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


  • 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.


  • 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.

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


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.

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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


  • 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.


  • 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.


  • 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).


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


  • 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.


  • 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 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.


  • 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.


  • 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.


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Legal Corner

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.

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What to expect in 2018

In today’s fast-moving business environment and volatile political atmosphere, nothing stays the same for very long, including Workers’ Compensation. Here are 18 ongoing trends and emerging issues to watch in 2018.

  1. Comp rates continue downward trend It’s good news for employers that comp rates are decreasing in most states as claims frequency declines and workplace safety continues to improve. This, coupled with relatively modest increases in medical costs and stable indemnity cost, means a reduction in loss costs and rates. Safety programs at the workplace, automation that has made hazardous jobs safer, a shift from more hazardous jobs to service jobs, and access to better medical care have all contributed to this favorable trend.There are a few areas that are more challenging, including the trucking and hospitality industries. Geographically, rates in California remain among the highest in the country and in Florida there still is concern about rising claims and legal costs, but rates are falling in both states in 2018. Rates in Pennsylvania are expected to increase 6-7% this year due to a Pennsylvania’s State Supreme Court 2017 ruling on injured employees on workers’ compensation over 2 years that will have a significant impact on rates in 2018 and moving forward unless legislation is addressed.  Moreover, workplace fatalities rose to the highest level since 2008.

    Takeaway: This is no time to become complacent. Hourly wages have been slowly trending up, along with employment. Claims have become more complex with comorbidities, aging, chronic pain, improved medical processes, and so on. The long tail nature of claims means that premiums collected today must cover losses for years to come. Insurance companies are using big data and more sophisticated predictive pricing models. Employers that collect and analyze data to improve cost controls, embrace innovative and progressive management of their Workers’ Comp program, and highlight them in underwriting submissions will reap the benefits.

  2. OSHA becomes more employer-friendly Under the Trump administration, there is a significant shift from the enforcement philosophy of the Obama administration to one of enforcement and compliance assistance.Combustible dust, vehicle backing hazards, hearing protection in construction, and updates to chemical PELs were removed from the regulatory agenda and workplace violence, process safety management, infectious diseases in healthcare, and emergency response and preparedness were moved to “long-term actions.” Enforcement of the silica standard on general industry and the maritime industry is scheduled to begin on June 23, 2018, but the Trump administration may seek a delay, depending on its experience with enforcement of the standard on the construction industry.

    Expect more emphasis on Voluntary Protection Programs (VPP), possible changes to “repeat” violation policies and National Emphasis Programs, much less public shaming, more limited use of the general duty clause, and changes to the e-recordkeeping and anti-retaliation rule.

    Takeaway: In spite of these shifts, employers should not assume they are guaranteed employer-friendly outcomes when dealing with OSHA, nor plan on specific regulatory changes, which will take time. While there may be closer adherence to the standards, the increased enforcement fines remain in effect, with some significant fines levied in 2017.

  3. New technologies will continue to emerge The ability to strengthen safety, provide health information, improve working conditions, and boost productivity with the adoption of new technologies (drones, wearables, the IoT, laser scanning, apps, emerging robotic technologies, and autonomous safety systems) will continue to grow. A virtual approach to ergonomics is emerging as a more efficient way to prevent or mitigate injuries.With this comes the need to understand regulatory requirements, privacy laws, insurance, and protection from liabilities. While the opportunities are compelling, some industries, such as construction, have been slow to adapt.

    The advances in technology also impact the medical treatment available for injured workers. Some new treatments will restore full functionality, others will significantly increase costs, and some expand the exposures for lifetime indemnity and medical benefits.

    Takeaway: As the benefits of using these technologies are proven and their prices decrease, more employers will adopt to improve safety and increase competitiveness. Evaluating functionality, security, and employee buy-in will be key in making product choices. New technologies mean new risks and promoting best practices for controlling exposures to hazards involving human interaction with technology, as well as training to mitigate the risks of workers becoming distracted or disengaged are crucial to obtain improved efficiency and reduced costs.

    From a medical vantage point, the use of evidence-based medicine and relationships with occupational physicians will continue to grow in importance.

  4. More employers will practice advocacy-based claims management Employers who have an “us vs them” attitude towards workers who have experienced a work-related injury are living in the past. Transparency, collaboration, and communication are the techniques that dominate effective claims management today.By easing the minds of injured workers and helping guide the recovery process, employers can avoid adversarial relationships and obtain better outcomes.

