OSHA watch

Guidance on distancing

Recent guidance focuses on strategies to implement social distancing in the workplace. Spanish version. It urges employers to isolate workers showing symptoms of coronavirus until they can go home or seek medical care, establish flexible worksites and work hours, stagger breaks and rearrange seating in common areas to maintain social distance, mark social distancing with floor tape where customers are present and reposition work stations and install plastic partitions to create more distance. It also issued new procedures to make it easier for federal workers in high-risk industries to obtain workers compensation for COVID-19.

Coronavirus alerts: Industry specific recommended practices

In May, recommended business practices were released for food service, nursing homes and long-term care facilities, dental practitioners, retail pharmacies, and rideshare, taxi and car services. All business guidances released to date can be found here in English and Spanish.

COVID-19 Quick Tips Videos

New animated videos provide quick tips to keep workers safe from COVID-19:

For all the quick tip videos released related to coronavirus, including Spanish versions, go here.

Eight ways to protect meat processing workers from COVID-19

Principal Deputy Assistant Secretary Loren Sweatt outlined eight ways to protect meat processing workers from COVID-19.

Guidance is now available in English and Spanish.

COVID-19 Q & A: Social distancing in meat and poultry facilities

Q. In some areas of meat and poultry processing facilities, social distancing at 6 feet of distance may not be feasible in order to maintain continued operation at the maximum capacity possible. In these areas, are other controls, based on the hierarchy of controls outlined in the CDC/OSHA guidance (e.g., personal protective equipment) acceptable in order to maintain safe operations at the maximum capacity possible?

A. Employers should use the hierarchy of controls to control hazards and protect workers, including by first trying to eliminate hazards from the workplace, then implementing engineering controls followed by administrative controls and safe work practices, and finally, using personal protective equipment (PPE). When engineering controls, such as physical barriers, are not feasible in a particular workplace or for a certain operation, other types of controls, including PPE, may be considered in accordance with the hierarchy.

Poster and video show right way to put on, take off respirator

A poster and video detail seven steps to properly put on and remove a respirator at work.

English version of poster

Spanish version of poster

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

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

HR Tip: EEOC expands COVID-19 workplace guidance, delays EEO-1 deadline

Employers cannot exclude employees from working simply because they have an underlying medical condition that the Centers for Disease Control says may pose a higher risk of severe illness if they contract COVID-19. In early May, the Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act.

The newly added questions and answers, G.3, G.4., and G.5., provide information about the accommodation of employees with underlying medical conditions. The answer to G.4. was revised after the initial posting to clarify that the ADA does not allow exclusion of employees simply because they have an underlying medical condition that the CDC says might pose a higher risk of severe illness if the individual contracts COVID-19.

Employers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation. The guidance notes that the “direct threat” requirement is a high standard. It also includes information on what an employee needs to do to request a reasonable accommodation and examples of accommodation. A worker must inform the employer that a change is needed for a reason related to a medical condition, which may be requested in conversation or writing. The employer may then ask questions or seek medical documentation.

EEO-1 filing deadline delayed

The Coronavirus pandemic has delayed the deadline for employers to file both their 2019 and 2020 EEO-1 Component 1 data to March 2021.

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

Highlights of the 2020 NCCI Symposium: focus on what coronavirus means for the workers’ comp industry

Each year, the National Council on Compensation Insurance (NCCI), which gathers data, analyzes industry trends and legislation and prepares insurance rate and loss cost recommendations holds an Issues Symposium. Needless to say, the virtual event differed from years past, which looked at recent trends to project future performance. Like everything else the pandemic touches, the unknowns make projections a formidable task.

State of the Line

Donna Glenn, NCCI’s chief actuary began with a look at where the industry stands, which was good news. Highlights of the State of the Line address include:

  • In 2019, the industry reported a combined ratio for private carriers of 85%, making it the sixth consecutive year that the workers’ comp line of business has posted an underwriting gain. The two most recent years, including the 83% combined ratio in 2018, showed the lowest workers’ comp combined ratio since the 1930s, according to the presentation.
  • Years of profitable underwriting and healthy reserves in 2019 in the workers’ compensation sector will help the industry weather coronavirus-related claims amidst lower premiums in the coming months.
  • Claim frequency continued to decline with average lost-time claim frequency across all 38 states that work with NCCI declined by 4% in 2019.
  • Looking at types of injuries, sprains and strains decreased more quickly than most – 5.4%.
  • For body parts, back injuries decreased more than other types. Head, brain, and face injuries increased and can be attributable to the increase in motor vehicle accidents, likely the result of smartphone use.
  • Average indemnity claim severity increased by 4% relative to the corresponding 2018 value, which was in line with wage growth.
  • Medical lost-time claim severity increased by 3%, which is trending faster than personal health care costs.
  • The average indemnity claim cost in NCCI states is $54,800, including $25,300 for lost wages and $29,500 for medical costs.

