Things you should know

NCCI’s 2020 Regulatory and Legislative Trends Report

In addition to a comprehensive review of the activity in more than 20 states to address workers’ compensation presumptions of compensability in response to the COVID-19 pandemic, NCCI’s 2020 Regulatory and Legislative Trends Report provides an overview of actions by state legislatures, governors, and regulators (through July 31, 2020) to address workers’ compensation insurance.

Key subjects include:

  • Workplace-related mental injuries
  • Legalization of marijuana
  • Reimbursement for medical marijuana
  • Single-payer health insurance
  • Employee vs. independent contractor determinations
  • Court cases impacting workers’ compensation
  • Law-only filings in 2020
  • Average approved changes in loss costs and rates

Mega claims (over $3M) on the rise

According to a new study by 10 rating agencies of workers’ compensation claims from 2001 through 2017, during the Great Recession the rate of mega claims declined sharply, with the fall in construction employment, but they have consistently increased since 2013.

While the construction sector makes up less than 20 percent of all workers’ compensation claims, it accounts for over 40 percent of mega claims. Motor vehicle accidents give rise to 20 percent of mega claims and 30 percent of claims with more than $10 million in incurred losses, but represent less than 5 percent of all indemnity claim.

Mega claims comprise a relatively small percentage (0.04%) of all indemnity claims in workers’ compensation, but add $1 billion to $2 billion in losses every year. The largest share are in California and New York.

The good news is that insurers are identifying the potential for such claims much quicker than in the past with analytical models. However, it still takes time to breach the $3 million threshold. Less than one-half of mega claims reach the $3 million threshold by 18 months from policy inception, and less than 90% reach that threshold by 126 months from policy inception.

Labor Department issues guidance on tracking employees’ teleworking hours

Although the new Field Assistance Bulletin addresses employers’ obligations under the Fair Labor Standards Act (FLSA) for remote work that has skyrocketed during COVID-19, it applies to all other telework or remote work arrangements.

NLRB upholds company’s moonlighting ban

In Nicholson Terminal & Dock Co., the National Labor Relations Board (NLRB) upheld the company’s “moonlighting” policy that prohibited employees from having another job that could be inconsistent with the company’s interest, have a detrimental impact on the Company’s image with customers or the public, and could require devoting such time and effort that the employee’s work would be adversely affected. It also noted that employees are expected to devote their primary work efforts to the company’s business.

New safety resource for construction industry from ASSP

State News

The American Society of Safety Professionals (ASSP) has launched a new library of construction safety resources.

California

  • The Workers Compensation Insurance Rating Bureau’s governing committee voted to recommend a 2.6% increase in pure premium advisory rates in the state over last year. Had it not been for the expected impact of COVID-19, there would have been a recommended a rate decrease for 2021 of 1.3%. If approved, it will be the first increase since Nov.2014.
  • The Workers’ Compensation Institute released an online application to support interactive analyses and comparisons of COVID-19 and non-COVID-19 claims.
  • The Division of Workers’ Compensation (DWC) has posted an order adopting regulations to update the evidence-based treatment guidelines of the Medical Treatment Utilization Schedule (MTUS).

Minnesota

  • The Department of Labor and Industry has pushed back the launch of a new electronic claims management system, known as Work Comp Campus, to Nov. 2 to give stakeholders more time to prepare.
  • The Department of Labor and Industry has updated the state’s medical fee schedule conversion factors to keep up with inflation.

New York

  • The Workers’ Compensation Board adopted a new rule that applies to reimbursement codes and values for COVID-19 testing when a workers’ comp claim has been filed or when testing is part of a pre-operative protocol in keeping with health department guideline. The Board also published an emergency rule, allowing telemedicine technology to be used in emergency settings.
  • The Board reminded stakeholders that the switch to a more robust claims data reporting standard, EFI 3.1, is coming next spring, and testing will begin in November. Webinars on the electronic submission system are being held on the third Tuesday of each month.

North Carolina

  • The Industrial Commission’s Rules Review Committee approved technical corrections to a temporary mediation rule. The rule no longer requires parties to attend mediations in person but allows for the use of technology to facilitate a remote meeting.
  • Registration for the Workers’ Compensation Educational Conference, to be held online Oct. 13-16, is now open.

