Overcoming the opioid crisis in the workplace

The national crisis of the misuse of and addiction to opioids echoes in the workplace every day. A National Safety Council (NSC) poll, estimates that over one-quarter of the U.S. workforce is using opioids. The costs to employers are well documented – increased absenteeism, lower productivity, higher health care costs, more occupational injuries, fewer skilled workers who can pass drug tests, and increased workers’ compensation costs. A recent study by the Kaiser Family Foundation found that large employers experienced a sharp increase in costs for treating opioid addiction and overdoses among their workers, rising from $646 million in 2004 to $2.6 billion in 2016.

While the workers’ comp industry has made significant progress in limiting opioid prescriptions for acute pain, much work remains to be done. According to a new workers’ compensation drug trend report from Optum, forty-nine percent of injured workers receiving a prescription drug were taking an opioid in 2017, a figure that was about four percentage points lower than in 2016.

Although each workplace has its own challenges, an assessment of a company’s efforts to combat the opioid problem should focus on three areas:

  • Reducing or eliminating initial opioid usage for recently injured workers
  • Helping injured workers who have become long-term users wean off of opioids
  • Prevention – preinjury support

Reducing or eliminating initial opioid usage for recently injured workers

While efforts to curb opioids in workers’ comp vary significantly by state, customized formularies, utilization management and clinical programs, legislative action including limits on initial opioid prescriptions for acute pain, and claims professional education, have collectively worked to reduce opioid prescriptions for pain. Some states are requiring alternative approaches. In Ohio, for example, residents with work-related back injuries are now required by law to try remedies such as rest, physical therapy or chiropractic care before surgery or opioids.

Employers, too, play a powerful role in preventing the development of opioid addiction. Educating workers about the dangers of opioids may prompt injured workers to forego opioids altogether rather than accepting an initial short-term prescription. Monitoring opioids prescriptions by receiving alerts when they are prescribed and setting limits can ensure that guidelines are followed. Intervening early and ensuring that injured workers have a clear path for getting back to work helps control the fear of pain, which leads to avoidance behavior.

Physicians, who can clearly explain the advantages of alternative treatments and the dangers of addiction, as well as gain the workers’ trust, will be effective in facilitating a return to work without reliance on pain meds. Utilizing nurse case managers can provide valuable interaction with physicians and can help injured workers manage their pain, recover, and avoid opioid dependency.

Training supervisors and managers to identify workers who struggle with pain or are at greater risk for dependence will trigger a need for early intervention and behavioral programs that focus on pain management through employee engagement and resilience. Unsupportive supervisors who intimidate workers by insisting they work through the pain or ignore the problem may disrupt the recovery.

The process takes planning and must be geared to the individual. Effective change comes when workers understand the benefits of non-drug pain therapies and buy into the solution. There are some workers who will want immediate relief, the hallmark of pain meds. Others may not want to exert the effort or time involved in physical therapy, acupuncture, exercise, or yoga, and others may be skeptical of mindful therapies. It’s the employer’s role to foster trust, provide support, and help motivate the employee.

Helping injured workers who have become long-term users wean off of opioids

While averting opioid dependency in a new workers’ comp claim is no easy task it’s tenfold more difficult in legacy claims tied to long-term opioid prescriptions. There are many barriers to successfully resolving long-term claims that involve chronic opioid usage:

  • The treating physician doesn’t buy into alternatives and won’t suggest them to a patient
  • There aren’t enough physicians who have adequate training on pain management and opioid prescribing
  • There’s attorney involvement
  • The worker is in a vicious cycle of drugs trying to manage the pain – the worker hasn’t slept, has anxiety, depression or nausea, and takes other pills alongside their Vicodin or OxyContin to repress those side effects
  • The prospects of returning to work seem slim and the worker has psychosocial factors such as depression, hopelessness, and hostility
  • The worker is focused on pain and unwilling to quit or reduce their pain medications
  • Medicare set-asides allows comp claims to close with cash set aside to pay for future drugs – often strong doses – with little oversight

Although these barriers are daunting, there is promise in a recent report released by California’s Workers’ Compensation Insurance Rating Bureau. The report, Study of Chronic Opioid Use and Weaning in California Workers’ Compensation, showed nearly half of the study claims with employees demonstrating chronic opioid usage (11 months from the date of injury) weaned off of opioids completely within 24 months from the date of injury. The weaning process typically involved a gradual decrease in opioid prescriptions combined with a mix of alternative non-drug treatments and non-narcotic drugs.

Vital to success is the adjuster who must remain involved throughout the process. It begins with knowing how to look at the data, not only to identify claims where opioid usage costs are high, but to identify trends. What types of injuries are involved? Do they occur in the same department or under the same manager? Can they be linked to certain physicians? Chronic use of opioids extends disability, and data analysis is critical to building a plan.

The adjuster must be familiar with and open to evidence-based innovative treatment options and understand how best to work with the injured worker. The program’s success also relied upon peer-to-peer conversations with the prescribing physicians and developing a program specifically aimed at helping workers cope with significant chronic pain. It demonstrates that a well-designed, carefully managed program with the focus on the individual can work.

The increased awareness around the epidemic has improved the possibilities of success with legal action, as indicated by a recent decision of the West Virginia Supreme Court. In Grinnan v. West Virginia Office of Insurance Commissioner, the court ruled unanimously that a carpenter was not entitled to continued treatment with OxyContin for a 26-year old back injury. However, legal action should be viewed as a last resort because of the time, money, and hostility involved.

Prevention – preinjury support

In the past, opioids were often prescribed for musculoskeletal injuries, effectively masking the pain but doing nothing to treat the injury. Ensuring good ergonomics in work place design and processes and ensuring that workers can handle the physical demands of their job is a good first step. Listening to workers who have minor pain and providing the support to minimize it, will help prevent costly claims.

Drug policies should be reevaluated to identify the situations where testing makes the most sense as well as what tests should be used. Screening for prescription drug use, illicit drug use, and adherence to legitimate opioid medications is a sound approach to mitigate risk. Working with legal counsel, the employer should decide what testing is warranted for pre-employment screening, pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.

Legitimate claims from workers who already are using opioids are among the most difficult to resolve. A recent article on lexisnexis.com by Thomas Robinson notes that a study to be published by the Journal of Occupational and Environmental Medicine supports the widely-held notion that pre-injury opioid and benzodiazepine use may increase the risk and cost of disability after a work-related injury.

Prevalence of compensable claims was higher among cases with pre-injury opioid use compared to cases without such pre-injury use (28.6 percent vs. 19.5 percent) and prevalence of post-injury opioid use was higher among claims with pre-injury opioid use compared to cases without such pre-injury use (67.2 percent vs. 22.8 percent). Train supervisors and managers how to identify the signs of drug abuse, the steps to take if abuse is suspected, and the legal issues involved. It is in the best interest of the employer to provide support and confidential access to treatment.

Proactive employers are also altering health plans to restrict the use of prescription opioids. The Surgeon General urges employers to ensure that health providers are following the Centers for Disease Control and Prevention (CDC) guidelines, “Use your levers on the health care delivery side.” He notes that dental prescriptions for opioids is the first step for many toward addiction. “If you tell your employees and their families that you’re not going to pay for more than 10 pills if they go to the dentist, that will have a quicker impact than anything I can do as surgeon general to educate the prescribers in the community.”

