Things you should know

Medical payments per comp claim rise: WCRI

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

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

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

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

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

Early care can help mitigate mental issues tied to workplace injuries

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

Preventing opioid misuse: New guide for employers in rural areas

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

State News

California

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

Georgia

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

Illinois

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

Indiana

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

Massachusetts

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

Michigan

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

Minnesota

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

Missouri

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

Nebraska

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

New York

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

North Carolina

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

Pennsylvania

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

Tennessee

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

Virginia

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

Wisconsin

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

 

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

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

 

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

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

Some of the updates include:

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

 

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

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

Coronavirus and OSHA: important updates

Backtracks on recordability of COVID- 19

Interim guidance reversed previous guidance that COVID-19 transmission in the workplace would be considered a recordable injury. Under the new guidance, the recordability of COVID-19 for non-frontline employers will be enforced only if there is objective evidence that the case may be work-related without an alternative explanation and the evidence was reasonably evident to the employer.

Employers in areas where there is ongoing community transmission “other than those in the health care industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services) and correctional institutions” generally will not be required to record COVID-19 cases because they “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”

The non-exempt employers must continue to make work-relatedness determinations and record on their 300 logs positive cases of COVID-19 likely to have been acquired on the job that result in death, days away from work, restricted work, or medical treatment beyond first aid.

 

Enforcement relief of many regulatory obligations for employers demonstrating “good faith efforts”

In an April 16 memo area offices and inspectors were given the discretion to assess an employer’s good-faith efforts to comply with standards that require annual or recurring audits, reviews, training or assessments, and take such efforts “into strong consideration” before issuing a citation during the current pandemic. Inspectors are directed to evaluate if employers:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies)
  • Implemented interim alternative protections, such as engineering or administrative controls
  • Rescheduled required annual activity as quickly as possible

The memo lists examples of situations in which area offices should consider enforcement discretion, including annual audiograms, hazardous waste operations training, construction crane operator certification, and periodic evaluation for respirator use.

 

Guidance for manufacturing sector

Guidance for the manufacturing sector offering strategies to prevent the spread of coronavirus was recently released. The guidance recommends that manufacturing companies stagger shifts, maintain distances of six feet between employees if possible, allow workers to wear masks, and provide training on the proper donning and doffing of personal protective equipment and clothing. Manufacturers are also urged to promote personal hygiene and provide alcohol-based hand rubs of at least 60% alcohol if handwashing access is not available and provide disinfectants and disposable towels for employees to clean work surfaces. The guidance is available in English and Spanish.

 

New safety alerts: retail sector, construction, package delivery workers

new safety alert provides nine tips for employers and workers at pharmacies, supermarkets, big-box stores, and other retail establishments to help reduce the risk of contracting and spreading COVID-19. The guidance is also available in Spanish.

A new safety alert provides guidance to help protect construction workers from exposure to coronavirus. It is available in English and Spanish.

Tips to protect package delivery workers are addressed in a new safety alert. English Spanish

 

Guidance for meatpacking and processing industries

coronavirus-related interim guidance developed with the CDC for meatpacking and meat processing workers and employers, including those involved in beef, pork and poultry operations, has been released. The interim guidance includes information on cleaning of shared meatpacking and processing tools, screening employees for the coronavirus before they enter work facilities, managing workers who are showing symptoms of the coronavirus, implementing appropriate engineering, administrative, and work practice controls, using appropriate personal protective equipment and practicing social distancing at the workplace.

 

Worker exposure risk chart

To help determine workers’ risk level for exposure to COVID-19, a chart of a four-tiered hierarchy based on occupational risk was developed. It shows what measures to take to protect workers based on industry and contact with others. The levels are:

Very high: Health care and morgue workers performing aerosol-generating procedures on or collecting/handling specimens from potentially infectious patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

High: Health care delivery and support, medical transport, and mortuary workers exposed to confirmed or suspected COVID-19 patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

Medium: Individuals who may have contact with the general public, including anyone employed in schools, high-population/density work environments, and some high-volume retail settings. This category also includes workers returning from locations with widespread COVID-19 transmission.

Lower (caution): Individuals who have minimal occupational contact with the public and other co-workers.

 

Inspectors prioritizing health facilities over other sites during coronavirus crisis

Recent guidance directs inspectors to focus on inspecting hospitals, nursing homes, laboratories, and other “high-risk” settings that are the subject of complaints by workers. Fatalities and imminent-danger exposures related to the pandemic will take priority for onsite inspections. So many employee complaints have been made that letters requiring a response are no longer sent, but employers are sent a letter notifying them about a complaint and directing them to agency guidance and additional resources on how to address COVID-19 risk. On the other hand, Cal/OSHA and other state plans are sending out traditional letters requesting a response within five working days.