Pennsylvania

Tennessee

  • Registration for the Bureau of Workers’ Compensation Educational Conference to be held virtually Oct. 26 – 30 is open.

Virginia

  • The Corporation Commission will hold a public hearing in October on NCCI’s proposal to cut average loss costs by more than 20% for the voluntary market.

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

OSHA watch

COVID-19

Federal

For more COVID-19 information

Cal/OSHA

  • Temporary changes to guidance that health care workers be provided certified respirators in light of N95 mask shortages. Employees are permitted to use reusable respirators certified by the National Institute for Occupational Safety and Health instead of disposable filtering facepiece respirators and to wear their own respirator if it complies with Cal/OSHA requirements.

Michigan OSHA

  • The Department of Labor and Economic Opportunity has launched a state emphasis program aimed at ensuring health care employers are providing workers who care for COVID-19 patients with the personal protective equipment they need.

Oregon OSHA

  • The Department of Consumer and Business Services is proposing a temporary rule that would combat the spread of coronavirus in all workplaces by requiring employers to implement risk-reducing measures.

OIG report on whistleblower complaints

In response to the rising number of whistleblower cases since the pandemic outbreak, the U.S. Office of Inspector General (OIG) conducted an audit and found that there are too few investigators to handle the volume of complaints, creating long delays. OIG found that in the first quarter of the year, it took an average of 279 days for OSHA to close an investigation, which is nearly double the amount of time the agency took to close cases in 2010. The report recommended that OSHA develop a caseload management plan to evenly distribute whistleblower complaints among investigators, hire whistleblower investigators to fill the current vacancies, and consider extending its current pilot program on expediting whistleblower screenings to all regions.

Final beryllium standard for construction and shipyards published

The final rule amends the following paragraphs in the beryllium standards for construction and shipyards: Definitions, Methods of Compliance, Respiratory Protection, Personal Protective Clothing and Equipment, Housekeeping, Hazard Communication, Medical Surveillance, and Recordkeeping. The Hygiene Areas and Practices paragraph from the final standards was removed because existing standards for sanitation provide the necessary protection. The effective date of the revisions is September 30.

Reminder: resources available on disaster response

Hurricanes

Tornedos

Floods

Cal-OSHA reminds employers to protect workers from wildfire smoke

Employers near wildfires need to comply with the emergency wildfire smoke regulation, which took effect in July 2019 and has been extended to early 2021.

Recent fines and awards

California

  • Investigated because of an accident, Monterey Mushrooms, Inc. of Royal Oaks initially faces $69,635 in penalties.
  • Food manufacturer Overhill Farms Inc. and its temporary employment agency Jobsource North America Inc. were fined more than $400,000 in combined penalties for failing to take steps to protect workers from coronavirus infection at two frozen food plants in Vernon.

    Eleven other employers have also been cited for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. Proposed penalties range from $2,025 to $51,190.

Florida

  • U.S. Corrections LLC, headquartered in Melbourne, was ordered to reinstate an employee for reporting personal and commercial motor vehicle safety concerns plus pay more than $70,000 in back wages, $30,000 in punitive damages, $7,341 in compensatory damages, $30,000 in emotional distress damages and reasonable attorney’s fees under the whistleblower provisions of the Surface Transportation Assistance Act.
  • T S & C Construction Services Of Florida, LLC, based in Orlando, faces $75,567 in fines for failure to protect employees from cave-ins in excavations.
  • Roofing Pioneers of Parrish faces $47,229 in penalties for a repeat violation of failure to provide fall protection.

Georgia

  • Harris Tire Company of Atlanta faces $51,274 in penalties following an inspection initiated by a complaint.

Illinois

  • DS Containers, Inc. of West Chicago faces $42,411 in penalties relating to hazardous energy control.
  • Chicago Aerosol, LLC of Coal City faces $67,470 in penalties for process safety management.
  • Environmental Remediation And Recovery, Inc. of Mounds faces $156,065 in penalties for 13 serious violations and two willful violations, including permit-required confined spaces violation.

Massachusetts

  • Bob’s Tire Company of New Bedford was cited for one repeat and two serious health violations with proposed penalties of $58,178. The company was the subject of two inspections in response to complaints.
  • Dollar General in Dracut was cited for five willful and one serious violation and initial penalties are $628,411 for willful violations related to exits, fire extinguishers, and handling of materials.