While the path to finding effective treatment of choice can be long, difficult, and expensive, doing nothing can be costlier to the employer and devastating for the worker.

Note: NCCI is doing a series exploring three viewpoints on issues surrounding opioid use and workers’ compensation: those of doctors, insurers, and workers compensation regulators.

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

Things you should know

Cell phone users twice as likely to be involved in a crash – study

The AAA Foundation for Traffic Safety compared drivers’ odds of crash involvement when using a cell phone relative to driving without performing any observable secondary tasks. The study found that “visual-manual interaction with cell phones while driving, particularly but not exclusively relative to text messaging, was associated with approximately double the incidence of crash involvement relative to driving without performing any observable secondary tasks.”
Health care environment named top concern in comp – survey

The National Council on Compensation Insurance (NCCI) surveys senior carrier executives in its annual Carrier Executive Pulse. The top challenges that executives identified for 2018 are:

  1. Rising costs, advances, and uncertainty in healthcare
  2. Political, regulatory, legislative, and legal environment
  3. Maintaining profitability both today and tomorrow
  4. The changing workplace and workforce
  5. The future of the workers’ compensation industry
  6. Opioid abuse and medical marijuana

Impact of worker obesity can be managed with prevention, treatment programs: ACOEM

Wellness programs and insurance coverage that includes bariatric surgery can help manage worker obesity and alleviate its economic costs to employers, according to a released guidance statement from the American College of Occupational and Environmental Medicine (ACOEM).
First Edition of NCCI’s court case update

The first edition of NCCI’s Court Case Update provides a look at some of the cases and decisions being monitored by NCCI’s Legal Division, that may impact and shape the future of workers’ compensation.
New guidelines intended to reduce fatigue among EMS workers

The University of Pittsburgh Medical Center and the National Association of State EMS Officials have partnered on a set of guidelines aimed at reducing work-related fatigue among emergency medical services workers.
State News

California

  • Cal/OSHA adopted a new rule to help reduce injuries for hotel housekeepers. The rule will require employers to establish, implement, and maintain an effective written musculoskeletal injury prevention program that addresses hazards specific to housekeeping.
  • The Division of Occupational Safety and Health is moving to create a new safety standard to prevent and handle workplace violence for general industries.
  • The state is drafting workplace safety rules for the burgeoning marijuana industry.

New York

  • State Workers’ Compensation Board is inviting public comment on a proposed Pharmacy Formulary. The comment period expires on February 26, 2018.

North Carolina

  • Industrial Commission recently announced an update in the rules for the workers’ compensation system addressing the opioid crisis. Published January 16, 2018, in Volume 32 Issue 14 of the North Carolina Register, the rules are for the utilization of opioids, related prescriptions, and pain management treatment. A public hearing is scheduled for March 2, 2018 at 2:30 p.m., and the Commission will accept written comments until March 19, 2018.

Pennsylvania

  • The Governor signed a statewide disaster declaration related to the opioid crisis to enhance state response, increase access to treatment, and save lives. It will utilize a command center at the Pennsylvania Emergency Management Agency to track progress and enhance coordination of health and public safety agencies.

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

OSHA and EEOC regulatory updates and enforcement stats on first year of Trump administration

OSHA

Rule and policy status

  • Maximum penalties for violations increased to adjust for inflation as of Jan. 2, 2018.OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.
  • General industry compliance date for Beryllium Standard – March 12, 2018
  • General industry compliance date for Silica rule – June 23, 2018
  • Certification of crane operators – Nov. 10, 2018
  • Elements of Walking-Working Surfaces & Fall Protection – Nov. 19, 2018
  • Rewrite of Lockout/Tagout (LOTO) remains active in the final rule stage under the Standards Improvement Project to make non-controversial changes to confusing or outdated standards. The proposal is to remove “unexpected energization” language from the standard.
  • Injury Data Electronic Submission. OSHA is working on a draft of a Notice of Proposed Rule Making (NPRM) to “reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule. While July 1, 2018 remains the deadline for the next data submission, OSHA recently changed its website to read: “Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time.” Pundits are speculating that changes will include increasing the thresholds for high hazard industries and small employers, limiting submission to Form 300A, and eliminating the Anti-Retaliation provisions.
  • There has been no pullback in the criminal prosecution of employers for willful violations that result in a fatality. A.G. Sessions has not archived the Yates memo, which was issued under the Obama administration and expanded individual accountability for corporate wrongdoing and encouraged use of the tougher environmental statutes. Many expect continued criminal prosecutions.
  • There has been a shift away from the enforcement-heavy philosophy of the Obama administration and an increase in compliance assistance programs and alliances. NBC News recently reported that the number of OSHA inspectors fell 4 percent over the first nine months of 2017; 40 inspectors had left the agency and not been replaced. Impact varied by region, with the Southeast region losing 10 inspectors and experiencing a 26% decline in inspections in the first eight months of the Trump administration. However, inspections in 2017 did increase overall.
  • To date, there has been no change to the expanded scope of the Obama administration’s repeat violation policies. However, this should be watched as many expect a return to the treatment of individual, independent workplaces rather than an umbrella corporate approach and a lookback period of three, rather than five years.
  • There is an effort underway to revitalize the Voluntary Protection Programs (VPP).
  • There was a significant shift away from public shaming. Only 45 press releases related to fines were published in 2017, compared to an average of 463/year for the previous five years. (Conn Maciel Carey L.L.P.)
  • Even though Fed OSHA is reducing the emphasis on enforcement, some state OSH programs, such as California, are increasing enforcement.

Enforcement stats

A recent webinar by the law firm, Washington-based Conn Maciel Carey L.L.P. took a look at OSHA enforcement action in 2017 and the results may surprise you:

  • While the number of OSHA inspections declined each year from 2012 to 2016, they increased 1.4% from 31,948 in 2016 to 32,396 in 2017
  • The number of violations issued has declined since 2010. Between 2016 and 2017, the number of violations declined from 59,856 to 52,519 or 12.2%
  • The percentage of inspections that resulted in no citations issued has remained relatively stable – between 23% and 27%
  • The average penalty per serious violation was $3,645 in 2017, up from $3,415 in 2016
  • The cases with proposed penalties of $100,000 of more jumped dramatically from 154 in 2016 to 218 in 2017, but million-dollar cases fell from an average of 8.4 per year to 6 in 2017
  • The number of repeat violations dropped from 3,146 in 2016 to 2,771 in 2017

 

Equal Employment Opportunity Commission

Rule and policy status

  • The U.S. District Court for the District of Columbia has vacated the EEOC’s wellness rule effective Jan. 1, 2019, instructing the agency that its goal of revising the rule by 2021 is too slow
  • The Obama rule for large companies to report wages by race and gender on the EEO-1 form was stayed by the Office of Management and Budget in August 2017, except for the new March 31 filing deadline. Covered employers must file their 2017 Form EEO-1 no later than March 31, 2018 and the snapshot period used to compile data should be one pay period during the period from October 1, 2017 to December 31, 2017
  • A pullback on efforts to expand Title VII to cover sexual orientation and gender identity discrimination is expected