    Takeaway: It’s not a costly practice, but it takes commitment and consistency to work and an understanding of the injured worker. It can’t be a cookie cutter process; it’s a culture.

  5. New training techniques Training that requires focus, reinforces good practices, highly engages workers, is deliverable 24/7, and has no language barriers is not traditional training. Gamification, virtual reality (VR), and simulations have moved training from passive seminars, video watching, and form-filling to interactive culture and behavioral changing programs. Moreover, site specific safety orientation, daily tool talks, and near miss analysis and discussion build trust with workers and focus on the unique challenges of the job.Takeaway: While the top ten OSHA violations are evidence that many employers fail to meet their training obligations, it’s also true that training is often boring and ineffective. New approaches focus on problem solving and collaboration. The importance of training is how well employees remember and use what they know when the time comes to protect themselves, not that the obligation has been fulfilled.
  6. Alternative treatments for chronic pain While opioid prescribing is on the downturn in workers’ compensation and opioid early intervention programs have become an industry mainstay, legacy claims are a serious problem for the industry. Also, chronic pain particularly from musculoskeletal conditions, remains a serious problem among the workforce and must be addressed. Less invasive approaches such as education and self-care options; conservative therapies like exercise, acupuncture, physical therapy, and yoga; cognitive behavioral training to address psychological factors; and comprehensive pain management are leading the way. The debate rages on about the possibilities of medical marijuana.Takeaway: Employers offering access to affordable and evidence-based options that can help employees in pain can reduce their costs by mitigating unnecessary treatments, reducing lost time, and improving productivity. A comprehensive program provides education and is tailored to the individual needs of the employee.

    Medical marijuana continues to challenge employers in their substance abuse programs and drug testing, and state judicial and legislative bodies as they decide whether to permit reimbursement of medical marijuana as a compensable workers’ compensation benefit. Staying abreast of relevant legal decisions and clearly defined policies in employee handbooks is key.

  7. Medical practices will continue to change Telemedicine is here and expanding. Delivering medical care and information via telecommunication networks is impacting case management, physician’s visits, and rehab. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow-up care, including post-op visits, home treatment plans, questions and answers, and consultations with specialists. There’s also been an uptick in telerehab, which supplements in-clinic physical therapy, with virtual access to physical therapy. The possibilities will continue to expand.Takeaway: The benefits of telemedicine can be significant, including cost savings, better access to care, immediate triaging of injuries, and faster claims closings. Issues facing employers include state laws, which vary in the types of services covered, provider requirements, reimbursements, and medical licensure; changing roles of stakeholders who are providing service to injured workers; patient and data privacy; monitoring quality of outcomes; and systems connectivity.
  8. Mental health issues will be talked about more The significant impact of mental health in workers’ comp continues to emerge. Legislative efforts to make it easier for first responders to receive workers’ compensation benefits for mental stress injuries (such as post-traumatic stress disorder) have met with varying degrees of success. The effect of depression, anxiety, and other mental health issues on delayed return to work, increased claims costs, and workplace violence are more fully understood and recognized.Takeaway: Companies are becoming more cognizant of these issues and are more focused on building healthy workplace cultures. The stigma attached to mental health is a societal problem and greater education is needed to identify mental health issues and appropriate treatment.

    Regulatory and external factors can become disruptors including:

  9. Natural disasters have a significant impact on the industry
  10. The national opioid crisis finds its way into the workplace, with double digit increases in overdose fatalities
  11. Globalization means borderless business and new challenges to keep traveling employees safe
  12. Debate over drug formularies will continue to rage in many states
  13. The Gig economy raises questions of adequately protecting workers
  14. The question of independent contractor vs. employee remains one of the hottest, most litigious areas
  15. Rising on-demand services change the risks faced by workers
  16. Changes to immigration laws have significant implications for the hospitality, restaurant, agricultural, construction, and technology industries as well as others
  17. 24/7 connectivity has implications for employee fatigue, driver safety, productivity
  18. The new tax law will mean changes in investment priorities and could lead to accelerated automation

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Things you should know

Temp workers file lost-time claims twice as often: study

Temporary workers file lost-workday claims about twice as often as permanent workers, according to a recent study from the Washington State Department of Labor & Industries.