 

Employers reminded of whistleblower protections for COVID-19 complaints

The number of coronavirus-related whistleblower complaints prompted a press release reminding employers they cannot retaliate against workers who report unsafe working conditions. The press release lists forms of retaliation, including firings, demotions, denials of promotion or overtime, and reductions in pay or hours. Reports are that there have been thousands of COVID-19-related inquiries and complaints.

 

Further easing of regulations related to respiratory protection

On April 3, two interim enforcement guidance memos were issued regarding the Respiratory Protection Standard (1910.134) and certain other health standards. The reuse of N95 respirators and the use of expired N95s will be allowed if certain conditions are met.

The second memo allows for the use of filtering facepiece respirators and air-purifying elastomeric respirators certified by other countries or jurisdictions, under certain performance standards. The enforcement guidance applies to all industries, especially workplaces where respiratory protection is impacted by the shortage and health care personnel are exposed to suspected or confirmed COVID-19 patients.

third memo was released on April 24 providing guidance on reusing disposable N95 filtering facepiece respirators (N95 FFRs) that have been decontaminated.

 

Poster aimed at reducing workplace exposure to the coronavirus

A new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus is available in twelve languages.

 

COVID-19 quick tips videos

Three new animated videos provide quick tips on social distancing, disinfecting workplaces, and industry risk factors to keep workers safe from COVID-19:

Social distancing

Disinfecting workplaces

Industry risk factors

For OSHA updates visit https://www.osha.gov/SLTC/covid-19/ .

 

Cal/OSHA new guidance on COVID-19 in the workplace

Industry-specific guidance and ATD model plans have been released. The industry-specific guidance includes:

As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry.

 

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

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

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

 

COVID-19: Returning to workplace checklist

Employers face a daunting task as they craft new and revised policies for the “new normal” as employees start to return to work onsite. Not only do they have to comply with a myriad of constantly changing federal and state laws and guidelines, but they have to earn the trust of their employees, vendors, and customers that the workplace is safe. It’s critical to have a clear plan that is well communicated, but flexible, as this is uncharted territory. Open communication and encouraging feedback will build confidence as safe and efficient processes evolve.

The details of each employer’s plan will look different. At a minimum, it must reflect compliance with federal and state laws and guidelines. Industry groups and associations provide helpful guidance and resources and OSHA has issued guidance for specific industries. The CDC guidelines for business can be found here.

The American College of Occupational and Environmental Medicine (ACOEM) has launched Getting America Safely Back to Work that describes how OEM physicians can help employers navigate through the myriad return-to-workplace issues as well as return-to-work/fitness for duty issues for injured employees.

Automotive-seating manufacturer Lear Corp. recently published the “Safe Work Playbook,” a guide for safe practices at work during the pandemic for organizations of all sizes. It includes steps for cleaning and disinfecting equipment, staggering shifts and lunch breaks, setting up a pandemic response team, establishing onsite health screening, and creating protocols for isolating employees who come to work sick.

Here are key issues to consider:

  1. Workplace safety: a COVID-19 Infection/Exposure Control Plan
    • Administrative controls: staggered return to work, reducing number of workers onsite at one time, changing or alternating shifts minimizing or eliminating overlap, cross-training workers to accommodate more absenteeism, re-schedule lunch breaks, appointing a COVID-19 coordinator to oversee equipment disinfecting and social distancing
    • Engineering controls: reconfiguring workspaces to promote physical distancing, increasing ventilation rates, high-efficiency air filters, installing physical barriers, one-way traffic patterns throughout workplace, monitors that beep when one worker gets within six feet of another, more handwashing stations, drive-through windows for customer service
    • Pre-shift health screening: temperature checks and health/symptom questionnaires
    • Decisions about personal protective equipment, respirators, face masks, and face coverings – will they be required, who will pay for them, etc.
    • Detailed plans for enhanced disinfecting, including common touchpoints such as time clocks, doors, shared equipment, break room. Shift changes should allow the opportunity for optimal disinfection of the workplace
    • Screening and minimizing interaction with all visitors and vendors
    • Plan for safe meeting places with no more than 10 employees at any meeting
    • Protocols for isolating employees who become ill at work, stay-at-home requirements, and exposure communication to affected staff
    • Restrict access to confined or closed spaces
    • Provide adequate handwashing facilities and/or hand sanitizer that contains at least 60% alcohol
    • Define and limit travel to “essential”
  2. Recalling employees
    • Larger employers are encouraged to use a phasing-in system to limit exposure and build employee confidence
    • Know how to recall furloughed employees to qualify for loan forgiveness under the Paycheck Protection Program and how the new federal paid leave laws apply to employees returning from furlough
    • Keep separate records for payroll period that workers were furloughed for workers’ compensation purposes
    • If job responsibilities have changed, understand what needs to be done for compliance with FLSA and Workers’ Compensation
    • Notify the state unemployment agency of employees recalled
    • Determine how to handle employees who are unable or unwilling to return to work
    • Determine if light duty will be offered to injured workers to return to work and what will happen if they refuse to do so because of fear of exposure
    • Evaluate the need for extra protections for “high-risk” employees
    • Review any benefit and compensation changes that have been made
    • Have a remote pre-return training for managers and supervisors
    • On the first day of facility reopening, have staggered staff training in an area that adheres to social distancing protocol
    • Consider requiring employees to sign and acknowledge the organizations’ policies on preventing the spread of the coronavirus
  3. OSHA
    • The COVID-19 exposure control plan or response plan should provide a detailed description of everything the employer is doing to address the hazard, including an assessment of potential changes to personal protective equipment, administrative controls, workspace separation, and staggered work shifts
    • Keep adequate records of good-faith efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments
    • Understand the reporting requirements for COVID-19 cases
    • Follow guidance issued for your industry
    • Do not retaliate against employees who file complaints
  4. Work from home
    • When possible, continue remoting working and flexible hours
    • Review policies to determine if they need to be strengthened or updated
    • Communicate which jobs will be permitted to continue to telework and why
    • Consider staggering work in office and at home among team members
    • Assess IT infrastructure and staff
    • Monitor productivity and be clear about expectations