Enforcement stats

  • Retaliation charges accounted for the largest number of charges (41,097) filed in fiscal year 2017 for the seventh consecutive year and represented 48.8% of all charges
  • While the overall number of charges filed declined by 7.9%, there was only a slight decline in retaliation charges
  • Following retaliation, race was the second most frequent charge filed with the agency in fiscal year 2017 (28,528) – 33.9% of the total. This was followed by disability, 26,838, or 31.9% of the total; sex, 25,605, or 30.4% and age, 18,376, or 21.8%.
  • The agency also received 6,696 sexual harassment charges and obtained $46.3 million in monetary benefits for victims of sexual harassment

According to the 14th annual Workplace Class Action Litigation Report issued by Chicago-based law firm Seyfarth Shaw L.L.P, key 2017 trends were:

  • The monetary value of top workplace class action settlements rose dramatically, with the top 10 settlements in various employment-related class action categories totaling $2.27 billion, an increase of more than $970 million from 2016’s $1.75 billion
  • Evolving case law precedents and new defense approaches resulted in better outcomes for employers in opposing class certification requests
  • There was no “head-snapping pivot” in filings and settlement of government enforcement litigation despite the change in administration. In fact, government enforcement litigation increased in 2017
  • Several key U.S. Supreme Court rulings over the past year were arguably more pro-business than past year’s decisions

Despite the change in the administration and the Trump deregulatory agenda, the enforcement stats suggest workplace issues are still a high priority for OSHA and the EEOC. Some speculate this will change when new leadership is fully in place. Others suggest that significant enforcement will continue since the language and requirements of the Occupational Safety and Health Act make deregulation difficult without legal challenges and even if the risk of being subjected to systemic EEOC litigation lessens, employers who do not have robust and effective anti-discrimination and anti-harassment policies and practices will remain at significant risk of litigation from private attorneys.

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

Things you should know

Fatal work injuries reach highest level since 2008

Workplace fatalities increased for the third year in a row in 2016, according to the U.S. Bureau of Labor Statistics, rising to 5,190, a 7% increase from the 4,836 fatal injuries reported in 2015. Double-digit increases were reported in workplace violence and overdose fatalities.

Work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 2,083 fatalities, or 40% of the overall total. But violence and other injuries by persons or animals increased 23% to 866 cases, becoming the second-most common fatal event in 2016. Fatal work injuries from slips, trips and falls were the third-most common fatal event last year.

Texas was the state with the highest number of worker deaths (545), followed by California (376), Florida (309) and New York (272). In all, 36 states experienced increases in deaths due to workplace injuries in 2016.


Operation Airbrake puts 2,700 CMVs out of service for brake-related violations

An unannounced inspection blitz of commercial motor vehicles resulted in 14 percent being placed out of service for brake-related violations, according to the Commercial Vehicle Safety Alliance. On Brake Safety Day, which took place Sept. 7, CVSA inspectors checked 7,698 trucks and buses in the United States and Canada. The inspections resulted in 1,064 vehicles being taken out of service for brake violations and 1,680 (22 percent) for other infractions.


New video for tower workers: Safe use of snow-tracked vehicles

A new video highlights the proper operation of snow-tracked vehicles when accessing remote tower locations.


NIOSH withdraws proposed rule on respirator leakage standards

NIOSH has withdrawn a notice of proposed rulemaking that would have established standards for total inward leakage of half-mask air-purifying particulate respirators. According to NIOSH, the public comment period produced enough evidence to convince the agency to rescind the notice.

 

 

State News

California

  • A new law lowering the corporate officers’ ownership threshold for opting out of work comp coverage to 10%, from a current 15%, will be effective July 1.
  • The closed drug formulary for workers’ compensation will be updated quarterly by a committee of three doctors and three pharmacists who will meet several times a year, according to the Division of Workers Compensation.
  • The Department of Industrial Relations announced 376 workers died on the job in 2016, down slightly from 388 deaths in 2015 but still higher than the most recent low of 344 in 2014.

Florida

  • The Office of Judges of Compensation Claims reported that claimants’ attorney fees increased 36% in the latest fiscal year, following the state Supreme Court’s April 2016 decision in Castellanos v. Next Door Co., which reinstated hourly fees for claimants’ attorneys.

Illinois

  • Medical payments per workers compensation claim were 24% higher than the median for other states examined in a new study by the Workers Compensation Research Institute (WCRI).

Kansas

  • In 2016, there were 74 fatal work-related injuries according to the Census of Fatal Occupational Injuries (CFOI), 50% of which were transportation incidents.

Michigan

  • Workers’ compensation medical payments are among the lowest in the country, according to a WCRI study medical payments per claim, limited to 2.2% per year, due in part to lower prices paid for professional services as well as lower payments per service for hospital outpatient services.

Missouri

  • The Department of Insurance is recommending a 3% decrease in workers’ compensation insurance loss costs for 2018, on top of a 4% decrease that took effect on Aug. 1.

Minnesota

  • Minnesota experienced 92 workplace fatalities in 2016, a 24.3% increase over the prior year and 48.3% above the 2015 rate. Agriculture, forestry, fishing and hunting accounted for the most deaths, followed by construction.
  • The Workers’ Compensation Assigned Risk Plan has issued a notice regarding rates for new and renewal policies, effective Jan. 1 through March 31. Because certain classification codes have been eliminated and two new classification codes created, MWCARP is publishing new rate pages, effective Jan. 1. The eliminated classification codes are 1655, 1853, 3175, 3223, 4053, 4061, 4101, 6017, 7228, 7229 and 9149.The new classification codes are 7219 and 7225.

Mississippi

  • Workers die on the job at a rate double that of the national average, according to the National Employment Law Project. The national average is 3.4 deaths per 100,000 workers, while Mississippi’s rate is 6.8, the fourth highest number in the country for 2015, behind North Dakota’s more than 12, Wyoming’s 10 and Montana’s 7.5. The leading fatal work injuries by occupation were 35% for transportation/material moving and 17% for construction/extraction.

New York

  • Gov. Andrew Cuomo has signed legislation that will require workers’ compensation insurers to notify policyholders 30 days before hiking their renewal premiums by more than 10%.
  • The medical share of total workers’ compensation benefit costs dropped to 37% in 2015 and 2016 from a high of 42% in 2007, while the national average is 51.4%, according to a report by the New York Compensation Insurance Rating Board.

North Carolina

  • Medical payments per workers compensation claim decreased 6% per year from 2013 through 2015, according to the WCRI, likely due to fee schedule rules.
  • The Industrial Commission reminds stakeholders of a new employee misclassification statute that went into effect Dec. 31.

Pennsylvania

  • Acting Insurance Commissioner Jessica Altman has approved an emergency loss cost increase of 6.06%, effective Feb. 1, in response to the state Supreme Court’s Protz decision.

 

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

Legal Corner

FMLA
Employee can be terminated for unexcused absences while entitled to FMLA absences

In Bertig v. Julia Ribaudo Healthcare Group, a nurse was certified for FMLA leave for cancer and asthma. Her employer, a local hospital, had a policy that employees are subject to termination when they accrue seven absences in a rolling 12-month period. She incurred a total of 13 intermittent absences in a 12-month period, only three of which were related to her cancer or asthma.