Missouri

  • Schrimpf Landscaping, a subcontractor on a construction site in Jefferson City, was cited for two serious violations after a retaining wall collapsed killing a worker. The company faces $18,892 in fines for failing to protect employees from struck-by and crushed-by hazards and to properly train employees.
  • Dyno Noble Inc of Carthage faces penalties of $32,890 related to fall protection.

North Carolina

  • KMS Roofing/Sheet Metal, L.L.C. of Greensboro faces $105,000 in penalties for two willful and one serious violation related to fall protection, training, and ladders.

Tennessee

  • Hankook Tire Manufacturing Tennessee, LP of Clarksville faces $75,750 following an inspection initiated by a complaint.

Wisconsin

  • Lincoln Industries Of Wisconsin, LLC of New Berlin faces $40,482 in penalties related to lockout/tagout and hazard communications.

For additional information.

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

Key takeaways from the WCI virtual conference

The Workers’ Compensation Institute (WCI) is a nonprofit educational organization and its annual conference is considered one of the largest comp education events in the country. Although it was postponed this year, they offered a virtual mini-educational forum. Here are some of the key takeaways:

  • Claims processing. Changes in the industry in response to COVID-19 is forcing insurers to change their claim review model and focus more on those claims that drive costs, not the less-expensive injuries, according to Danielle Lisenbey, president of third-party administration solutions for Broadspire Insurance. The widespread adoption of video conferencing and telemedicine suggests that the comp industry should allow more injured workers to self-report certain types of claims. There’s also been discussion about automated adjudication or “light-touch” claims handling, reducing the man-hours involved in claims management. Medical-only claims, up to a certain threshold, could be processed without human intervention.
  • Modernizing AMA guidelines. American Medical Association’s (AMA) has a new way of devising impairment rating guidelines. The decades-long practice of releasing a hardcover edition of the AMA Guides to the Evaluation of Permanent Impairment every ten years will be replaced by online guides that could be updated as often as once a year in a format that allows easy comparison to previous guides, and is searchable and can be annotated. Importantly, stakeholders who disagree with impairment ratings will be able to petition a panel of experts to make changes, much like the rulemaking process employed by state and federal regulators.

    The plan not to create the 7th edition but continuously update raises legal issues – would state legislatures have to pass on each change? How does it affect Pennsylvania and Oklahoma that have had significant court cases involving the 6th edition and 18 other states that use earlier editions?
  • Injured while working from home. Several defense attorneys discussed why they expect to see more cases of employees claiming they were injured while working from home. Defending such claims can be difficult since they usually lack video evidence or witness testimony to confirm or deny the details. Attorney Emily Edwards, of the Los Angeles firm Manning & Kass, suggested employers establish strict, enumerated guidelines that spell out exactly what constitutes an appropriate work environment, including sending workers an ergonomic checklist and requiring employees to send a photo of the work setting they’ll be using at home.
  • Medicare set asides. John Jenkins, who manages the Medicare contracts with workers’ compensation review contractors for the Centers for Medicare and Medicaid Services, advised that documentation is key to avoiding set-asides problems. Common problems include failure to send in full documentation with the terms of the agreement when a settlement is reached, beneficiaries declining procedures without documentation in the record, and failure to indicate conflicts with state laws regarding medical procedures allowed in workers’ comp. Also, sometimes medical and pharmacy records don’t match payment histories. Actual medical records must be included; independent medical exams cannot substitute for treating physicians’ medical documents.
  • Fraud and misrepresentation cases. Recent court decisions in Florida show that adjusters need to do an extra level of investigation to avoid attorney fees. Surveillance video without other evidence, inadequate documentation of drug tests, and failure to disprove medical necessity were examples of lost cases. Michael Laseter, technical claims specialist with Helmsman Management Services, said the lesson is to uncover solid evidence or to consider the fraud to be part of a larger strategy, such as a smaller settlement. Communication between the carrier and the employer can also be important in avoiding some attorney fees.

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

New guidance from EEOC on opioid addiction plus drug testing trends in age of COVID-19

EEOC issues two new technical bulletins

Amid the pandemic, there have been reports of increased drug use and fatal opioid overdoses. Isolation, uncertain job security, family distractions, and a lack of access to traditional support networks present unique challenges for employees who battle with substance abuse.