Agricultural services had the highest disparity among industries, with 12.39 lost-workday claims per 100 FTE for temp workers compared with 2.36 for permanent ones.

From interviews, researchers found that among temp claimants, nearly 40 percent said they did not receive safety training from their temp agency, and 48 percent said they were trained only at the beginning of employment. For permanent claimants, those percentages were approximately 25 and 20, respectively. Temp claimants also reported less screening for applicable work experience and less control over work schedules.

The study, which was published in the American Journal of Industrial Medicine adds to the evidence that policies are needed to improve screening and training of temporary workers.

Nonfatal injury and illness rate in private sector continues to decline: BLS

The nonfatal injury and illness rate for private-sector U.S. employees decreased slightly in 2016, as did the rate of nonfatal occupational injuries and illnesses requiring days away from work, according to data released Nov. 9 by the Bureau of Labor Statistics. Reported nonfatal injuries and illnesses occurred at a rate of 2.9 cases per 100 full-time workers in 2016, compared with 3.0 in 2015 and 3.2 in 2014. The rate has fallen in all but one year since 2003. The 2012 rate remained the same as in 2011.

Other 2016 data highlights:

  • The median DAFW needed to recover was eight, matching the figure from 2015.
  • The DAFW rate for workers in manufacturing fell to 94.9 cases per 10,000 full-time workers from 99.0 the year before. The total number of DAFW cases in manufacturing fell by 4 percent to 118,050.
  • Among the four industries that reported injury rate declines, only retail trade (122,390) and manufacturing (118,050) exceeded 100,000 DAFW cases.
  • Sprains, strains and tears accounted for 317,530 injuries and illnesses requiring DAFW, or about 36 percent of total cases.

Ignored safety procedures, fractured safety program led to fatal Amtrak derailment

The National Transportation Safety Board determined the April 2016 derailment of Amtrak train 89 near Chester, Pennsylvania was caused by deficient safety management across many levels of Amtrak and a lack of a clear, consistent and accepted vision for safety. A backhoe operator and a track supervisor were killed, and 39 people were injured when the train, traveling on the Northeast Corridor from Philadelphia to Washington struck a backhoe.

The abstract of the NTSB’s final report, that includes the findings, probable cause and safety recommendations is available online.
‘Hypermasculine’ firehouse culture may hinder women from speaking up about safety: study

Female firefighters who feel unwelcome or shunned in the male-dominated culture at some firehouses are less likely to be active participants in the department’s safety culture, according to a new study from Drexel University, published in the Journal of Workplace Behavioral Health.
2018 edition of NFPA 70E® available

Electrical equipment and electrical safety devices are constantly being changed and improved. The NFPA 70E Committee addresses these changes and updates the standard every three years as part of keeping up with current technology and safety concerns. This is a standard used not only by facility managers and safety officers, but also by OSHA inspectors, continually educating them on existing trends in electrical safety.
State News


  • The guidelines for how injured workers are treated changed Dec. 1, with modifications in line with current American College of Occupational and Environmental Medicine standards.
  • According to the estimates provided by the U.S. Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses (SOII), California’s overall incidence rate of nonfatal occupational injuries and illnesses remains steady at 3.7 cases per 100 workers for full time employees, the lowest rate in over a decade.
  • Medical payments per workers’ compensation claim with more than seven days lost time have decreased steadily since the enactment of reform legislation in 2013, according to a study released by the Cambridge, Massachusetts-based Workers Compensation Research Institute (WCRI). The average medical payment per claim decreased 3% – 4% per year.


  • The Insurance Commissioner has granted approval to the National Council on Compensation Insurance (NCCI) for a statewide overall rate level decrease of 9.5% and premium level decrease of 9.8%. This applies to both new and renewal workers’ compensation insurance policies effective as of January 1, 2018.


  • Nonfatal occupational injury and illness rate is the lowest in state history with an estimated 3.5 injuries or illnesses per 100 full-time workers.

New York

  • The New York State Workers’ Compensation Board released revised draft impairment guidelines and proposed regulations. According to a new section added to Title 12 of NYCRR, evaluations of permanent impairment must be completed using the Workers’ Compensation Guidelines for Determining Impairment. The revised guidelines make changes to the way that medical impairments are scored.