The hospital had thoroughly documented the reasons for each absence, made its expectations clear, and the nurse acknowledged most of her absences were not related to her cancer or asthma. The court found that she was properly terminated.

Workers’ Compensation
Exclusive remedy does not bar suit against employer under Insurance Fraud Prevention Act (IFPA) – California

In The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al., the 4th District Court of Appeals’ Second Division allowed a workers’ IFPA claim to proceed, noting the act contains qui tam provisions, which allow private citizens to file civil suits on behalf of the state. In this case, an employee argued he suffered a legitimate workplace injury, but his supervisor lied on the reports causing the claim denial. While the company argued that the suit was barred based on the litigation privilege of a workers’ compensation proceeding, the Court of Appeal reversed and found in favor of the worker, holding that the IFPA is an exception to the litigation privilege.

Exclusive remedy doesn’t protect supervisor from assault claim – California

In Lee v. Lang, three employees of the Christian Herald filed suit against the director of the publication for multiple wage-and-hour violations and one asserted claims for assault, battery and the intentional infliction of emotional distress. The Court of Appeals reversed in part the judgement in favor of the director, noting “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.”

Injuries in vanpool accident limited to workers’ comp – Illinois

In Peng v. Nardi, a buffet restaurant provided a 15-passenger van for workers, which an employee drove and was paid for his driving duties. He wasn’t allowed to use the vehicle for personal errands and he was not allowed to let anyone else drive. A passenger suffered a pelvic fracture in an accident and filed a negligence suit against her co-worker and the other two drivers involved in the accident.

While the court noted accidents when an employee is traveling to or from work generally are not treated as occurring within the course of employment, there is an exception when the employer provides a means of transportation or controls the method of the worker’s travel. Although the injured worker was not required to use the van, she relinquished control over the conditions of transportation and, thus, the exclusive remedy of workers’ comp applies.

No loss of wage earning capacity means no benefits – Mississippi

In Pruitt v. Howard Industries, a worker suffered a back injury, received conservative treatment, and returned to work without restrictions in the same plant, with the same job title, and a higher wage. He filed for PPD benefits, but was denied. The Court of Appeals explained that except for scheduled-member cases, indemnity benefits are made for diminished wage-earning capacity and not medical impairment.

Heart attack not accident and not compensable – Missouri

In White v. ConAgra Packaged Foods, a long-term machinery worker collapsed and died on a particularly hot day in the machine shop, which was not air-conditioned. His widow filed a claim for benefits, asserting that his death was the result of heat stroke and/or his physical exertions in the machine shop. While it was acknowledged that the worker had high cholesterol, hypertension, and other risk factors for a heart attack, the question was whether work activities were the prevailing factor that caused the fatal heart attack.

After two denials, the Court of Appeals awarded benefits to the widow, but the Supreme Court reversed. It noted that the worker’s death must have been caused by an “accident.” An accident is defined as an unexpected traumatic event or an unusual strain that is identifiable by time and place of occurrence and that produces objective symptoms of an injury. Further, the law provides that a cardiovascular event is an injury only “if the accident is the prevailing factor in causing the resulting medical condition.”

Long-term exposure to dust leads to PTD benefits – Nebraska

In Moyers v. International Paper Co., a worker suffered respiratory problems over his 42- year employment at a paper company. When a pulmonologist suggested he stop working, he filed for comp. The court found he had a compensable occupational disease and referred him to a vocational counselor who opined that his breathing problems would prohibit working. He was found to be permanently and totally disabled by his occupational disease and this finding was upheld by the Court of Appeals.

Fall while in line for security log in and pass compensable – New York

In Hoyos v. NY-1095 Avenue of the Americas, a worker for a subcontractor slipped and fell off an elevated loading dock while standing in line with other workers at a security check point to obtain a pass to enter the building and get to his job site. Four feet off the ground, the loading dock had no guardrails, chain, rope or other indication where its platform ended and the ledge began.

The court found that even though the worker was not working at the time, he was following the rules of the contractor and had no alternate place to check in. Refusal to treat that spot as a “construction site” under the circumstance of the case would place an “unintended limitation” on the scope of Section 240(1).

Comp claim for PTSD upheld for claims adjuster – New York

In Matter of Kraus v. Wegmans Food Markets, the company had an internal policy that was unpopular with union drivers regarding no-fault benefits. Claims that arose out of a motor vehicle accident were automatically assigned to a workers’ compensation claims service provider that administered the employer’s no-fault claims, but claims that involved the use or operation of a motor vehicle, however, were not.

The in-house adjuster received threats from unionized drivers and was known to be inconsistent in applying the policy, which contributed to his termination. He filed a workers’ comp claim, asserting he had suffered a psychiatric injury from the stress caused by the drivers’ threats and accusations of dishonesty. The case went through several appeals and the Appellate Division’s 3rd Department found he was entitled to benefits for PTSD, noting he was in “an extremely stressful and untenable situation” because of his employer’s “questionable” no-fault policy.

Civil case settlement does not bar workers’ comp claim – North Carolina

In Easter-Rozzelle v. City of Charlotte, the Supreme Court overturned a state appeals decision that questioned whether a worker who sues a third party gives up the right to comp. The case involved a city employee who suffered a work-related injury and was in a serious car accident on his way to a doctor’s appointment to obtain an “out of work” note. He settled his civil suit and the case to continue to collect comp worked its way through a series of appeals.

Ultimately, the Supreme Court ruled that pursuing a third-party action does not affect a worker’s ability to bring a comp claim. The law does not require that an employer consent to the worker’s settlement of a third-party action, and the city is entitled to reimbursement of its lien from benefits due to the worker per state law.

Two-year jurisdiction rule includes out-of-state medical care – North Carolina

In Hall v. United States Xpress, Inc., payments to out-of-state medical care providers meet the criteria that a claim must be filed within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established. The injured worker met the “no other compensation has been paid” criteria since the benefits he had received, which exceeded $8 million in medical care, were provided under Tennessee’s-not North Carolina’s-Workers’ Compensation Act.

Massage service covered by comp – Pennsylvania

In Schriver v. WCAB (Commonwealth of Pennsylvania Department of Transportation), an injured worker received benefits for treatment of a back injury, including chiropractic services. The chiropractor referred him to a licensed massage therapist within the office, and the worker paid $60 for each massage session, but requested reimbursement. The case made its way to the Commonwealth Court, which reversed lower decisions denying payment for the massage services. It noted workers’ comp obligates an employer to provide payment for all reasonable services that an injured employee receives from “physicians or other health care workers,” including chiropractors and their employees or agents.

Earning power, not employment, determines reduction in benefits – Pennsylvania

In Valenta v. WCAB, a worker was collecting total disability benefits for a back and shoulder injury. The former employer’s comp carrier ordered a labor market survey (LMS) and earning power assessment (EPA) performed and six available jobs were identified. The employer then filed for, and was awarded, a modification of payments.

The Commonwealth Court explained the law does not require a worker be offered a job in order to have “earning power,” but meaningful employment opportunities must be available. The court said failure to be hired did not mean that the positions were not open and available, although the evidence of lack of success was relevant to the issue of earning capacity.