Unlike previous years, the past does not give a lens into the future. It’s unknown what level of claims insurers will face from the COVID-19 outbreak or how much premium will be lost as a result of high unemployment. The extent of presumption coverage in states adopting changes to workers’ comp laws will be a major factor.

Claim activity unrelated to COVID-19 is also unpredictable. Some employees may delay care or not report claims, and those with existing injuries could see their return to work and recovery hindered by fewer jobs and doctor check-ups. Fears over unemployment can cause workers to file claims over smaller and non-acute workplace injuries.

 

Coronavirus and the Recession of 2020-Impact on Workers’ Compensation

Dr. Robert Hartwig, PhD, CPCU, presented the pandemic’s effect on our economy and the workers’ compensation system. While the industry has entered the COVID-19 era in a position of significant financial strength, the impact of the pandemic is still unfolding and is unlike anything faced before.

The impact will vary by industry. Sectors hard hit by unemployment, such as hospitality, retail, manufacturing, and tourism will see large drops in premiums. At the same time, there will be upward pressure on costs, as more states pass presumptive laws and exclude COVID-19 claims from Experience Mod ratings. Workers’ compensation coverage will spike in severity and frequency for essential workers like those in healthcare.

The bottom line is that the workers’ comp line will be severely impacted given the reduction in payrolls, flattened wages, historically low interest rates, and stock market volatility. Dr. Hartwig estimated up to a 25% drop in workers’ compensation premium written. He noted insurers have received tens of thousands of claims related to COVID-19. There have been extraordinary efforts to stretch contract language to find coverage where none exists or none was intended – especially in workers’ compensation and business interruption.

 

Workers’ compensation research: demographics and medical services

NCCI also released reports prepared by two of its research experts. Latest Trends in Worker Demographics was presented by Barry Lipton, FCAS, MAAA, practice leader, and senior actuary at NCCI. Highlights include:

  • The number of older workers (65+) in the workforce continues to increase. This age group will see the largest growth between 2018-2028 (projected 6.1 million more workers), closely followed by those ages 25-44, who will see a projected growth of 4.8 million.
  • There has been an increase in accident frequency among older workers and they lose more time for work-related injuries. The average worker will lose eight working days for an injury, while those ages 65 and older, lose an average of 14 days. Falls, slips, trips and overexertion are major causes.
  • Short-tenured employees suffer a disproportionate share of total workplace injuries. New workers with under five years of experience account for a third of all injuries, but only make up a fifth of all employment. Workers with five or more years of experience account for another third of all injuries but make up half of all employment.

Raji Chadarevian, director of Medical Regulation and Informatics for NCCI, offered Gen rX-The Next Generation of Medicine. Highlights include:

  • In 2012, non-physicians made up 47 percent of all professional services. In 2018, that share has jumped to 59 percent. Non-physicians are composed of professions like physical therapists, physician assistants, and nurse anesthetists.
  • There’s a massive increase in telemedicine services in response to COVID-19. This trend, which the industry had been slow to adopt, offers potential cost savings and accelerated care.
  • Overall opioid use is on the decline, with the share of all prescription claims receiving opioids decreasing 38 percent from 2012-2018.
  • One out of every 42 chronic pain claims received mental health services in 2018, a 20% increase since 2012.
  • There were 23 physical therapy visits per chronic pain claim during the first year of injury in 2018, a 15% increase since 2012.

Employer takeaways:

  • Employers that have experienced a reduction in payroll should be proactive in working with their insurance agent to get the insurance company to adjust premiums now rather than waiting for an audit.
  • Employers must accurately document how their operation has changed and affected the classification of employees.
  • Given the high costs of indemnity claims, a strong recovery-at-work program and good hiring practices are cornerstones to lower rates.
  • Stay focused on all safety measures and maintain a strong risk profile. No one knows exactly how the expected massive increase in costs, coupled with the reductions in premiums, will be paid. Since many of the claims will be exempt from the Experience Mod rating, it’s reasonable to guess that it will come from rate increases. Expect to see a tightening market and more rigid underwriting.
  • Safety management and loss prevention can put extra focus on short-tenured workers and older workers.
  • When the unemployment rate was at record lows, employers relaxed hiring and onboarding practices. Employers in a position to take advantage of a surging labor market pool can make the best choices with good hiring practices.

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

Ten costly mistakes when reopening and operating a business during COVID-19

These challenging times are a stress test for all companies. Survival mode is not sufficient. What’s needed is an ability to lead employees through the crisis, absorb and respond to uncertainty, agility to modify the operating model quickly, and creativity to improve the experience of customers. The Internet offers an overabundance of information – google “preparing your business to reopen after COVID-19” and there are 1,780,000,000 hits. There’s no argument – it’s a daunting task. Here are ten costly mistakes to avoid:

  1. Fail to have a written, site-specific COVID-19 Exposure Control and Response Plan

    Many states and localities require businesses to develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan and both the CDC and OSHA recommend adopting one. Dustin Boss, a Certified Risk Architect and Master WorkComp Advisor with Ottawa Kent Insurance, notes that any business that operates without an Exposure Control Plan will be exposed to a number of legal or business risks. These include OSHA citations, being shut down by state or local health departments, becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors, and/or guests. Lawyers have already started filing wrongful death suits, including high profile cases against Tyson and Walmart.