Looking ahead

Employers have learned valuable lessons regarding their resiliency over the past months. It’s important to prepare for a potential second wave in the fall as well as implement a business continuity plan, including infectious disease control, if a plan does not exist.

A time of crisis is what truly defines a reputation. Your response to your employees, customers, and vendors will be the key to survival and long-term prosperity.

Additional resources and a formal checklist can be found at the Duncan Financial Group COVID-19 Resource Center Online

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

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

Coronavirus and Workers’ Compensation: important updates

Regulatory and legislative activity

In response to COVID-19, there have been a host of changes to state laws, either through legislative or executive action, relating to presumptive coverage, telehealth, utilization review, premium payment and cancellation relief, screening and testing, hearings, and more. This is a fluid situation and, to some degree unexpected expansion of coverage and compensability. The NCCI has an excellent resource that provides weekly updates by state.

One area to watch closely is the extension of presumption of coverage for COVID-19 to include first responders and health care workers and, in some cases, other essential workers such as grocery employees. When state policy is amended so that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation, the presumption places the burden on the employer and insurer to prove that the infection was not work-related, thus making it easier for those workers to file successful claims.

Minnesota, Wisconsin, and Alaska enacted legislation covering first responders and in some cases, health care workers. Executive actions to implement presumption policies for first responders and health care workers in response to COVID-19 were issued in Arkansas, Florida, Illinois, Kentucky, Michigan, Missouri, North Dakota, and Washington state.

In Illinois coverage was initially even broader; however, a County Circuit Court Judge issued a temporary restraining order against the emergency changes made by the Workers’ Compensation Commission. The Commission then voted unanimously to repeal the rule, citing the “uncertainty and expense of litigation.” The changes would have created a presumption that work is the cause of COVID-19 if contracted by any “frontline worker” identified in Gov. J.B. Pritzker’s March 20 stay-at-home order, including workers at grocery stores, laundries, banks and hardware stores, among other businesses. The lawsuit argued that the commission exceeded its authority and that the legislature would be the proper body to implement such changes. Some speculate that the repeal may lead to an executive order.

Kentucky created a COVID-19 presumption for workers in grocery stores, child-care centers, domestic violence shelters, and rape crisis centers, in addition to first responders and healthcare workers. However, it requires the same evaluation as other claims as to whether the disease acquisition occurred in the course of and scope of employment.

Action is also under consideration in Louisiana, Massachusetts, New Jersey, New York, Pennsylvania, Puerto Rico, Ohio, Vermont, and Utah. For more information.

Employers and insurers are concerned that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges. A recent study by the National Council on Compensation Insurance (NCCI) estimated that 49 million to 62 million workers could potentially qualify as essential workers who could be eligible for workers compensation relating to COVID acquisition. Costs could range from $1 billion to $80 billion in the 38 states it serves.

The California Workers’ Compensation Insurance Rating Bureau (WCIRB) was asked to provide the cost impact of a conclusive presumption for health care workers, firefighters, EMS and rescue employees, front line law enforcement officers, and other essential critical infrastructure (ECI) employees. The results were staggering. As reported in their Research Brief, the annual cost estimates of COVID-19 claims range from $2.2 billion to $33.6 billion with an approximate mid-range estimate of $11.2 billion, or 61% of the annual estimated cost of the total workers’ compensation system before the impact of the pandemic.

