting increases in fatal opioid overdoses amid the COVID-19 pandemic. The percentages of individuals who sought screening for anxiety and depression in May were 370% and 394% higher, respectively, than in January, reported the nonprofit, Mental Health America.

Prescriptions in the U.S. for anti-anxiety medications and antidepressants rose 10.2% and 9.2%, respectively, in March compared with March 2019 according to health-research firm IQVIA Holdings Inc. Sales of alcoholic beverages in March were up 55% compared with March 2019 according to marketing research firm The Nielsen Co., and at least one state with legalized marijuana, Washington, reported record sales during the pandemic.

For many employees, the issues are not going to go away when they return to work, affecting employees’ well-being long after the crisis has passed. And it can continue for those who work remotely. A survey by alcohol.org found that one in three Americans are more likely to drink when working from home. The National Safety Council (NSC) is urging employers to implement substance abuse policies and procedures as part of their return to work strategy and offers free resources for employee mental health and wellbeing. Such issues can be a serious threat to worker safety and cost tens of thousands in productivity losses, absenteeism and presenteeism, and workers’ compensation claims if employers do not plan ahead.

Remote workers and cybersecurity

Almost as quickly as the pandemic brought the world to its knees, cybercriminals seized the opportunity to attack the millions working from home. Phishing attempts, the largest source of ransomware, are quickly increasing. According to Net Diligence, the average ransomware cost is $229,000 and the cost of a cyber breach for small businesses (85% of claims) is $673,787 and $8.8 million for large businesses.

In addition, data protection and managed services provider, Digital Guardian, published a report created by aggregating anonymized telemetry from January 1, 2020 through April 15, 2020, via 194 global companies. It found a 122% increase in employees copying company data to USB drives, 74% of that data was classified. Also, a 79% increase in data egress via all means (email, cloud, USB, etc.). More than 50% of observed data egress was classified data.

The Cybersecurity and Infrastructure Security Agency (CISA), a department of US Homeland Security, recently announced key cybersecurity recommendations for employees working from home.

  • Update VPNs, network infrastructure and devices used for remote work – as all devices are variables.
  • Notify employees of increased phishing attacks and offer training/guidance.
  • Ensure IT Security teams are proactively monitoring logs/devices and are prepared for incident response/recovery.
  • Implement Multifactor Authentication (MFA) on all VPN connections and wherever possible.
  • Routinely test VPN network for limitations of mass usage.
  • Do not use Public WIFI, even with a VPN.

A white paper prepared by TechAssure, a not-for-profit trade association for insurance brokers that specialize in technology-related risks, offers additional tips:

  • On all devices that employees are using to access their work environment, Multifactor authentication (MFA) is critically important.
  • Alert employees that fraudulent websites and apps are appearing daily claiming to contain COVID-19 resources, safety supplies, etc.
  • Password management is key. Reusing passwords is common, which increases vulnerability if one account is hacked.
  • Picking up the phone can avert a disaster if something appears suspicious. The client/vendor will appreciate the extra steps to confirm the request.

Cyber insurance policies might provide valuable coverage to mitigate against the possibility of a costly cyber incident during a time when many businesses can afford it the least.

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

Things you should know

Database of EPA-approved disinfectants for COVID-19 pandemic available via app

The Environmental Protection Agency has released its List N Tool, a new web-based application (app) that allows smartphone users and others to quickly identify disinfectant products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.

States without fee schedules pay more

The Workers’ Compensation Research Institute’s (WCRI) medical price index study found states with no workers’ compensation fee schedule pay higher prices for professional services. In states without fee schedules, including Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin, prices paid for professional services were between 42% and 174% higher than the median of study states with fee schedules.

Similarly, outpatient hospital payments are higher and growing at a faster rate in states without fee schedules. Comparing hospital payments from a group of common workers’ comp outpatient surgeries in 36 states from 2005 to 2018, WCRI researchers found that states that paid a percentage of charge versus a fixed-amount fee schedule paid as much as 168% more per surgical episode than the median of study states with flat-rate fee schedules in 2018.

Top 10 private industry occupations with the largest number of injuries and illnesses, 2018

The Insurance Information Institute released its list of the top ten private industry occupations with the largest number of injuries and illnesses. It may surprise you that retail salespeople and registered nurses had more injuries than construction laborers.

FMCSA final rule amends trucker hours-of-service regulations

The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

CMS releases new WCMSA reference guide

The Centers for Medicare and Medicaid Services (CMS) released its latest version of the WCMSA reference guide version 3.1 (May 11, 2020). The link to the CDC life table has been updated to the current CDC life table (2017) CMS has been using as of April 25, 2020, to calculate an injured worker’s life expectancy for Workers’ Compensation Medicare Set-Aside. It should only result in minor differences.

Electrical safety group creates infographic for people working from home

Aiming to promote electrical safety among people who are working from home during the COVID-19 pandemic, the Electrical Safety Foundation International has published an infographic.

“Dirty Dozen” list of 12 most egregious employers focuses on coronavirus response

The National Council for Occupational Safety and Health (National COSH) releases the report each year and this year focused on companies and organizations that allegedly are failing at preventing their employees from exposure to the novel coronavirus.

Updated COBRA Model Notice issued

On May 1, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued revised COBRA model notices (both the general notice and the election notice), along with brief Frequently Asked Questions related to the Consolidated Omnibus Budget Reconciliation Act (COBRA).

State News

California

  • Insurance Commissioner Ricardo Lara issued an order requiring insurers to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other adjustment as soon as possible and no later than Aug. 11, 2020. The order covers insurance lines including workers’ compensation, commercial automobile, commercial liability, commercial multiperil, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the pandemic.
  • The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to expand the hearing schedule.
  • There was an 11.3% drop in workers’ compensation independent medical review letters in 2019 when compared with 2018, according to a report issued by the Workers’ Compensation Institute.

Georgia

Illinois

Massachusetts

  • Attorney General Maura Healey called on the state’s Division of Insurance (DOI) to take immediate steps to ensure that businesses pay fair workers’ compensation insurance premiums that reflect the businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic.

Michigan

  • Pursuant to the Governor’s latest Executive Orders, the Workers’ Disability Compensation Board of Magistrates’ hearing schedule has been updated.

North Carolina

  • Furloughed employees who are paid will not be counted on payroll for premium calculations, the rate bureau announced in a recent circular.
  • Deputy Commissioner Hearings (Non-Medical-Motion Hearings) to Resume in June 2020 via Webex.

Virginia

  • Workers’ Compensation Commission has issued an order to return to in-person hearings on or after June 11, 2020.

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