    Moreover, there is significant reputation exposure. Recently, a worker on the production line of American Fork (Utah-based Built Brands LLC), who contracted the virus along with her disabled daughter and roommate filed suit against her employer, charging she was threatened with termination when she complained about the company’s safety procedures. The case has received national attention.

  2. Fail to follow appropriate guidance

    While most business owners are responsible for making their plans to keep employees, customers, and vendors safe when reopening and operating their establishments, there are critical guidelines to incorporate. The CDC has issued detailed guidance on reopening businesses, health care facilities and providers, schools, transit, and other industries. This guidance also provides information regarding testing and data to assist with exposure and risk concerns for those industries. Joint guidance by the CDC and the EPA to clean and disinfect surfaces is available here.

    OSHA has provided general guidance for businesses as well as industry-specific guidance, which are offered in both English and Spanish. Its most recent guidance focuses on strategies to implement social distancing in the workplace. Spanish version.

    In addition, most states have provided specific guidelines that must be incorporated into the exposure plan. The best resource is the state’s dedicated webpages for COVID-19. Recognizing that each state has its own guidance, the U.S. Chamber of Commerce established the Essential Critical Infrastructure Workplace Tracker. It provides a state-by-state glance of stay-at-home orders with links to each order, start and current end dates, and other details about each state’s guidance.

    Beyond the federal and state resources, stick with sources you know you can trust such as your trusted advisors and industry and trade organizations. Professional organizations such as the National Safety Council (NSC) and the American Industrial Hygiene Association (AIHA) offer industry-specific guidance. The North America’s Building Trades Unions and CPWR, The Center for Construction Research and Training have developed national guidance on infectious disease exposure control practices for construction sites.

    Keep an open mind, constantly evaluate, and adjust your plan as operations evolve.

  3. Fail to incorporate the full range of operations in your plan, including remote workers

    Even when the plant or office has been reconfigured to conform to physical-distancing protocols, there’s a need to figure out adaptations for bathrooms, breakrooms, entrances and exits, hallways, elevators, and any other common areas. Determine how visitors, whether customers, vendors, or delivery people, will be managed. If your workforce relies heavily on public transport, you may want to consider other options such as ride-sharing subsidies or more flexible hours to avoid rush hour.

    Stay-at-home orders were issued at such speed that employers had no time for home assessments and ergonomic training. Training and investment in proper desks or chairs for those workers who will continue to work remotely for an extended period should be part of the plan. To the extent that an employer has not created or revisited their telework policy, now is the time to do so.

  4. Fail to properly communicate the plan to employees and customers

    In the early stages of the outbreak, Dr. Fauci said, “… if it looks like you’re overreacting, you’re probably doing the right thing.” If it feels like you are overcommunicating, you are probably doing the right thing, too. The fear of the virus, coupled with the fear of losing a job, is unprecedented. Tell your employees and customers early and often what you are doing to keep them safe. If you have a phased return to work and some employees are furloughed, be sure to communicate with all of them. Keep an open dialogue with employees and be transparent. Do they feel safe?

    Be specific about what you are expecting of the workers. If face coverings are required, is the company going to provide them, when they have to be worn, how they can be cleaned, can they wear a bandana, and so on. What are the consequences if they don’t comply? Identify their responsibilities to help with prevention efforts while at work by following company instituted housekeeping, social distancing, and other best practices at the workplace.

    Of course, communication and training must adhere to social distancing protocols or be safely automated. Studying “essential businesses” that stayed open during the pandemic, McKinsey researchers found that online training and education modules to familiarize employees with the new safety and hygiene protocols before they return to work played a significant role in instilling new habits.

    Ongoing reminders, whether signage, texts, or announcements to sanitize workstations, wash hands, and maintain social distance help to reinforce positive behavior as well as build employee confidence in their safety. Also, don’t assume that employees know what to do in the event of exposure or diagnosis; constant reminders are important.

  5. Fail to properly train managers and supervisors

    Managers and supervisors are the linchpins to successfully reopen and maintain business continuity. Educate and involve them in the development of new protocols before reopening. Be realistic about what the changed working conditions mean for production and discuss expectations. Not only do the managers have to adapt to changed working conditions, but they have to understand the fundamentals of assessing the risk, recognizing the hazard of COVID-19, how to handle a suspected case and even rumors of a suspected exposure. Moreover, they will be working with many employees whose mental and emotional health has been upended by the virus. They’ll need to understand at the most granular level employee sentiment about COVID-19 and their comfort level with the company’s response.