Similarly, the New York Compensation Insurance Rating Board conducted a legislative analysis of the potential cost impacts of COVID-19 virus exposure as an occupational disease. It estimated in late March that presumptive COVID-19 coverage could cost the system more than $31 billion – more than triple the state comp system’s current annual losses in both the insured and self-insured markets.

 

Reporting payroll of furloughed workers, class code changes, repurposing operations

NCCI

On April 23, 2020, NCCI published Item B-1441 – Revisions to NCCI Manual Rules Related to the COVID-19 (Coronavirus) Pandemic. This was filed to all NCCI states and submitted to the independent bureau states for their consideration. The states that have adopted these rules as of April 30 include Alabama, Arkansas, Colorado, Connecticut, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Mississippi, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, and West Virginia. Wisconsin, which is an independent bureau state, was the first state to approve new rules. Michigan has indicated they are adopting the rule for their residual market and carriers operating in Michigan can adopt the rule.

The key points are:

  • These rules will apply beginning March 1, 2020. Any policy that was effective on 3/1/20 is covered by these rules. It will be effective retroactively to March 1, 2020 and will expire on December 31, though this date may be adjusted as circumstances warrant.
  • Employers that have furloughed employees, but continue to pay them, are allowed to exclude these payments from the premium calculation and payroll is reported to code 0012. To do so, the employer must keep “separate, accurate, and verifiable records” to provide the insurance company auditor when the policy expires. Without these records, the insurance company will have to include the pay in the premium calculation.
  • This includes paid sick leave or paid FMLA approved by congressional action in response to the crisis.
  • Payroll reported to code 0012 is also excluded from Experience Rating
  • This rule is only applicable when an employee is not performing ANY duties. If the worker is performing tasks in service of the employer, the payroll will be reported to the appropriate classification, and premium will be charged appropriately.
  • This filing did not address treatment of COVID-19 claims on the experience mod, although it is expected to be addressed in the future.

Another consideration is class code changes now that so many employees are working from home. Kevin Ring, the Lead Analyst for the Institute of WorkComp Professionals, notes whether a class code assignment can change depends on the circumstances. If the employee was already classified in 8810 (Clerical Office), the classification would change to 8871 (Clerical Telecommuter).

For other employees to qualify for a change in classification, the job must change. For example: You operate a manufacturing facility and have an employee who programs CNC machines for your manufacturing process. The job consisted of not only writing programs but inspecting parts to ensure the program is working correctly. As a result of the crisis, this employee is now working from home writing programs. This employee could have their payroll re-classified into 8871 because they are currently doing a purely clerical job, with no exposure to the manufacturing shop.

Some classifications include clerical employees in their definition. In these cases, reclassifying employees who are now working from home would not be allowed.

Stay current on NCCI updates here.

 

WCIRB – California

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has made a special regulatory filing to the California Insurance Commissioner. Major provisions include:

  • Exclude COVID-19 claims from experience rating
  • Exclude payments to employees who continue to be paid while not working
  • Allow assignment of classification 8810 for temporary change in duties

Stay current on California updates here.

New Jersey has adopted similar changes.

Also, manufacturers that shift gears and repurpose their operations to meet changing customer demand, or to produce gowns, masks, and ventilators amid the COVID-19 pandemic, need to be sure that their insurance coverage is appropriate. Creating a new or different product can change the company’s risk profile and exposure base. While some companies may have government immunity under the Defense Production Act, it’s important to seek counsel to better understand the liabilities involved.

There are a lot of moving parts right now, including premium reductions, class codes, industry classifications,payroll changes, and the impact on the Mod. It’s critical to discuss your situation with your Certified WorkComp Advisor to find the best moves for your business.

 

Claims/premium impact

In a national survey of 15 workers’ compensation insurance carriers by Health Strategy Associates, respondents said on a scale of 1-5 (with 5 being extremely significant), COVID-19 will have an impact of 4.4 on the industry. The largest impacts are projected to come from an increase in death claims and delayed return to work. The rapidly changing legislative environment combined with the uncertainty of the future makes it difficult to know what the long-range impact of COVID-19 will be on workers’ compensation. However, this is what we do know:

  • In the short-term, carriers are being impacted by premium reductions, declining employer payrolls, premium leniency, and cancellation policies.
  • The impact will vary significantly by industry. Some industries will experience increased claims due to the disease, while others will see a decrease stemming from shelter-in-place orders and a home-based workforce.
  • Employees will be filing workers comp claims related to the COVID-19 pandemic, but it remains unclear what proportion of the claims will be compensable. Largely, this will be determined by what is covered by the emergency legislative and regulatory action in the state and litigation. For covered industries, workers’ comp could be responsible for medical treatment, total temporary disability during quarantine and/or recovery, a settlement if the worker suffers permanent damage to the lungs or other organs from COVID-19, or worse, a death benefit.
  • In other cases, it is very much a gray area right now. The industry is adapting to a seismic shift from injury-based to disease-based claims, which are much more complex. Because of the community spread, it will be very difficult to prove that COVID-19 was contracted at work; however, when multiple co-workers become sick, a stronger case exists for employees. Some pundits suggest it will be an emotionally-charged issue and employers face tough decisions. It is expected the coverage will differ significantly across states.
  • Expect more lawsuits alleging liability for a worker’s acquisition of COVID-19 in the workplace. Recently, a wrongful death suit was filed against Walmart in Illinois by the family of an employee who died of COVID-19, alleging that the company failed to adequately clean the facility, hired new workers without adequately screening for COVID-19, and failed to follow relevant guidelines for maintaining a safe workplace.
  • The duration of open claims for injured workers is rising. Access to care is limited as the medical system is overtaxed with seriously ill COVD-19 patients and, when available, injured workers are unwilling to get treatment they need because of COVID-19 risks. Modified work is unavailable in many industries and in wage loss states indemnity benefits often cannot be stopped without a return to work. The adjudication of work comp cases is on hold in many states. The longer the delay goes on, the more likely the injured worker’s treatment is to get off track, raising the cost of the claim.The quick ramping up of telemedicine has helped, but not all workers comp injuries are appropriate for telemedicine.
  • The interaction of leave and unpaid leave claims instituted by employers responding to voluntary or government-mandated programs and workers’ comp should be examined. Should an injured employee forgo workers’ compensation and instead collect benefits under one of the new federally funded programs related to COVID-19?
  • The dramatic increase in the number of people working from home (WFH) in response to the outbreak creates additional challenges. There is very little case law regarding what constitutes a compensable claim when working at home.Employers had little time for home assessments and increased ergonomic training. As a result, employers may see a spike in common ergonomic injuries such as carpal tunnel syndrome, tendinitis, lower back injuries and more.

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

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

HR Tip: Resources to help navigate the Families First Coronavirus Response Act (FFCRA), IRS tax relief, and related employment laws

On Tuesday, March 24, the Department of Labor (DOL) announced that the effective date of the leaves available through the Families First Coronavirus Response Act (FFCRA) will be April 1, 2020. The U.S. Department of Labor (DOL) issued regulations for the Families First Coronavirus Response Act (FFCRA) on April 1, which confirmed that employees must give notice to their employers of the need to take leave and provide documentation to support paid sick leave and emergency family and medical leave. The IRS also provided guidance on needed documentation. Here are current resources:

Temporary guidance

IRS guidance

Families First Coronavirus Response Act: Employee Paid Leave Rights

Families First Coronavirus Response Act: Employer Paid Leave Requirements

 

Q & A

Families First Coronavirus Response Act: Questions and Answers

COVID-19 and the Fair Labor Standards Act: Questions and Answers

COVID-19 and the Family and Medical Leave Act: Questions and Answers

 

Posters

Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

Federal Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

Families First Coronavirus Response Act Notice – Frequently Asked Questions

 

Tax credits for small and mid-sized businesses

Under the act, employers are able to recoup these payments immediately by keeping a portion of the deposit it otherwise would pay as part of their employees’ federal, social security and Medicare taxes. Eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS. If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS.

Employers need to keep accurate documentation on these issues.

More information

IRS Coronavirus Tax Relief

 

Field Assistance Bulletin

Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA)

 

HIPPA, FMLA, and ADA

NIH HIPAA Privacy and Novel Coronavirus

The FMLA and Leave

ADA Accommodation

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

FAQ: Coronavirus and the workplace

Q. Can employers ask employees who exhibit symptoms to leave work and stay home?

A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC Guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act addresses these issues.

Q. What should we do if one of our employees has COVID-19 symptoms or tests positive for COVID-19?

A. “Employers should send the employee home and require them to stay home until they are able to return under CDC guidance. It is important to note that return to work standards and time frames may be different depending on circumstances. Employers should review the CDC’s website for guidance. If an employee tests positive, the employer should also consider notifying other employees who may have been exposed at work, but maintain the confidentiality of the employee who tested positive. A good CDC reference for employers” – East Coast Risk Management

Q. What should we do if one of our employees has had contact with a person with COVD-19 symptoms or someone who has tested positive for COVID-19?

A. “Employers should review the risk categories established by the CDC and develop a response based on that guidance. This CDC guidance ultimately puts employees into a risk category based on symptoms, travel, and level of contact with a symptomatic individual. If there is a risk that the employee’s contact with another person puts them at risk of contracting COVID-19, the employer should send the employee home and require them to stay home until they are able to return under CDC guidance. The CDC risk assessment guidance can be found here.” – East Coast Risk Management

Q. How much information may an employer request when an employee calls in sick to work?

A. The EEOC has issued guidance, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, that explains during a pandemic, ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. They may also require the employee to undergo medical testing before returning to work.