Pressured to quit, employee’s disability claim is upheld – Tennessee

In Alicia Hunt v. Dillard’s Inc., a manager of a makeup counter was denied surgery when her work-related ankle and knee injury did not heal. While working with restrictions, she said her supervisor pressured her to take a lower paying job. She resigned, had surgery, and sought to get her job back, but the company indicated she had voluntarily quit.

A trial court judge’s decision that the worker was pressured to resign and had not had a meaningful return to work at a wage equal to or above her pre-injury wage, was upheld by the Supreme Court. Therefore, she was entitled to permanent partial disability benefits up to six times the medical impairment rating, not, as argued by Dillard’s, the cap of 1.5 times the impairment rating when there is a meaningful return to work.

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

Legal Corner

ADA
Another court decision scales back right to take more leave after exhausting FMLA

Last month, we reported on the 7th US Circuit Appeals decision in the Severson case. That same appellate court recently ruled in Golden v. IHA that extended leave beyond what the FMLA requires is not a reasonable accommodation under the ADA.

In this case, an employee with breast cancer, required surgery and an extended leave. When her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, but her employer declined to grant more than four additional weeks of leave. When she could not return from work after 16 weeks off, she was terminated.

It’s important to note that in both cases the employee’s return to work date was unclear. Employers should conduct an individualized assessment of each leave request to determine whether a leave of absence or intermittent leave is reasonable and effective in helping the employee return to work. There is a split in authority among the courts that the U.S. Supreme Court ultimately may have to resolve.


FMLA

Managers’ inaction can be costly

In Boadi v. Center for Human Development an employee was hospitalized unexpectedly for a mental health condition and her son notified her employer four times over the course of one week, including her supervisor, the supervisor’s boss, and the boss’s boss. Although he explained that his mother was unintelligible, a supervisor told him it was unacceptable for him to call instead of his mother. The same supervisor informed the vice president of Human Resources that the employee was hospitalized and later reported her a “no call/no show” when she failed to personally call about her continued absences. A termination letter was written and when the employee returned with her doctor’s medical certification, she was told her employment had been terminated because she abandoned her job.

During the case, the court specifically commented that the managers were “not trained on the FMLA.” Noting the lack of training, the court found that the employer willfully violated the FMLA, and awarded liquidated damages, which doubled the back-pay award to $300,000.

 

Workers’ Compensation
Comp’s ‘going and coming’ rule determines employer’s vicarious liability – California

In Morales-Simental v. Genentech, the court explained that an employer generally will be held vicariously liable for the tortious conduct of its employees within the scope of their employment. However, case law recognizes that an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee’s torts while traveling. There are some exceptions, but the court found they did not apply and, therefore, the employer could not be held vicariously liable for the alleged negligence of an employee in causing a fatal car accident.


Convicted of fraud, worker still entitled to benefits – California

In Pearson Ford v. WCAB (Hernandez), a worker accidentally slammed a trunk lid on his hand, but did not break any bones. He received workers’ comp for pain and later began wearing a sling and telling his treatment providers that he was unable to use his left arm and hand. A private investigator shot video of him removing his sling after attending doctor’s appointments, using his left hand to drive, carrying groceries, and lifting a washing machine. He pleaded guilty to making materially false statements for the purpose of obtaining workers’ compensation benefits.

Later, a workers’ compensation judge issued, and the Appeals Board approved, an award of permanent partial disability benefits. The court reasoned there was a compensable injury that was not directly connected to the worker’s fraudulent misrepresentation.


Failure to train in lockout/tagout leads to $310,000 settlement – California

Growers Street Cooling has agreed to pay $310,000 in costs and civil penalties, maintain and implement written hazardous energy control procedures, and conduct proper training as a result of legal action brought by the Monterey County District Attorney following a 2013 worker fatality at the Salinas-based produce-cooling company. The worker had been working at the company as a machine operator for only 16 days prior to the accident and was never trained on lockout/tagout procedures. Nor did the company maintain a written lockout/tagout policy or training program; thus, they were charged with systematically violating worker safety laws.


Comp coverage uncertain for off-duty police officers at Las Vegas concert shooting – California

Due to some muddy language in the state’s Labor Code, it is uncertain if municipalities are required or even allowed to pay to treat off-duty police who chose independently to intervene in an out-of-state emergency. Orange County rejected workers’ compensation claims from four sheriff’s deputies injured in the shooting and more claims are expected. More than 200 Southern California police officers attended the Las Vegas concert. Had the incident occurred in California, they would be covered, but the Labor Code makes no mention of out-of-state tragedies.


Employer can terminate benefits when employee returns to “baseline” – Georgia

In EMC v. McDuffie, an employee had a significant disability to his knee at the time he took the job, which he did not disclose, and he suffered a subsequent knee injury when he stepped in a hole while working. The Supreme Court ruled that when an employee has a pre-existing condition that limits work capacity, as soon as the employee recovers from “the aggravation”, the employer’s responsibility for workers’ compensation ceases. The court did not define baseline.

This is an important decision because it’s well established that employers are responsible for an aggravation of a pre-existing condition only until the aggravation ends, but there wasn’t a case that said when an employee still has restrictions, which they had before, the employer is not responsible.


Meretricious relationship results in disqualification of death benefits – Georgia

In Sanchez v. Carter, a state appellate court cited a 1990 decision of the Supreme Court of Georgia, Williams v. Corbett, and found within the context of a workers’ compensation claim, a meretricious relationship does not entitle a dependent to death benefits, even if actual dependency exists. In this case, the couple had lived together for 13 years, but never legally married.


Court reduces award in retaliatory discharge claim – Illinois

Two employees suffered work-related injuries and were fired for failing to report to work after an independent medical examiner (IME) cleared them to return to their jobs. They filed suit, asserting they had been discharged in retaliation for having pursued workers’ compensation claims. The Illinois Appellate Court ruled that an employer may not rely solely on an IME in terminating the employee for failing to return to work or for failing to call in his absences when the opinion conflicts with the employee’s doctor. But, the worker must still prove his discharge was causally related to his exercising of workers’ compensation rights.

The men then filed an amended complaint and pursued separate jury trials. While a jury found in favor of the employer in one case, in Francek v. Dominick’s Finer Foods, the jury awarded $156,315.50 in compensatory damages and $2.5 million in punitive damages, plus court costs to the employee. However, the appellate court concluded that the award of punitive damages was unconstitutionally excessive (16:1) under federal due process standard and concluded that a 9:1 ratio would be appropriate.


Workers’ comp precludes security’s guard personal injury suit – Missouri

In Kayden v. Ford Motor Co., U.S. Security Associates provided security services under a contract for a Ford assembly plant. A security guard slipped and fell in the parking lot, where it was determined a pothole was not repaired properly. After she filed a personal injury suit against Ford, Ford moved for summary judgment, asserting that it qualified as the employer for purposes of the Missouri Workers’ Compensation Act and the court agreed.


Exception to schedule loss of use (SLU) allows apportionment – New York

While generally a judge or board may not apportion a PPD award based upon a preexisting condition that did not prevent the employee from effectively performing his or her job duties at the time of a subsequent work-related injury, apportionment may be applicable if the medical evidence establishes that the prior injury – had it been compensable – would have resulted in an SLU finding. In the Matter of the Claim of Sanchez v. STS Steel, there was medical expert opinion that a non-work related surgical procedure involving the excision of the meniscus right knee would have resulted in a 7.5% SLU; therefore, apportionment was appropriate.