  6. Assume your workers are ready to return to workA nationwide survey of 1000 workers in late April by Eagle Hill Consulting LLC found that 54% were worried about exposure to COVID-19 at their job and 58% said the availability of protective protections like masks, gloves, and hand sanitizer would make them feel safer. Fifty-five percent say mandating employees with symptoms stay home and 53% said making COVID-19 tests available would also lessen concerns, but only 43% support employers testing for symptoms. Seventeen percent worried the test results would affect their employment.

    The good news is that most employees (71%) say their employers will be prepared to safely bring employees back to the workplace. However, there will be some workers who may refuse to work or may upset others if forced to return. Others may want to continue to work remotely. Be prepared about how you will treat these workers in a fair and non-discriminatory way and document your response.

  7. Fail to recognize the toll on physical and mental health

    For many people, this has been the most distressing time in their lives. They’re concerned about their family, economic hardship, and health. Those with physically demanding jobs may not be in shape. Some have had difficulty sleeping or turned to substance abuse and others have been severely stressed. The impact on mental health is real. Knowing that you understand what they are going through and offering resources to those in need can help to ease anxiety.

  8. Not understanding the privacy and logistic issues of conducting tests, taking temperatures, and contact apps

    Guidance from the EEOC permits certain exceptions to the traditional rules under the ADA, but it doesn’t mean that privacy rights can be ignored. Further, the guidance does not address which tests are appropriate, who should conduct the tests, how tests should be administered, what should be done to protect workers’ privacy, the reliability or frequency of testing, how the tests will be paid for and whether employees should be paid for the time they wait in line to have their temperatures taken.

    It’s important to realize that under OSHA temperatures are medical records, which must be maintained for 30 years. Some legal experts recommend minimizing the amount of data you collect, such as recording only those that exceed the COVID-19 threshold of 100.4 degrees and are sent home. Under the ADA, the information that is recorded should be treated as a confidential medical document and not placed in an employee’s personnel file.

    Employers should also review the CDC guidance on testing and any relevant state guidance.

    Similarly, companies must also decide on whether they use contact apps to track and identify people who might have been exposed when someone tests positive. To date, the EEOC has not issued guidance, but employer-based contact tracing implicates a variety of laws, including workplace laws like the Americans with Disabilities Act (ADA), other federal and state employment, civil rights, privacy, and consumer protection laws.

    Before embarking on testing or tracking, it is best to seek legal counsel.

  9. Discriminate against those considered susceptible to the coronavirus

    The CDC has identified the population that is at high-risk for severe illness, including people over 65 and those with pre-existing health conditions, and recommends that employers protect such employees by encouraging options to telework and offering duties that minimize interaction. The EEOC has also issued guidance that states that if an employer is concerned about an employee’s health being jeopardized upon returning to the workplace, the employer cannot exclude the employee “solely because the worker has a disability that places him at a ‘higher risk for severe illness'” if he gets COVID-19. Such an action is not allowed unless the employee’s disability poses a “direct threat” to his health, and cannot be eliminated or reduced by reasonable accommodation. However, it is appropriate to reach out to employees in high-risk groups and discuss accommodations that may be possible.

    In deciding who will return to work, legal experts suggest employers should follow the same procedures they would in reductions-in-force by statistically analyzing those they are asking to return and see if it is disparately impacting protected classes. If there’s a statistical anomaly, documentation is critical. A good beginning is to look at the skill sets you’ll need in the new economy and employees who are cross-trained.

    Also, employers must pay close attention to employment laws, including exempt and non-exempt classifications, overtime calculations if performing work in two positions at different rates, and benefits for existing and furloughed workers. For workers’ compensation, employers will want to carefully document all changes to their operation and job classifications, as well as employees on paid medical leave.

  10. Lose focus on other health and safety risks

    It’s well-known that distracted workers are prone to make more mistakes and safety incidents increase. There’s little doubt that COVID-19 and concerns about job security are major distractions. Reinforce the importance of safe work practices and while social distancing may make pre-COVID-19 meetings impossible, alternative methods should be used.

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

OSHA changes course again on recording of COVID-19 cases and increases onsite inspections

OSHA’s shifting guidance has employers’ heads spinning. For the third time since the onset of the pandemic, OSHA has issued guidance about recording COVID-19 cases. In March, it sent a memo reminding employers that COVID-19 diagnoses are recordable events, but in April it backtracked, significantly limiting the reporting requirements. Specifically, only cases related to health care workers, first responders, and correctional institution employees had to be recorded. All other employers were exempt except in cases in which “objective evidence” existed that a COVID-19 infection was work-related or the evidence was “reasonably available” to the employer.

New guidance announced on May 19 overrides the April guidance.Essentially, the new guidance requires an individualized work-relatedness analysis for all industries.

Effective May 26, COVID-19 cases are recordable if the illness is confirmed as COVID-19, the illness is work-related as defined by 29 CFR 1904.5 and the case involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include death, days away from work, medical treatment “beyond first aid,” loss of consciousness, and restricted work or transfer to another job. The revised enforcement policy directs that employers “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not work-related.