North Carolina

  • Workplace injury and illness rate for private industry in 2016 was statistically unchanged from its historic low in 2015. The 2016 rate is 2.5 cases per 100 full-time workers, compared to 2.6 in 2015.
  • Physician payments as a percentage of Medicare reimbursements were lower than for the region and nationally last year, a NCCI study on Medical Data shows.


  • A recent study by the WCRI found medical payments per workers’ compensation claim were higher than typical for 2015 injuries evaluated as of March 2016. In 2015, workers’ compensation medical payments per claim with more than seven days of lost time were 61 percent higher than the median in the study; medical payments per all paid claims were 46 percent higher than typical. However, other WCRI research found injured workers reported higher rates of satisfaction with their medical care and among the lowest percentages of problems accessing medical care. Overall total costs per all paid claims were lower than typical in Wisconsin, driven largely by fewer workers losing time from work after an injury, substantially lower indemnity payments per claim, and shorter duration of temporary disability benefits.


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Things you should know

NCCI published a large set of changes to the Basic Manual

While many of the changes are minor, such as replacing “insured” with “employer,” here are some you should know:

  1. Stores and day care services operated by the employer for employee use are now a general inclusion. Previously, they were a general exclusion. They must be separately rated if they also operate for the general public.
  2. The “automatic” exclusion for expense reimbursements when traveling overnight increased from $30 to $75 per day. Texas has their own exception to this and you can exclude up to the maximum IRS allowable per-diem, which is currently $189.
  3. 7228 and 7229 (Short and Long-Haul Trucking) are being retired in favor of 7219. This change has already happened in many states, with many more following along over the next year. Check with your agent for more information.

EEOC provides timeline for revising wellness regulations

In a court ruling in August, the American Association of Retired Persons, Inc. (AARP) challenged the EEOC regulations on the basis of the “voluntariness” of the 30 percent incentive limitation and the court held that the EEOC did not provide a reasonable explanation as to why the incentive limit of 30 percent of the cost of coverage rendered an employee health program voluntary rather than involuntary.

According to a status report issued in September, the EEOC intends to issue a notice of proposed rulemaking by August 2018 and issue a final rule by October 2019. Notably, the EEOC indicates in a footnote that, in order to give employers time to come into compliance with a new rule, any substantively amended rule on wellness programs would likely not be applicable until the beginning of 2021.

Adult obesity rate climbs to 40 percent

Obesity continues to present a problem to both the adult and younger population of the United States, according to new data from the Centers for Disease Control and Prevention (CDC).About 40 percent of U.S. adults are considered obese, and the rate grew 20 percent for 12 to 19 year olds, the CDC’s National Health and Nutrition Examination Survey (NHANES) indicated.

NIOSH center to focus on ‘safe integration of robots’ in the workplace

Citing a “knowledge gap related to robotics and worker safety and health,” NIOSH has launched the Center for Occupational Robotics Research in an effort to evaluate the possible advantages and hazards of robot workers, as well as foster safe robot-human interactions.
State News


  • The Department of Insurance announced that the pure premium rate will reduce 17.1% to $1.94 per $100 of payroll for workers’ compensation insurance, effective Jan. 1, 2018
  • California Gov. Jerry Brown vetoed a bill that would require employers to provide employees their injury and illness prevention plan upon request
  • Hepatitis A outbreaks have been reported in San Diego, Santa Cruz and Los Angeles counties and Cal/OSHA has issued a reminder to employers about preventive measures


  • Indiana Department of Insurance approved a 12.8% rate decrease
  • A WCRI report notes that medical payments per claim decreased 10% from 2014 to 2015 – the first such decrease in more than a decade


  • The pure premium advisory rate for work comp insurance will decrease by 9.3% for 2018

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Legal Corner

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.


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.

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OSHA watch

Interim enforcement guidance on silica standard for construction

The interim enforcement guidance for the Respirable Crystalline Silica in Construction Standard (1926.1153), which is now enforced in full, was issued Oct. 19 in a memorandum to regional administrators. The guidance is intended to help gauge whether employers meet various requirements, including those for inspections and avoiding citations, but does not provide guidance on all of the standard’s provisions. A final compliance directive is in the review process.

Information on silica hazards and related standards are now in one location on the website.