Estate can pursue wrongful death claim – New York

In Assevero v. Hamilton & Church Properties, an employee fell from a ladder and filed a Labor Law action asserting an unsecured extension ladder shifted as he was descending and caused the fall. A trial judge granted summary judgement to the employer, and the employee appealed. While the appeal was pending, the employee died from an overdose of pain medication prescribed for his injuries. The Appellate Division’s 2nd Department overturned the grant of summary judgment for the employer and the estate’s administrator filed a motion to amend the complaint to include a cause of action for wrongful death, which was allowed.


Widow of worker killed by street sweeper awarded $41.5m – New York

The widow of a New York City Department of Sanitation worker killed by an out-of-control street sweeper won a $41.5 million negligence lawsuit. The New York Post reports that a Queens jury recently awarded the sum to the widow for the death of her 43-year-old husband who was struck and killed by a colleague’s vehicle inside a garage in 2014. The city plans to pursue legal options to reduce the award.


Death from accidental overdose compensable – North Carolina

In Brady v. Best Buy Co., an injured worker was taking narcotics to treat his compensable low back injury, additional medication for treatment of depression, and other prescription medications. The Court of Appeals upheld a reward of benefits to the beneficiaries noting the unchallenged finding that pain medications established the death as compensable, regardless of whether his medications for depression had a contributory effect.


Going and coming rule does not bar death benefits in case of donut shop manager – Pennsylvania

In Rana v. Workers’ Comp. Appeal Bd, an employee worked as a manager at one of the employer’s three donut shops, but occasionally was called upon to handle issues at the other two shops. He died in a car crash traveling from his residence to one of the other shops to potentially fill in for a kitchen employee who had fallen ill during a work shift. The court found that the manager was a traveling employee and, therefore, his dependent’s death benefits claim was not barred by the going and coming rule. It also noted even if he was considered a stationary employee, the claim would still be compensable, since he was engaged in a special assignment on behalf of the employer.


Commonwealth Court overturns denial of benefits based on ‘going and coming’ rule – Pennsylvania

In Fields v. WCAB (Carl G’s Total Cleanouts), an employee had been working at the same job site doing demolition work for two or three weeks. He and a colleague took a company truck to drop off debris at a scrapyard (they received a percentage of the metal hauled as part of wages) and then the colleague planned to drop the employee at home and return the truck to the employer. En route, the employee sustained injuries in an auto accident. A workers’ compensation judge determined, and the Workers’ Compensation Appeal Board affirmed, that he had a fixed place of work, and the accident occurred during his commute home from the workplace, and was not compensable under the going and coming rule.

Upon appeal, the Commonwealth Court noted exceptions to the going and coming rule include when a worker’s employment contract includes transportation to and from work; when the worker has no fixed place of work; when the worker is on a special mission for his employer; or when the worker’s travel is furthering the business of the employer. While the lower courts focused on the fixed place of employment, the facts supported a legal conclusion that he was furthering his employer’s business when he was injured – to dispose of the material the crew had cleaned out of the job site.


Witnessing workplace shooting caused PTSD – Tennessee

In Evans v. Alliance Healthcare Services, a bus driver was transporting a counselor to a patient’s home in response to a call from the patient’s brother. As they entered the house, the patient shot the counselor. While the counselor survived the attack, the bus driver received mental health care through workers’ compensation but she did not return to work.

The company acknowledged that the shooting initially may have caused the PTSD, but asserted the continuing mental health problems were caused by other events. The trial court disagreed and found she was permanently and totally disabled and that the shooting incident was the cause of her disability. This was upheld by the Special Workers’ Compensation Appeals Panel of the Supreme Court.

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

Important takeaways from recent studies and reports

Strategies to reduce costs and risks of musculoskeletal disorders

A report by the Northeast Business Group on Health (NEBGH) urges employers to look at their own experiences with claims, disability, workers’ compensation and health risk assessment data to best prioritize program selection and implementation to better manage MSDs. It addresses several strategies to mitigate cost and health issues and suggests using onsite ergonomics training, online courses on the subject and workplace redesigns. It also suggests new approaches to treatment, such as online pain education, direct access to physical therapy by bypassing physician referrals, and directing employees away from “unnecessary diagnostic imaging and expensive visits to specialists.” Finally, the report examined ways to ensure that if surgery is needed, that the care is performed in an efficient and cost-effective way.

Obesity and worker productivity by occupational class

The Journal of Occupational and Environmental Medicine has published a new study, “Impact of Obesity on Work Productivity in Different US Occupations: Analysis of the National Health and Wellness Survey 2014-2015”, which examines the impacts of obesity by different occupational classes on work productivity and indirect costs of missed work time.

BMI results were as follows:

  • Protective Services: 38% overweight, 39% obese
  • Transportation: 38% overweight, 36% obese
  • Manufacturing: 35% overweight, 30% obese
  • Education: 31% overweight, 30% obese
  • Healthcare: 31% overweight, 30% obese
  • Construction: 38% overweight, 29% obese
  • Hospitality: 32% overweight, 27% obese
  • Arts: 34% overweight, 26% obese
  • Finance: 36% overweight, 25% obese
  • Computer: 36% overweight, 25% obese
  • Legal: 38% overweight, 24% obese
  • Science: 37% overweight, 21% obese

The researchers concluded that there was a positive association between work productivity impairment and increases in BMI class that varied across occupations. Obesity had the greatest impact on work productivity in construction, followed by arts and hospitality, and health care occupations. Work impairment was least impacted by increases in BMI in Finance, Protective Services, Computers, Science, and Legal. It was estimated that the indirect costs associated with the highest BMI group in construction was $12,000 compared to $7,000 for those with normal BMI.

Would your floors pass the slip and fall test? 50% fail

Half of the floors tested for a slip-and-fall study failed to meet safety criteria, suggesting that many fall-prevention programs may overlook the effects of flooring selection and ongoing maintenance on slip resistance, according to a study by CNA Financial Corp.

Given the high frequency of slips and falls, these findings underscore the need for attention to floor safety and regular surface resistance testing to avoid fall accidents and related injuries.

Fatigue costs employers big bucks

Key findings from a recent study on fatigue by the National Safety Council (NSC) include:

  • More than 43 percent of all workers are sleep-deprived, and those most at risk work the night shift, long shifts or irregular shifts. As employees become tired, their safety performance decreases and their risk of accidental injury increases.
  • Missing out on sleep makes it three times as likely to be involved in an accident while driving. Also, missing as little as two hours of sleep is the equivalent of having three beers.
  • Employers can see lost productivity costs of between $1,200 to $3,100 per employee per year.
  • The construction industry has the highest number of on-the-job deaths annually. In a 1,000-employee national construction company, more than 250 are likely to have a sleep disorder, which increases the risk of being killed or hurt on the job.
  • A single employee with obstructive sleep apnea can cost an employer more than $3,000 in excess healthcare costs each year.
  • An employee with untreated insomnia is present but not productive for more than 10 full days of work annually, and accounts for at least $2,000 in excess healthcare costs each year.

Experts say employers can help combat fatigue by offering breaks, scheduling work when employees are most alert, and promoting the importance of sleep.