Q. When may an employer take the body temperature of employees during the COVID-19 pandemic?

A. While under normal circumstances, measuring an employee’s temperature is considered a medical exam and prohibited under the ADA, employers may now measure employees’ body temperature. However, the practice needs to be consistently applied and employers need to know that some people with COVID-19 do not have a fever, and not all fevers are COVID-19 related. The risks to the worker taking temperature must be evaluated and proper PPE provided to minimize the hazard. OSHA offers guidelines.

Q. What are the most effective cleaning products to sanitize our facility?

A. The Environmental Protection Agency has added nearly 200 registered disinfectants to an online list of cleaning products that can help prevent and reduce the spread of the coronavirus and has made the list sortable, searchable and printable. Employers must also ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200) and to provide proper PPE and training, when necessary. If this is a non-typical task for an employee, they must be trained at the time of their first assignment.

Q. When employees return to work, can employers require medical documentation?

A. Yes, however, as a practical matter, doctors and other health care professionals may be too busy to provide such documentation in a timely way. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, or an e-mail to certify that an individual does not have the pandemic virus. A best practice would be to follow CDC guidance and instructions from public health authorities.

Q. Do we need to report a confirmed or suspected case of coronavirus to the CDC or local health department?

A. No, the health care professionals will handle the reporting requirements.

 

Workers’ Comp – experience mod and audit considerations

Q. If a Comp claim is accepted will it go on the experience mod?

A. As it stands, yes. This question came up when Cause of Loss codes were updated this week to include a code for COVID-19. Every injury has a Cause of Loss code. It’s how rating bureaus and other agencies track what types of injuries are happening. Except for the code for claims arising from the 9/11 attacks, none of them have been given special treatment in experience rating.

It is worth noting that it was March 2002 before the rules relating to excluding 9/11 claims were approved. If rules excluding COVID-19 claims are coming, we would expect them well after the outbreak is considered over.

Q. If a business continues to pay non-working employees, will it count on the audit? Also, will the pay employees receive under the newly passed laws for sick time or FMLA benefits count on the audit?

A. Probably so. A few states (Oregon, South Dakota, Kansas) have rules that allow for the exclusion of sick time and vacation pay.

Rule 2.F.2 of the NCCI Basic Manual allows for the reallocation of payroll for KEY employees of construction or stevedoring risks who are paid despite the business being idle. This rule is primarily used when a business goes through a seasonal shutdown but retains a few key employees who may work in the office or may not work at all. Moving their payroll to 8810 is permissible. Per communication with NCCI this week, this rule does NOT apply to any other type of business. Idle time is classified the same as being at work.

Our recommendation: EVERY business in either of these situations should keep a close accounting of the money spent. If the rules change in the future, only those with the appropriate records will be able to take advantage of them.

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Coronavirus: Workers’ Compensation and OSHA considerations

Worker’s Compensation

Compensability

Occupational disease law is written with the intent to cover diseases that arise in the course and scope of employment and have an exposure that is elevated from the exposure of the general public. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. A common disease that the public is exposed to is generally not covered under the occupational disease category, such as the flu and common colds. Furthermore, the National Council on Compensation Insurance (NCCI) notes that that many state workers’ comp statutes exclude “ordinary diseases of life.”

Therefore, in most situations, it would be difficult to prove that coronavirus resulted from a risk at work, as community spread has made the risk prevalent outside of the workplace and the incubation period can be anywhere from 2 to 14 days.

However, there are exceptions, notably healthcare providers and first responders caring for patients diagnosed with the coronavirus. Here employees are at a substantially greater risk of contracting coronavirus than the risk experienced by the general public.

Washington state, which operates a monopoly workers’ comp system, issued a directive providing workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. However, it also noted in most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition, and will be reviewed on a case-by-case basis. North Dakota has issued a similar directive. Other states may follow suit, so it is important to stay up-to-date.

Of course, claims will still be filed and will be determined on a case-by-case basis. Claim adjusters will look to see if employees can prove that they contracted the virus after an exposure at work, the exposure was unique to the workplace, there are no alternative means of exposure, and they can provide medical evidence to support the claim.

The Workers’ Compensation Insurance Rating Bureau of California is partnering with other work comp organizations around the country to create unique codes to identify COVID-19 claims. The new codes will allow the costs of the claims to be tracked, measured, and properly used for pure premium ratemaking and experience rating.

On-site employees: manufacturers, construction, retail

Industries such as manufacturing, construction, and retail face the reality that employees must work onsite. The challenge to keep workers safe in these environments becomes more daunting every day. It’s important to recognize that the uncertainty created by the spread of the virus is a major distraction and distractions can lead to accidents. Safety efforts must adapt to current realities and be the number one priority.

The CDC recommends that employers “actively encourage sick employees to stay home.” To identify high-risk employees, some employers have instituted temperature screening upon entering work, which requires training and protecting the worker who is taking temperatures.