New fact sheets: Zika virus and evaluation of Shipyard Competent Person programs

The fact sheet on the Zika virus details how laboratory exposures occur, often through bodily fluids, and how to prevent exposures.

The Shipyard Competent Person programs fact sheet offers guidance on determining the necessary qualifications of experts who must be employed to determine whether a confined space is safe for workers and prescribe protective measures.

Pennsylvania construction firms join Strategic Partnership program

Shoemaker-Skanska Construction and the Philadelphia Regional Building Trades Council entered into a strategic partnership to protect approximately 300 workers during renovation and construction of a shopping mall complex in Philadelphia. P.J. Dick Incorporated entered into a strategic partnership to protect approximately 200 workers during the construction of an insurance office building in Erie.

Enforcement notes


  • HBuilt Inc. in Oakland received two serious citations and $80,000 in penalties for failing to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.


  • Structural Subcontractors Service LLC, a Birmingham-based structural framing company working on a job site in Georgia, faces penalties of $102,669 for exposing workers to fall hazards. Inspectors found workers wearing fall protection harnesses, but were not tied off to prevent a fall. The inspection was initiated as part of a regional emphasis program.


  • Citations and proposed penalties against Dudley-based Shield Packaging Co. Inc. and two staffing agencies following a May 2016 incident in which an employee was injected with a flammable propellant gas have been settled. The packaging company will pay $150,000, about 50% of the original levy, and the two staffing agencies, Leominster-based ASI Staffing Group Corp. and Worcester-based Southern Mass Staffing, will pay $12,471 and $12,222 respectively. The company also agreed to document that all hazards are corrected, retain a professional engineer to approve the design and installation of a safety interlock on the machine that injured the worker, retain a qualified safety consultant to perform a comprehensive inspection of the plant, and develop a workplace safety and health program, while the staffing agencies also agreed to implement specific comprehensive safety and health measures.


  • Ten citations and $102,600 in penalties were issued to SET Enterprises Inc. in New Boston for exposing workers to amputation hazards. Inspectors determined that the company failed to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

New York

  • Acme Parts Inc. has agreed to pay $40,000 in penalties after high lead levels were found in the manufacturing facility as well as hire a qualified lead hazards and abatement consultant to evaluate the facility and to recommend improved practices.
  • An administrative law judge affirmed citations issued against Webster-based LM Sanderson Construction Inc. whose employees were photographed working on a site without fall protection and assessed total penalties of $5,600. The employer failed to meet its burden in contending the violation was the result of unpreventable employee misconduct or that literal compliance with the standard’s requirement was infeasible under the circumstances.


  • Pittsburgh contractor, Ski Masonry LLC, is facing $201,354 in proposed penalties for exposing workers to fall and electrical hazards after an employee was fatally electrocuted.
  • In response to a complaint, the owner of a New Jersey construction company has been cited for exposing workers to alleged hazards at a Philadelphia job site, including allowing employees to work on a scaffold that was too close to power lines, failure to train on scaffold hazards, not providing hard hats and failing to develop and implement an accident-prevention program. The owner, Vyacheslav Leshko, faces $191,215 in proposed penalties.

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HR Tip: Failure to pay for pre-shift work can be costly

A recent settlement in a class-action lawsuit, Tompkins v. Farmers Insurance Exchange, is a reminder to all employers about the obligation to pay for pre-shift work under the Fair Labor Standards Act (FLSA) and state laws. A federal court approved a $775,000 settlement for Farmers Insurance’s alleged failure to compensate auto claims representatives, appraisers, and adjusters in several states for pre-shift work.

The alleged unpaid activities included starting up computers and accessing Farmers’ software applications, obtaining daily assignments, determining the locations the workers would need to visit, mapping routes, contacting customers and auto repair facilities, downloading required forms and gathering paperwork, as well as traveling to the workers’ first appointments of the day. The settlement, which was approved by the U.S. District Court for the Eastern District of Pennsylvania, granted both the FLSA collective action and state law class claims and covers nearly 400 current and former employees.

Employers are reminded that activities before the official time a shift begins are compensable if they include tasks the worker is employed to perform or are an “integral and indispensable part of” the job and include mandatory pre-shift meetings. Employers should review policies and practices regarding compensation for pre- and post-shift work, as well as educate managers about the wage laws that require payment for all hours worked.

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