Workers welcome employers’ help in dealing with stress

Workers want their employers to offer assistance in coping with work-related stress, according to a new report from the American Heart Association’s CEO Roundtable.

The report also concludes that employees think more highly of employers offering resiliency programs. Valued programs include methods for dealing with difficult people, improving physical health, remaining calm under pressure, coping with work-related stress and accurately identifying the causes of work-related problems. It also includes actionable strategies for effective workplace resilience programs.

Supportive communication and work accommodation help older workers return to work

While early supportive contact with injured workers and offers of work accommodation are important to all injured workers, a recent webinar hosted by the Disability Management Employer Coalition (DMEC) and presented by Dr. Glenn Pransky, founder of the highly acclaimed, but now-defunct Center for Disability Research within the Liberty Mutual Research Institute for Safety, noted that these two strategies are particularly effective with older workers.

His research involved workers’ comp cases in New Hampshire related to low back and upper extremity problems. Negative responses, including lack of support, anger, disbelief, blaming the worker, or discouraging the worker from filing a claim resulted in significantly longer disability, and the effect was especially strong among older workers.

Click to hear the DMEC webinar

Loss control rep visits cut lost-time injuries in construction

Visits by insurance loss prevention representatives to construction job sites can lead to fewer workplace injuries, according to a study by a Center for Construction Research and Training supported research team at the University of Minnesota. One contact was associated with a 27% reduction of risk of lost-time injury, two contacts with a 41% reduction of risk, and three or more contacts with a 28% reduction of risk, according to the study. The study also found that these visits are often low cost and that the reduction in lost-time injuries reduced workers’ comp costs.

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

Don’t let your holiday party become a legal liability

No one wants to be a spoil sport. Holiday parties are supposed to be festive and fun, but they can also be a breeding ground for liability under tort, workers’ compensation, sexual harassment, discrimination, and other laws. Planning ahead to minimize exposure can help ensure a lawsuit-free event.

Workers’ Compensation

A North Carolina case last year, Lennon v. N.C. Judicial Dept., illustrates the issues that are common when an employee is injured at an office event. Whether such injuries are covered under workers’ compensation laws will depend on many factors (which can vary by state), but the overriding question is whether the employee was acting in the course and scope of employment at the time of the incident.

In this case, the injured employee worked for the division of the county clerk’s office that was in charge of planning the annual office holiday party. During regular working hours, she designed invitations, arranged for catering, and helped plan the party. She also volunteered to serve as the “emcee” for the event. All employees were invited, but not required to attend, and the cost of the food and venue was paid for by a group of private attorneys who sponsored the party. Even if they did not attend, all employees were expected to contribute $13 to pay for a gift to the clerk of court and for cleaning up after the party.

On the evening of the party, she fell and suffered a fracture of the wrist and coccyx and a tear of her shoulder. She received short-term disability benefits and filed a workers’ comp claim for days missed from work, permanent partial disability, and medical expenses. When the insurance company denied the claim, it went through a series of appeals, which upheld the denial.

The appellate court used a six-question analysis to help determine if the injury arose out of the scope of employment:

  1. Did the employer in fact sponsor the event?
  2. To what extent was attendance really voluntary?
  3. Was there some degree of encouragement to attend, evidenced by such factors as:
    1. taking a record of attendance
    2. paying for the time spent
    3. requiring the employee to work if he did not attend or
    4. maintaining a known custom of attending?
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit to which they were entitled?
  6. Did the employer benefit from the event, not merely in a vague way through better morale or good will, but through such tangible advantages as having an opportunity to make speeches and present awards?

While laws will vary by state, employers who take careful steps to disassociate the event from work and confirm that the venue and service providers are properly licensed will minimize their risk.
Tort

While drinking too much at a holiday party may derail a career, alcohol is at the root of many lawsuits and employers need to take steps to ensure that the revelry does not get out of hand. When excessive drinking occurs, employers can face claims of social host liability, negligence, and respondeat superior, which holds employers responsible for the acts of employees such as DUI cases.

A recent New York case, Gillern v. Mahoney, illustrates the exposure that excessive drinking can cause, even when the employer had no role in the celebration. A number of employees organized a holiday party and when a co-worker became intoxicated, they contacted his wife (also an employee and a nurse) to take him home. When she arrived, they assisted her in getting her inebriated husband into the car. When at home, she let him sleep it off in the car, but later, she found him dead on the car floorboard.

Even though the party was not sanctioned or paid for by the employer, was not held on its property, and all participating employees were off duty, the employer was sued for the worker’s death. Upon appeal, the appellate court found that the action of the co-employees was not the proximate cause of the decedent’s death and the employer and various co-employees could not be held responsible in tort.

It would be an easy solution not to serve alcohol, but that is not always realistic. Employers need to establish limits on the amount and type of alcohol that will be served. Definite “no’s” are an open bar and allowing employees to serve drinks. Limit the number of drinks with a drink ticket system or don’t provide free drinks at all, close the bar early, hold the event off site at establishments with a liquor license and properly trained bartenders, provide plenty of food, and arrange alternative transportation. Be sure management leads by example. Advise employees to be responsible with a statement on the party invitation and/or a written reminder on the responsibilities to drink only in moderation and to avoid driving after drinking.
Harassment

This year, where we seem more divided than ever and some are emboldened to mock or denigrate others, if it can go wrong, it will. In a social situation with alcohol, employees can lose their inhibitions and do offensive things that they wouldn’t normally do in a work environment. Yet, an employee’s diminished capacity is not a defense to claims of harassment or assault and employers could be held responsible because they created the environment for that conduct to take place. Other issues that can lead to lawsuits are a religiously themed party and religious symbolism, hanging mistletoe, inappropriate postings on social media that could lead to claims of a hostile work environment, harassment or discrimination.

While hosting a party off-site can better protect your company, employees can also assume office standards of conduct do not apply. Employers should remind workers that behavior at the party should comport with the same behavior that is acceptable in the workplace and that the same reporting procedures apply should any incidents occur. Make the dress code known and avoid holiday attire or costumes. Remind supervisors and managers to set a professional example, by staying clear of talking about promotions, performance, and other business matters related to individual employees, and not selectively offering personal compliments.
Gift exchanges

Similar to office parties, Secret Santa and Yankee Swaps, and other forms of gift exchange are popular during the holiday season. It’s important to make this voluntary and set parameters for appropriateness, inclusivity, and price.
Nine actions to minimize risk

While each state has its own nuances in the law, employers can best protect themselves with these actions:

  • Hold the party off-site and not during office hours
  • Ensure that attendance is truly voluntary; there is no coercion to attend and no high expectation of attendance
  • Be cautious about inviting vendors, clients or others with whom you have a business relationship
  • Refrain from engaging in business activities, such as speeches and distribution of awards
  • Avoid asking employees to perform specific functions at the party or recognize that in so doing, they could be considered in the scope of employment
  • Limit or do not serve alcohol
  • Remind employees that normal workplace standards of conduct are to be respected, including the use of social media, and immediately stop inappropriate conduct
  • Confirm that the venue is properly licensed
  • Understand your exposure and corresponding insurance coverage

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

Six ways employers unwittingly fuel workplace violence

The statistics are alarming. According to an FBI report, workplace violence impacts almost two million Americans a year, causing an average of 700 homicides. About 18% of violent crimes are committed in the workplace. In addition to the invaluable loss of human life, NIOSH estimates the annual economic cost is $121 billion, not including the immeasurable physical and emotional trauma and morale issues among employees and disruption for the business.