Others have encouraged self-identification and relaxed paid leave policies to urge those with symptoms or those who live with individuals with symptoms to remain at home. Responsible employers have trained managers and supervisors to identify symptoms of possible infection in coworkers and encourage reporting, as well as train employees on responsible behavior, such as handwashing, social distancing, sharing cups, utensils, etc.

Staggering shifts, break and lunch times, adding night or weekend shifts to help with family obligations are other actions employers are taking to keep workers safe. Other steps include installing barriers or creating “zones” to limit employee interaction, cross-training employees, restricting visitors, increasing frequency of sanitizing effort, providing sanitary wipes throughout the facility, and urging employees to follow CDC guidance. Identifying key personnel and creating schedules to isolate them can help keep the facility open.

For construction, the Center for Construction Research and Training (CPWR) has released guidance and offered resources for employees and employers on safety protocols in both English and Spanish.

In retail, it’s important to recognize that even “essential” shopping can endanger low-paid workers who are not trained in pandemic preparedness. Grocery stores are ramping up efforts at disease control, cleaning surfaces and carts more aggressively, providing hand sanitizers, encouraging frequent handwashing, and limiting occupancy and controlling access to checkout lines to ensure social distancing. Some have lifted restrictions on wearing gloves and masks, reduced operating hours, installed sneeze guard barriers at checkout, and increased pay. Even with these efforts, the stores are often busy and understaffed, and employees feel anxious and vulnerable. Educating employees on how to stay safe and letting them know they are valued goes a long way.

The CDC has published an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) with helpful information on what to do if there is a confirmed or suspected case in the workplace.

Telecommuting

The increase in telecommuting opens up another exposure for employers who are not used to having their workers work from home. Even those telecommuters who already know the drill about ensuring safe workspaces are facing different situations with children at home. Everyone is in an environment that is emotionally stressful. It’s good to periodically remind workers that they shouldn’t be sitting on a soft couch working in an awkward posture all day…that they need to be focused on proper positioning of back, wrist, and feet, and that they shouldn’t be plugging in power cords wherever they can and creating trip hazards. Tips on maintaining safe home workplaces are helpful.

Another issue facing employers is how to handle requests by employees for equipment such as an office chair to be delivered to their home. The need to set up, properly train the employee on how to adjust the chair, consistent treatment of all employees, and what to do with the equipment when the worker returns to the office should be considered.

Further, if faced with telecommuting requests by employees with concerns of potential exposure when an office is still open or when offices reopen, it’s important to assess whether such concern is reasonable before refusing this accommodation.

Existing workers’ compensation claims

Access to non-urgent medical care has been greatly affected during this crisis. Expect delays and longer recovery periods. Staying in touch with the injured employee and offering support is critical. Many workers compensation courts have suspended hearings and in-person meetings, while others are allowing virtual or telephone hearing options.

One positive note is the increased use of telemedicine, which the industry has been slow to adopt. Texas relaxed its rules regarding telemedicine and no longer requires patients to visit a doctor’s office before qualifying for telemedicine services and Ohio relaxed its rules that previously restricted the use of the home for video-based screening.

Privacy

Employers must be vigilant in complying with the various labor and employment laws implicated by the virus and be extremely cautious about sharing any health information related to 2019-nCoV diagnosis. Employers can notify managers, supervisors, and other employees who may have been exposed to an employee who contracted the virus but should not reveal the name of the employee, and discourage gossiping and presumptions.

Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. Everyone should refrain from offering medical opinions, but can encourage employees to speak with their physician, local health department, and to use telemedicine.

If an employer opts to take temperatures of workers, it is still considered a medical exam and protected by the ADA. Information must be kept private and in a confidential medical file.

Employee relations

This is a time of unprecedented anxiety and worry for everyone. Be patient with employees as they deal with the fear of being “essential” employees exposed to public interaction, learn “social distancing” at a manufacturing or construction site, adjust to working remotely, and worry about their economic future.

The fastest way to alienate employees is not to show respect for their safety. Anything employers can do to calm employees will help keep the operation going and build loyalty.

Set clear, reasonable guidelines and expectations. Allow employees to openly discuss their questions and concerns without fear of reprisal. Provide daily guidance on key topics like self-care and staying safe. Tell the workforce what the company is doing, how you’re doing it, and what is likely to happen next.

Employees want and need to feel valued and look to their executive team for confidence that there is a way forward. It will take their commitment and engagement to see the company through the crisis. The employer’s actions now will leave an indelible mark on the attitude, retention, and loyalty of employees.

Suggested resources:

CDC: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)

Bain : A CEO Plan for Coronavirus: Actions to Take Now

Gallup: COVID-19: What Employees Need From Leaders Right Now

National Institutes of Health: COVID-19 website featuring health and safety resources for workers who may be at risk of exposure to COVID-19.