On August 5, the EEOC issued two technical bulletins on accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or may be addicted to opioids. Although the bulletins were created for employees and healthcare providers and do not provide new information (the stated purpose is to provide clarity), they do provide valuable insights to employers when dealing with an employee who legally uses opioids.

Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” makes clear that current illegal drug use is not a covered disability and clarifies that individuals who are lawfully using opioid medication, are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination. Also, the document answers questions about reasonable accommodations that may be available to employees who legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job.

Employers must allow employees to provide information about lawful opioid use, determine if there is a way to do the job safely and effectively with reasonable accommodation, document safety risks, provide accommodations to recovered employees, such as flex time to attend support meetings, and don’t automatically disqualify job applicants if they are in a treatment program.

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed” informs health care providers about their patients’ legal rights in the workplace. When employees who use opioids qualify as individuals with disabilities under the ADA, it could be necessary for employers to interact with their health care providers to determine whether a reasonable accommodation would enable the employee to do the job without risk of substantial harm to themselves or others. Besides describing the coverage limits under the ADA, the document outlines the types of information employers may need to decide whether the employee has an ADA disability and requires a reasonable accommodation.

Drug testing trends

Even before the pandemic hit, workforce drug testing positivity rates were climbing, reaching a 16 year high in 2019. In its annual drug testing index, Quest Diagnostics Inc. found positivity rates in the combined U.S. workforce increased in urine drug tests, climbed to 4.5%, the highest level since 2003. In the general U.S. workforce, marijuana positivity grew from 2.8% in 2018 to 3.1% in 2019 – an overall surge of 29% since 2015, according to Quest’s data.

In addition to overall increases in workforce drug positives, specific regions of the United States, particularly the Midwest, experienced dramatic increases in positivity for cocaine and methamphetamine, as well as marijuana. For an interactive map with positivity rates and trend lines by three-digit zip code in the United States, visit DTIDrugMap.com.

The analysis of overall drug use also found that in the first few months of 2020, drug deaths increased about 13% compared with last year, “attributable partly to social isolation and other disruptions caused by COVID-19. “Retail Trade had the highest overall positivity rate and Accommodations and Food Services had the highest workforce positivity for marijuana.

There is concern that the stress and anxieties associated with the pandemic will push these numbers even higher. In many states where marijuana is legal, sales have reached record highs during the pandemic. In the press release regarding the report, Dr. Barry Sample, senior director of science and technology at Quest Diagnostics notes, “There is no question that before COVID-19, rates of workplace drug positivity were trending in the wrong direction, based on our Quest Diagnostics data. The enormous strain caused by COVID-19 may prove to be an accelerant on this disturbing trend. Organizations will need to consider the impact of COVID-19 not only on workplace safety but also as a health concern for their employees for some time to come.”

While the industry has done a good job in reducing opioid prescriptions for injured workers – the share of all workers comp claims receiving opioids declined from 55% in 2012 to 34% in 2018 according to NCCI, employers should not relax their vigilance about prescribing behaviors during the pandemic. A recent comprehensive review of 13 studies with more than 13 million participants with musculoskeletal disorders (MSDs) funded by the National Safety Council (NSC) and published by McMaster University in Hamilton, Ontario, found that musculoskeletal disorders can be treated more effectively by medications and therapies other than opioids.

Yet, the difficult logistics of drug screening during the pandemic has led some employers to forgo pre-employment drug testing or postpone to a later date, if it’s allowed under state law. Still others have used mobile testing services, rather than a clinic.

Some employees refuse to report for a drug test based on COVID-19 concerns. Determining if this is truthful or a way to avoid being tested is tricky. It’s important to have a plan and a refusal to test policy. Drug testing may require new rules and new precautions that need to be communicated to those being tested. Further, if a drug test is positive employers should ask for an explanation to ensure compliance with the ADA.

For companies regulated by the Department of Transportation (DOT), staying abreast of the changing notices is key.