Recognizing employee privacy concerns, OSHA indicates that employers are “not expected to undertake extensive medical inquiries” and may rely only “on the information reasonably available to the employer at the time it made its work-relatedness determination.” According to Conn Maciel Carey LLP, an OSHA/MSHA Workplace Safety, Labor and Employment Boutique Law Firm, it will be sufficient in most cases for employers to:

  1. Ask the employee how he believes he contracted the COVID-19 illness
  2. Discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
  3. Review the employee’s work environment for potential SARS-CoV-2 exposure (which should be informed by any other instances of workers in that environment contracting COVID-19 illness).

During the investigations, employers need to consider workers’ privacy and refrain from disclosing the names of those who have tested positive for the virus to others in the workplace and should document all aspects of the investigation. OSHA notes, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

To assist employers in identifying work-relatedness, OSHA describes the types of evidence that may weigh in favor of or against work-relatedness. For instance, OSHA says, COVID-19 illnesses “are likely work-related” if:

  • Several cases develop among workers who work closely together and there is no alternative explanation;
  • The illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation; and
  • Job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

The guidance also indicates that an employee’s COVID-19 illness likely is NOT work-related if:

  • Only one worker in a general vicinity in the workplace contracts COVID-19;
  • Job duties do not include having frequent contact with the general public, regardless of the rate of community spread;
  • Outside the workplace, the infected employee associates closely and frequently with a non-coworker (e.g., a family member, significant other, or close friend) who has COVID-19.

As Conn Maciel Carey LLP points out, the biggest differences between the April 10 guidance and the May 19 guidance are:

  1. There is no exemption from conducting case-by-case work relatedness analyses for medium and low-risk exposure workplaces; and
  2. The new memo expands the examples of the type of objective evidence of likely work-relatedness from just a cluster of positive cases, to also include cases where someone contracts the illness after a lengthy exposure at work or has job duties that involve frequent, close exposure to the general public.

The firm also notes the importance of the term “no alternative explanation.” Where there is widespread community spread, it is important to document if an employee acknowledges such interactions away from work.

When determining whether an employer has complied with the revised policy, OSHA instructs compliance officers in a memo issued the same day to apply these considerations:

  • The reasonableness of the employer’s investigation into whether the COVID-19 case was work-related
  • The evidence available to the employer
  • The evidence that COVID-19 was contracted at work

Consistent with existing regulations, employers with no more than 10 employees and certain employers in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalization, amputation, or loss of an eye.

It is important to remember that even if a COVID-19 is recordable, it does not mean that it will be compensated by workers’ comp. OSHA recordability does not impact workers’ comp determinations and vice versa.

What employers should do now

For employers to prove a reasonable and full faith inquiry, Dustin Boss, a fellow Certified WorkComp Advisor offers this advice:

  • Implement preventive measures and methods for contact tracing as employees return to the workplace
  • Develop procedures to respect employee privacy during investigation into work-relatedness of a confirmed case of COVID-19
  • Update 2020 OSHA records and retrain staff members responsible for tracking injuries (if late, submit 2019 data which was due March 2)
  • Focus on minimizing the risk of transmission in the workplace and develop procedures to investigate the circumstances surrounding employees who test positive for COVID-19

Beyond the recording requirements, employers are exposed to the possibility of OSHA citations. As the fear of contracting the novel coronavirus permeates the workplace, thousands of employees have complained to OSHA regarding the insufficiency of their employers’ protection against COVID-19. In the same news release announcing the new enforcement guidelines, OSHA announced that it is increasing in-person inspections at all types of workplaces. “The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.”

Boss points out that enforcement of COVID-19 issues falls under the catch-all General Duty Clause that employers will provide a place of employment free from recognized hazards that are likely to cause death or serious harm to his employees. He notes that citations for COVID-19 exposure will rely on guidance the employer did not meet, including OSHA’s.

Both OSHA and the CDC recommend employers adopt exposure control plans. (see post for more detail)

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

Coronavirus, Workers’ Compensation and legislative updates

Like everything else the pandemic touches, the regulatory and legislative actions related to COVID-19 are a work in progress and continue to evolve.

Workers’ Compensation

Presumptive coverage

Governors and state legislatures grappling with how best to protect employees, while balancing the interests of businesses, continue to look to emergency adjustments to the workers’ compensation system to deal with COVID-19. The dominant issue is providing presumption of coverage for COVID-19 so that first responders and health care workers and, in some cases, other essential workers, have unimpeded access to workers’ compensation benefits.

Legislation is pending or has passed in several states, but the laws vary significantly. In some states, the presumption is conclusive, scrapping the basic tenet of workers’ comp that employees must prove they were exposed to the virus during the course of their employment. But in others, the presumption is rebuttable. The trend, which dramatically alters the workers’ comp landscape, is so prevalent that the National Council on Compensation Insurance, (NCCI) tracks this information.