Yet, according to the Bureau of Labor Statistics (BLS), fewer than 30% of private employers have workplace violence prevention programs and only 20% provide workplace violence prevention training. Employers can be reactive rather than proactive, believing an incident cannot occur at their office and don’t seek help until something has happened.

While some associate workplace violence with the high-profile cases covered by the news media, its definition is much broader. The FBI defines workplace violence as “actions or words that endanger or harm another employee or result in other employees having a reasonable belief that they are in danger.” It encompasses bullying, harassment, stalking, robbery, rape, sexual assault, physical assault, as well as shootings, and happens daily.

Generally, it can be grouped into four types:

  1. Violent acts by people who have no other connection with the workplace other than to commit the crime (such as robbery). Convenience stores, gas stations, and liquor stores are at particularly high risk.
  2. Directed at workers by customers, clients, patients, students, inmates or any others for whom an organization provides services. Health care and social assistance sectors are particularly vulnerable.
  3. Violence against coworkers, supervisors or managers by a present or former employee. While some can be random, more often it is a disgruntled employee.
  4. Domestic violence that spills over to the workplace – violence committed in workplace and the perpetrator has a personal relationship with an employee.

Here are six ways employers unwittingly fuel the problem:

  1. Fail to adequately assess all aspects of physical securityConducting a thorough walkthrough at least once during the day and once after dark with a focus on identifying vulnerabilities lays the foundation for a security plan. Where can people enter the building? Are the entrances secured in any way? If electronic access cards are used, are they immediately disabled when an employee leaves the company or loses the card? Where can perpetrators hide to sneak in behind an employee? How do visitors gain access to the building? What about the lighting? If it’s shared space, how is security coordinated? How can employees escape in the event of an incident? What about employees with disabilities? How is after-hour access controlled? Are there security cameras and are they positioned where they are needed? If you have security guards how rigorously do they enforce the rules?Once a security plan is developed, be sure employees have a way to communicate any issues and conduct periodic reviews of the security measures. If an employee reports a former boyfriend is stalking her, is there a way to communicate that information to those in the frontline? If a door is left open, employees may like the convenience of not using their keycards and not report it.
  2. Fail to train managers and supervisors in managing peopleManagers and supervisors often rise through the ranks because of their superior technical skills and strong work ethic. Managing people requires a different skill set and it can be particularly difficult with a troublesome employee. Far more frequent than killing rampages at the office are cases of workplace bullying and workplace assault. Stopping these dangerous situations early can prevent problems from spiraling out of control or turning deadly, yet poorly trained managers can make matters worse by intensifying the sense of persecution felt by the disgruntled employee or ignoring the situation altogether.Managers and supervisors may feel challenged to understand issues employees are experiencing outside the workplace – a divorce, a terminally ill child, financial problems, and so on, while also respecting privacy issues. They should know what to do and who to turn to for assistance.
  3. Fail to foster a culture that encourages reporting of physical and verbal threats and harassmentAll too often after an incident of workplace violence, co-workers describe the perpetrator as belligerent, angry, a bully, misfit, loner and so on, but did not report their concerns.The highly publicized sexual assault allegations made against Hollywood producer Harvey Weinstein and others – including the use of the #MeToo social media hashtag – indicates that sexual misconduct is a regular, but underreported workplace occurrence. They may worry about their job, fear retaliation, believe it’s not their responsibility, don’t want to be viewed as a “tattler,” don’t believe it will escalate, or think the employer will ignore the complaint. Ironically, aggressors count on this behavior.Educating workers on all aspects of workplace violence and training how to spot potential trouble is a good start. Open communications and a clear reporting structure that enables them to report in a non-judgmental way that includes timely feedback and action is essential.
  4. Fail to recognize workplace factors that can trigger violenceStress, downsizing, mergers, feelings of being undervalued or unheard, and rigid management styles are often cited as precursors of workplace violence. Stress is a key trigger, and increased production demands, new technologies, reorganization, and the pressure to be available 24/7 can be overwhelming to some employees. Special programs to help employees manage stress can be helpful and demonstrate support for employees.Yet, the same ‘objective’ stressor at work can trigger an aggressive reaction in one person and not in another. This sometimes leads managers to conclude that a problem is the individual’s – rather than accepting the need to acknowledge and respond to differences in their staff. Yet, often there are early warning indicators, such as a change in attitude or appearance, friction with co-workers, deteriorating performance, excessive complaints, and increased absences. When managers get involved with an open dialogue and provide a plan for support, the likelihood of this escalating to overt threats and aggression decline.
  5. Fail to manage the threat with hiring and firing practicesThere’s no doubt it is difficult to obtain substantial information from past employers, but it’s critical to try. According to reports in the Baltimore Sun, the gunman at the Advanced Granite Solutions company in Maryland had been violent previously at work. An employee at a prior employer filed a peace order against him, alleging that he had punched an employee in the face and had returned later to threaten employees at the place of business.Experts suggest that behavioral-based interviewing can help identify potential problems. This technique involved probing questions that relate to how an individual behaves in the workplace. “Tell me about a situation where you did not agree with a co-worker. How did you handle it? What was the outcome? Were you satisfied with the outcome?” Observing body language also can be revealing. Employers who do not take proper precautions in hiring run the risk of being accused of negligent hiring practices.

    Equally important is managing the termination process. Whether it’s a layoff, non-performance, or just a poor fit, treat the person with dignity and respect and stick to the facts. Be consistent. Keep it short and private. Do it at a time when business impact is minimized. Many experts suggest earlier in the week and definitely not a Friday. Provide information on resources that will be helpful to the employee.

  6. Fail to involve workers in the development of the planWhen employees have a role in developing a plan, they are more likely to take ownership and feel empowered to take action. The group should include individuals from line staff to the highest-ranking management official or an appropriate designee to ensure feedback and representation from the entire workplace. All-employee training sessions designed to educate staff on what workplace violence is, how to look for it, and what actions to take should be conducted regularly.

Employers in every industry need to do a better job at preventing workplace violence. While it is not always possible to prevent violence in the workplace, by preparing and planning ahead, it is possible to minimize the risk and protect employees.

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

HR Tip: Enforcement of joint employer liability for temporary worker safety remains strong

While OSHA has moved away from an enforcement-based strategy on many initiatives, OSHA’s deputy director of the Directorate of Enforcement Programs made it clear at a recent conference that the agency is continuing to enforce joint employer liability for temporary worker safety and plans to issue more guidance for employers. The agency conducted nearly 600 inspections of workplaces with temporary workers in fiscal year 2016 and is continuing to conduct these inspections.

In addition, in every inspection compliance officers are directed to look for the presence of temporary workers and the unique hazards they are exposed to. OSHA has issued seven bulletins providing guidance to employers as part of the temporary worker initiative on injury and illness record-keeping requirements, personal protective equipment, whistleblower protection rights, safety and health training, hazard communication, bloodborne pathogens, and powered industrial trucks training.

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