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

Workers’ Compensation and COVID-19: Regulatory, legislative, and guidance updates, trends in claims and lawsuits

Regulatory, legislative, and guidance updates – federal

Expansion of the federal Public Safety Officers’ Benefits Program (PSOB)

The new act, Safeguarding America’s First Responders Act of 2020, creates a general presumption that a public safety officer who dies or becomes permanently disabled from COVID-19 or related complications sustained a personal injury in the line of duty. It extends the benefit payments of PSOB, a one-time lump sum payment of $359,316 and/or monthly education assistance of $1,224, to the children or spouse of a deceased or permanently disabled first responder.

While the program already covers infectious diseases, the difficulty of proofing the virus was contracted on the job made it difficult to receive benefits. President Donald Trump signed the law on August 14 and the presumption runs from Jan. 1, 2020 through December 31, 2021. It will require diagnosis or evidence that the officer had the virus at the time of death and that the diagnosis came within 45 days of their last day on the job.

Executive order makes permanent telehealth rules, excluding PT

The expansion of telehealth services in workers’ compensation beyond the pandemic got a boost from an executive order that makes permanent an emergency funding measure, which temporarily waived restrictions on 135 services delivered by telehealth to Medicare beneficiaries. The order is of particular interest to Texas and other states that tie workers’ comp medical fees to the methodologies and values used by Medicare.

Although this was lauded as an acceptance of telemedicine, many were disappointed it did not permanently include physical therapy and rehabilitation as telehealth services. Since therapists are not listed as eligible telehealth providers in the federal Social Security Act law that governs Medicare, the Centers for Medicare and Medicaid (CMS) concluded it did not have the authority to do so.

Public comments are due by October 5 on the proposed rules .

CDC: Guidance for employers on COVID-19 case investigation, contact tracing, workplace violence in retail, and more

In the guidance, Case Investigation and Contact Tracing in Non-healthcare Workplaces: Information for Employers, the CDC notes, “Quick and coordinated actions, including case investigation and contact tracing, may lower the need for business closures to prevent the spread of the disease.” It offers tips on how employers can partner with health departments and work with their employees to control the spread of the virus.

Intended for use by employers and employees in retail, services, and other customer-based businesses, Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses, offers strategies to limit violence towards workers that may occur when businesses put in place policies and practices to help minimize the spread of COVID-19 among employees and customers.

Other new guidance relates to testing, schools, pediatric patients, laboratory personnel, veterinary clinics, and transit station workers.

For OSHA updates, see the OSHA Watch section.

Regulatory, legislative, and guidance updates – state

Georgia joined several other states in enacting a law, the Georgia COVID-19 Pandemic Business Safety Act, designed to protect healthcare facilities, businesses, and other entities from civil liability related to the spread of COVID-19, except in limited situations where there is a showing of gross negligence or intentional misconduct. The law went into effect August 5, 2020 and extends to July 14, 2021.

Nevada passed legislation that provides immunity to certain businesses, governmental entities, and nonprofits from civil liability for personal injury or death resulting from exposure to COVID-19 as long as they adhere to requirements promulgated by local, state, and federal agencies, and refrain from acting in a grossly negligent manner. It is retroactive to March 12, 2020 and expires on July 1, 2023. Notably, public-school entities (including preschools, K-12, charter, and private schools), as well as hospitals and other healthcare providers, were specifically precluded from liability protections.

The legislation also imposed additional mitigation requirements for public accommodation facilities in Las Vegas and several other areas of the state, directing the Director of the Department of Health and Human Services to adopt regulations requiring public accommodation facilities to limit the transmission of COVID-19. A “public accommodation facility” is defined as a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility, or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily, or weekly basis. The legislation also authorizes the Nevada Gaming Control Board to require casinos under its domain to submit written copies of its COVID-19 prevention protocols.

The New Mexico Environment Department filed an emergency amendment to require employers to disclose positive COVID-19 cases among their employees to the state within four hours of being notified of the test results.

The New York State Workers’ Compensation Board adopted a new rule that applies to reimbursement codes and values for COVID-19 testing when a workers’ comp claim has been filed or when testing is part of a pre-operative protocol in keeping with health department guideline.

The Board also published an emergency rule allowing telemedicine technology to be used in emergency settings. Reimbursement already had been authorized for many other medical services in the state. Because it was adopted on an emergency basis, without the public comment period, the rule will expire on Oct. 18.