States implementing changes include Alaska, Arkansas, California, Florida, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, New Mexico, North Dakota, Utah, Washington, Wisconsin, and Wyoming. States with legislation pending include Illinois, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, and Vermont. Updated status can be found here.

Not surprisingly, the action with the broadest sweep came from California. On May 6, Governor Gavin Newsom issued an Executive Order making it easier for employees to prove that they contracted COVID-19 at work and thus, get workers’ compensation benefits. While the presumption can be disputed if there is evidence the disease was contracted outside of work, the order effectively makes workers’ comp coverage available to all employees who worked outside their homes from March 19 to July 5 and contracted COVID-19 within two weeks of performing on-the-job duties. It is expected to cost between $600 million on the low end and $2 billion if higher estimates come to fruition, according to the WCIRB.

In Illinois, a significant court challenge compelled the Workers’ Compensation Commission to withdraw a sweeping emergency amendment that would have created a rebuttable presumption that when medical personnel, first responders, and essential employees contracted COVID-19, it was work-related. Both houses of the General Assembly recently passed a more limited bill that was a compromise measure that both businesses and workers’ advocates could live with. It provides death benefits for first responders who were presumably infected with COVID-19 on duty between March 9, 2020 and December 31, 2020 and worker’s compensation benefits for essential workers under certain conditions, but gives businesses a path to rebuttal.

The term “COVID-19 first responder or front-line worker” is defined in the bill as “all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers, correction officers, and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. For purposes of this subsection only, an employee’s home or place of residence is not a place of employment, except for home care workers.” Further, COVID-19 claims will not count against employers’ experience modification and premiums.

Employers can rebut claims under certain conditions if they can demonstrate the workplace was following current public health guidelines for two weeks before the employee claims to have contracted the virus; can provide proof that the employee was exposed by another source outside of the workplace; or, the employee was working from home for at least 14 days before the injury claim. Documentation will be critical to support rebuttals. The bill is expected to be signed by the Governor.

Employers and insurers are concerned that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges. In Minnesota, the Senate recently passed a bill which creates a coronavirus relief fund with stipulations that such funds will help local government organizations cover workers’ compensation costs related to COVID-19, among other needs generated by the pandemic.

While few states have extended presumption beyond health care workers and first responders, some have issued warnings about the handling of COVID-19 claims. Recently, the Industrial Commission of Arizona issued a policy statement noting “claim denials related to COVID-19, like any claim denial, must be ‘well-grounded in fact’ and ‘warranted by existing law'” or based upon a good faith argument for the extension, modification, or reversal of existing law.

NCCI: Impact of claims on Experience Mod

In mid-May, NCCI posted Item E-1407 which excludes all COVID-19 claims from Experience Mods. In the early days of the crisis, new claim codes were created specifically for COVID-19 infections that were paid under workers’ compensation. This filing serves to exclude those claims from experience rating (and merit rating). This applies to claims with accident dates of December 1, 2019 and later and there is currently no expiration date for this rule.

This rule has been approved by Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Maryland, Mississippi, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, South Dakota, Tennessee, Vermont, and West Virginia. Other states are expected to follow suit.

 

Independent states

Pennsylvania

In early May, the Pennsylvania Comp Bureau posted the rules relating to COVID-19, effective 3/1/20 to 12/31/20.

These changes allow for:

  • Temporary reclassification to 953 (Clerical) for employees who are now doing clerical work at home during the crisis.
  • Exclusion of payroll for wages paid to employees who are performing no services to the employer. This payroll will be assigned to Code 1212.
  • Exclusion of COVID-19 claims from Experience Rating.

There was a filing to make changes to the Basic Manual as well as the Statistical Plan.

Delaware

Also in May, Delaware made changes identical to Pennsylvania, effective April 1, 2020.

New York

New York has approved new rules, which differ from other states. According to RC 2512, published 5/1, payroll for employees who are not working at all OR employees who are temporarily reassigned to work at home will have their payroll assigned to the new code 8873. 8873 will carry the same rate as 8810. This means that employees who are being paid to not work WILL have premium applied to them, albeit at the very low 8810 rate.This rule is retroactive to 3/16/20 and applies for 30 days following the lifting of the Stay at Home order.The filing also excludes COVID-19 claims from any future experience rating.

Massachusetts

The Massachusetts Rating Bureau released a statement, “For the time being, we are interpreting Rule V.G. 6 to apply to the COV-19 situation. It states that employees who are not on strike, but are unable to perform their normal duties because of a strike, and they are performing absolutely no work for their employer and are not present on their employer’s premises during this period, such wages shall be assigned to Code 8810 – Clerical Office Employees NOC, provided the facts are clearly disclosed by the employer’s records.”

Minnesota

In Minnesota, the bureau has adopted NCCI’s payroll rules, but has stated that COVID claims WILL BE included on the experience mod.