Center for Construction Research and Training (CPWR): guidance and resources

The Scary Times Success Manual

OSHA

Dedicated webpage and guidance document

OSHA issued guidance on preparing workplaces for COVID-19, in both English and Spanish. It divides jobs into four risk exposure levels – very high, high, medium, and lower – and specifies what employers should do to protect workers based on their level of exposure. It also suggests employers review their procedures regarding contractors, visitors, and other third parties who access the workplace.

It also has a webpage providing information on hazard recognition, medical information, control and prevention, and additional resources.

Applicable standards

Although OSHA does not have a standard that covers the coronavirus (an infectious disease rule has languished for ten years), its webpage on COVID-19, notes that the General Duty Clause applies. This is a catchall the agency uses to cite employers where there is no standard that applies to the particular hazard. It requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Failure to take steps to protect employees in accordance with OSHA and CDC guidelines can result in enforcement action.

The Personal Protective Equipment (PPE) standard, 29 CFR 1910.132, (in general industry), which requires using gloves, eye and face protection, and respiratory protection also comes into play as does Respiratory Protection, 29 CFR 1910.134.

In California, 019-nCoV is covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets and the agency recently issued guidance on the requirements to protect workers.

 

Recording and reporting requirements

Recording

Although OSHA’s recordkeeping rule exempts common colds and flu, it has explicitly stated that COVID-19 is a recordable illness when a worker is infected on the job. According to OSHA’s website COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19
  • The case is work-related, as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

With the exception of health care, it is going to be difficult to connect work-relatedness of individual cases as community spread has set in. It is going to be necessary to determine on a case-by-case basis, whether it is more likely than not that an event or exposure in the workplace caused or contributed to the illness. For example, if an employee diagnosed with coronavirus was in the workplace after exposure, and a cluster of employees he/she was in close contact came down with coronavirus, it may be work-related because if an exposure in the work environment caused or contributed to the illness, there is a presumption the illness is work related.

An employee reporting an illness to the employer and/or asserting it was contracted in the workplace does not make the case recordable. It is the employer’s responsibility to determine work-relatedness and to document the decision. Further, if the exposure occurred while the employee was working outside the U.S. it is not recordable. “Injuries and illnesses which occur while the employee is traveling in places where OSHA does not have jurisdiction do not need to be recorded on the company OSHA log.”

Reporting

The existing criteria for reporting severe injuries apply to COVID-19 cases, including work-relatedness. Employers must report any hospitalization of a worker if the employee is admitted to the in-patient service for treatment within 24 hours. Given the latency/incubation period between exposure/contraction of the virus, and the time symptoms appear or are significant enough to result in an in-patient hospitalization, it’s unlikely many hospitalization reports will be filed.

Employees must report a fatality to OSHA when it is work related, a confirmed diagnosis, and the employee succumbed to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.

 

Relief for healthcare respiratory protection annual fit-testing

In an effort to preserve the supply of N95 filtering facepiece respirators during the COVID-19 pandemic, OSHA temporarily suspended its requirement for annual respirator fit testing in the health care industry. The temporary enforcement guidance will remain in place until further notice.

Voluntary use respirators

In many industries, employees are asking to wear respirators/masks. If employers permit “voluntary use” (not required by regulations), the employer still must meet certain obligations set forth by OSHA. Employers are also permitted to decline to allow employees voluntary use respirators including N95 masks, if a respirator is not required because of exposures levels in the workplace.

Telecommuting

Regulation on telecommuting is lax and the due diligence is up to employers. OSHA has repeatedly said that it will not investigate the safety of home offices.

However, there is clear guidance on recording injuries while working from home in regulation 29 C.F.R. § 1904.5(b)(7) : “How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”

The regulation gives a few examples.

  • “If an employee drops a box of work documents and injures his or her foot, the case is considered work-related.”
  • “If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related.”

Meeting regulatory deadlines

While it is anticipated that OSHA will cut some slack on enforcing regulatory deadlines, such as annual LOTO inspections and three-year PS audits, it’s important to document why the deadline was missed and undertake interim or alternative measures where feasible. Simply saying, there was a pandemic is not enough.

Retaliation when employees refuse to work

Co-workers of sick employees who refuse to work may be protected by OSHA’s anti-retaliation provisions. The worker must believe in good faith that there is an imminent danger in the workplace and insufficient time to eliminate the danger through regulatory enforcement. Experts suggest that when employees are being rotated into different positions and asked to do things they normally do not do with minimal training or when a group of employees feels their safety is threatened, the risk of successful retaliation suits is higher.

If the employer is following all recommended CDC guidance, communicating the practices may ease the anxiety. However, if the employee still refuses to work, termination could be a risk, if the fear is reasonable.

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