The Pennsylvania Department of Health issued a new order requiring the development and implementation of policies and procedures related to the distribution of personal protective equipment, specifically N95 masks, for direct care workers in long-term care facilities. Under the new order, nursing homes, personal care centers, assisted living homes and private intermediate care facilities must develop and implement policies for obtaining and distributing personal protective equipment.

The Tennessee COVID-19 Recovery Act was enacted, providing broad protection to individuals and businesses from claims arising from COVID-19 unless there is clear and convincing evidence of gross negligence or willful misconduct. Health care professionals and facilities, businesses, non-profits, religious organizations, public institutions of higher learning, and all other individuals and legal entities are protected from liability under the Act.

A bill that would have made COVID-19 an occupational illness failed in Tennessee’s Senate Commerce and Labor Committee.

Texas became the final NCCI state to officially approve NCCI’s payroll rules relating to paid furlough due to COVID-19 and allowing for reclassification of employees who have changed jobs and are working from home.

Claims: a potpourri of approaches but higher denial rates than other claims

While claim data by state is limited, claims are being handled differently in different states.

Moreover, some businesses are encouraging sick or quarantined workers to use paid time off or have kept paying salaries to avoid claims, feeling it is better to assist virus-stricken employees than create an adversarial situation. Yet, denial rates are relatively high.

The Division of Workers’ Compensation in Florida reports a denial rate of about 46% of the 5,693 claims that had been filed as of the end of June. In Georgia, 44% of the 1,827 claims have been denied as well as almost two-thirds of claims in Colorado (1,200 of 1,923). Of the 11 fatality claims in Colorado, only one has been accepted. First responders and health care workers who contract COVID-19 at work may be eligible for workers’ compensation benefits under Florida law, but the other states mentioned do not have presumption for COVID-19 exposure.

Through July, COVID-19 claims represented 10.2% (31,612) of all California injury claims. This number is projected to grow to about 56,000 since there are time lags in filing, reporting, and recording. Claims include 140 death claims, up from 66 reported as of July 6.

Health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.7% of the claims recorded for the first seven months of this year, followed by public safety/government workers, who accounted for 15.8% of COVID-19 claims. These were followed by retail trade (7.9%), manufacturing (7.0%), and transportation (4.7%), according to the analysis.

California’s executive order of presumption was retroactive to March 19, 2020 and extended through July 5, 2020.

In Pennsylvania, there were 5,354 initial workers’ compensation claims received between March 11 and August 7 that were related to COVID-19, according to the state Department of Labor and Industry. Virginia reports over 6,300 claims as of mid-August, most of which are still pending. Ninety-four have been denied.

During a recent webinar, Health Strategy Associates’ Joe Paduda and Bickmore Actuarial’s Mark Priven, noted FAIR Health, a medical data firm, reported that the median hospital charges for COVID patients, for most age groups, were less than $40,000. The median allowed amount of reimbursement was about $20,000. Further, a recent survey of third-party administrators and insurers shows that most virus claims cost less than $3,500 for medical and indemnity. The costs are driven by just four percent of the claims.

Lawsuits on the rise

According to the employment and labor law firm Fisher Phillips LLC, 319 lawsuits relating to COVID-19 were filed in July, up from 122 in June. As of August 25, there were 532 cases. California leads all states with 100 filings, followed by New Jersey (60), Florida (54), Texas (39), New York (37), Ohio (25), and Illinois (21). Many of the cases involve workers claiming unsafe or unsanitary work conditions or retaliation. Some lawyers speculate that employees may feel it is difficult to win their comp claims and turn to lawsuits. Work comp accounts for only about 15% of the P&C claims related to the virus.

Also emerging are third party suits from family members, alleging wrongful death of a loved one or spreading of the virus to family members, because employers failed to keep employees safe.

new NCCI report compiles some recent COVID-19 workers’ comp lawsuits. While the cases are still pending, they provide a glimpse into the type of behavior and policies that lead workers to sue during the COVID-19 pandemic. Given the common theme of employee safety, the best way for employers to protect themselves from litigation is to follow and enforce public health and OSHA guidelines, provide adequate protective equipment and training, and carefully communicate all protocols. Make the focus of communication the well-being of employees, not production. Steep jury awards are common in emotional cases and there is much emotion surrounding COVID-19, so take steps to avoid going to trial.

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