Michigan

Unlike most states, the Michigan bureau (CAOM) does not file rules on behalf of carriers operating there. The carriers have the option to adopt or not adopt anything. CAOM has approved NCCI’s payroll rules for the Assigned Risk market, but individual carriers will have the option whether to follow this or not.

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

Things you should know

Medical payments per comp claim rise: WCRI

Medical payments per workers compensation claim increased in most states in 2018 after a period of relative stability, according to studies of 18 states by the Workers Compensation Research Institute (WCRI).

Managers’ attitudes toward worker well-being can lead to safe and healthy behaviors: study

Employees who sense their managers are invested in their well-being at work may be more likely to practice safe and healthy behaviors on the job, results of a recent study from the Colorado School of Public Health suggest. The study was published in the February issue of the Journal of Occupational and Environmental Medicine.

Worker suicide: CDC study explores which industries, occupations have the highest rates

Comprehensive suicide prevention strategies that target certain industry and occupational groups are needed particularly in the extraction and construction industries, according to a report from the Centers for Disease Control and Prevention.

Early care can help mitigate mental issues tied to workplace injuries

An article in Business Insurance cites several studies finding that people who were injured at work have an increased risk of both opioid dependence and depression.

Preventing opioid misuse: New guide for employers in rural areas

Aiming to assist rural communities in the fight against opioid misuse, the Office of National Drug Control Policy has partnered with the U.S. Department of Agriculture on a guide for employers.

State News

California

  • COVID-19 resources for businesses can be found here.

Georgia

  • COVID-19 resources for businesses can be found here.

Illinois

  • COVID-19 resources for businesses can be found here.

Indiana

  • COVID-19 resources for businesses can be found here.

Massachusetts

  • COVID-19 resources for businesses can be found here.
  • The Division of Insurance approved an average 6.8% rate cut for policies incepting on or after July 1.

Michigan

  • COVID-19 resources for businesses can be found here.

Minnesota

  • COVID-19 resources for businesses can be found here.
  • According to a WCRI report, medical payments remained fairly stable between 2013 and 2017 before rising in 2018 at a rate of 6.5% for claims with more than seven days of lost time at 12 months’ maturity. Indemnity benefits per claim were approximately $15,500 for 2016 claims evaluated in 2019.

Missouri

  • COVID-19 resources for businesses can be found here.

Nebraska

  • COVID-19 resources for businesses can be found here.

New York

  • COVID-19 resources for businesses can be found here.

North Carolina

  • COVID-19 resources for businesses can be found here.

Pennsylvania

  • The Governor’s office has issued several COVID-19 guidances related to worker safety, manufacturing, building safety, and construction.

Tennessee

  • COVID-19 resources for businesses can be found here.

Virginia

  • COVID-19 resources for businesses can be found here.
  • The average medical payment per claim decreased 13% after the state implemented a workers compensation medical fee schedule in 2018, according to study details released by the WCRI.

Wisconsin

  • COVID-19 resources for businesses can be found here.

 

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

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

 

Legal Corner

FMLA
ABA’s summary of 2019 FMLA decisions

Each year, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from November 1, 2018 through October 31, 2019 in a user-friendly manner.

 

Workers’ Compensation
“Borrowed servant” provisions prevent temporary worker’s tort action against employee – Georgia

In Sprowson v. Villalobos, Waste Pro USA entered into a contract with Labor Ready for providing temporary employees to perform work under Waste Pro’s general or direct supervision. A temporary employee was working on a sanitation truck driven by a Waste Pro employee when he was pinned between the truck and a tree. He received comp benefits from Labor Ready and filed tort action against Waste Pro and the driver of the truck.

A judge dismissed the case against Waste Pro, noting it was barred by the exclusive remedy provisions, but allowed the case against the driver to proceed. The Court of Appeals found that the driver was “an employee of the same employer” and, thus, was protected by the exclusive remedy provisions. The court explained that even if the worker works for a different employer, when he is a “borrowed servant,” he is the co-employee of the borrowing employer’s regular employees, even though temporarily.

 

Case to watch: Worker who died from COVID-19 sues Walmart – Illinois

The family of a Walmart worker who died from complications of COVID-19 is suing the retailer in Estate of Wando Evans vs. Walmart, Inc. Four days after her death, another employee at the Chicago area store died of complications from COVID-19 and other employees exhibited symptoms. The case alleges that the retailer failed to cleanse and sterilize the store, failed to adhere to social distancing guidelines, failed to provide proper PPE, failed to notify employees of known cases, failed to follow OSHA and CDC guidelines, failed to provide employees with soap and wipes, failed to train personnel to minimize threat of COVID-19, failed to monitor employees for symptoms, and hired by phone without verifying they did not have the virus.

 

Additional evidence allowed to support claim of mental injury – Missouri

In Department of Transportation v. Labor and Industrial Relations Commission, a worker for the Department of Transportation (DOT) worked for more than 20 years responding to accident scenes. Her case went through several appeals and ultimately the Supreme Court vacated the finding of compensability, noting that the wrong standard was applied to determine if the work-related stress was “extraordinary and unusual.”

The case was remanded with the directive to review the case against the proper standard, “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.” In turn, the worker filed a motion to submit additional evidence and the DOT filed a request for writ relief, which was denied by the courts.

 

High court denies benefits for injury at doctor’s office – Missouri

In Schoen v. Mid-Missouri Mental Health Ctr., a charge nurse had a reaction to an insecticide that was sprayed around air conditioning units to control ants. The health center sent her to a physician for an evaluation. As she was being escorted by the doctor to a pulmonary function test, the doctor tried to divert a dog and accidentally tripped the nurse. She fell and allegedly sustained permanent injuries to her knees, lower back, hip, and neck, although the physician completed his exam and found she could return to regular duty.

The case made its way to the Supreme Court. Although the employee argued that her tripping injuries were the natural consequence of her cypermethrin exposure, the Court found that the risk of being tripped accidentally was a risk to which she was equally exposed outside of her employment.

 

Future wage replacement benefits denied because of misrepresentation – New York

In Matter of Teabout v. Albany County Sheriff’s Dept., an appellate court confirmed a WCLJ’s and WC Board’s ruling that an employee could not receive future wage replacement benefits because she had misrepresented her work activities and failed to disclose important information to the examining physician. The worker had sustained a foot injury and received a permanent total disability classification. However, while she denied working following the injury, she was running a photography business.

Further, she had denied any psychiatric history prior to her work accident, as well as any family psychiatric history. Based on those denials, the treating physician diagnosed adjustment disorder with a depressed mood that was causally related to her 1997 injuries. However, later the physician received medical records that revealed a strong history of psychiatric issues.

 

Traveling employee rules lead to benefits for traumatic brain injury – New York

In Matter of Wright v. Nelson Tree Serv., an appellate court affirmed a decision by the Workers’ Compensation Board that awarded benefits to a worker who suffered a traumatic brain injury in a motor vehicle accident. The tree service worker was assigned to various locations, sometimes over six hours from his home when he opted to stay at a local hotel for the workweek. He was paid a per diem for food and lodging.

He and his coworkers would drive from the hotel to the same parking lot to pick up a bucket truck and proceed to the designated work site. En route to the parking lot, he was seriously injured. While a WCLJ found the injury was not compensable, the Board reversed and the Appellate Court agreed. It applied the traveling employee exception, where injuries may be compensable even if the employee at the time of the accident was not engaged in the duties of his or her employment, provided that the employee was engaged in a reasonable activity.

 

Traveling employee’s fall in hotel laundry room not compensable – North Carolina

In McSwain v. Industrial Commercial Sales & Serv., LLC, a worker was part of a crew working on a project in California. They finished a day early, but the company opted not to change their flight due to the high cost. On the day off, one worker started a load of laundry then joined his coworkers on the patio for some drinks. When he returned to retrieve his laundry he slipped on a wet spot and fell in the hotel lobby and filed a WC claim.

The Court of Appeals upheld the denial of the claim. While the court noted that when employees are required to stay overnight away from home, they are treated as being within the course of their employment for the duration of the trip “except when a distinct departure on a personal errand” is shown. Doing the laundry was not considered a personal need, such as eating a meal.

 

Court overturns worker’s reinstatement petition – Pennsylvania

In Communication Test Design v. WCAB (Simpson), the Commonwealth Court held that a WCJ erred in granting a worker’s reinstatement petition and awarding unreasonable contest fees. The employer accepted liability for medical bills for an eye laceration. Soon after the company began paying disability benefits, it stopped and denied that the employee suffered a work injury.

The worker argued the company failed to issue a notice that it was stopping its payment of benefits within five days after the last payment of temporary compensation. However, the court found that there was no evidence to prove this and the act provides no remedy for non-compliance. Moreover, the worker had never established disability prior to the filing of the Reinstatement Petition and it was his burden to establish his right to reinstatement. The court noted, the employer not only contested the Reinstatement Petition, but it also proved that the worker did not suffer a disability. Accordingly, the WCJ erred by awarding unreasonable contest fees.

 

Injuries not compensable caused by “Act of God” – Virginia

In Sylvia Martin v. Virginia Beach Schools and Corvel Corp., a school security guard fell when a gust of wind suddenly caused a metal gate, through which she had just passed, to close behind and strike her. The guard, who was on work restrictions from an earlier fall, filed a claim more than four months after the second incident, asserting that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand, and right hand.

The Workers’ Compensation Commission denied the claim and the appeals court affirmed. Applying the “risk test,” the Commission noted that she did not face a risk that was any greater than the public at large. The fall was caused by a natural wind force which, standing alone, had to be considered an “act of God.”

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

OSHA watch

Recent fines and awards

Florida

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

Georgia

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

Illinois

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

Missouri

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

Virginia

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

Wisconsin

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

For more information.

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

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

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

Some of the updates include:

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

 

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

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