Legal Corner

ADA
Ability to delegate does not remove essential functions of job

In Tonyan v. Dunham’s Athleisure Corp., a store manager injured her shoulder and was fired when she could no longer perform some of the essential functions of her job, including lifting and reaching. She argued that such tasks only took up about 30% of the workday and could be delegated. However, the Seventh Circuit court disagreed, noting that the essential functions of the job were clearly and specifically defined in the job description and the ability to delegate was always available, but it does not mean it is appropriate to do so.

Failed case of fired worker suffering from Tourette’s syndrome reinstated

The 1st U.S. Circuit Court of Appeals in Boston in Brian Bell v. O’Reilly Auto Enterprises LLC, d/b/a/ O’Reilly Auto Parts, reinstated litigation filed by a fired auto parts store manager who suffers from Tourette’s syndrome, citing incorrect instructions given by the judge to the jury. The judge’s instructions in the case “required an employee to demonstrate that he could not perform the essential functions of his job without accommodation,” and may have favored the employer. The correct standard to prove a failure to accommodate claim is an employee must show that he is handicapped within the ADA’s meaning, he can perform the job’s essential functions with or without reasonable accommodation, and the employer knew of the disability but declined to reasonably accommodate it upon request.

Workers’ Compensation
Uber and Lyft get reprieve from appeals court – California

In early August, a lower court ordered Uber Technologies Inc. and Lyft Inc. to treat their drivers as employees. The companies successfully sought the intervention of the First District Court of Appeal in San Francisco to block the injunction order, giving them a reprieve at least for a few months. There is a ballot initiative in November that will let the app-based companies continue to treat drivers as independent contractors, thus making them exempt from state laws mandating overtime, sick leave, and expense reimbursement, but providing “alternative benefits.”

$11.25M workers’ comp settlement – California

A 35-year-old construction worker received what could be a record-breaking workers’ comp settlement of $11.25M. He suffered a traumatic brain injury and related complications when he fell four stories through an elevator shaft at a construction site in Irvine.

Workers’ Comp is the exclusive remedy for couple severely injured while assisting law enforcement officials – California

In Gund v. County of Trinity, a middle-aged couple was asked by the Sheriff’s office, which was nearly 100 miles away, to check on a woman who lived nearby in the remote area and had called 911. The reason for the call was unknown and it was suggested it could be related to an oncoming storm, although attempts to call back the woman failed.

When they arrived, they were attacked by a man who had killed the woman and her boyfriend and sustained serious injuries. In a 5-2 decision, the Supreme Court affirmed a trial court ruling that workers’ comp was their exclusive remedy since they were engaged in law enforcement activities at the time. California laws treat members of the public who engage in “active law enforcement service” at a peace officer’s request as eligible for workers’ compensation benefits.

McDonald’s sues insurer for coverage while fighting employee class action suit over unsafe working practices during COVID-19 – Illinois

In McDonald’s Corp. v. Austin Mut. Ins. Co., McDonald’s Corp. is suing its insurer for coverage of its legal fees while defending an employee class-action suit, which seeks to force the company to adopt certain safety measures, including requiring face coverings and offering hand sanitizer, during the pandemic.

The Chicago-based fast food chain and two of its franchise owners filed the action against Austin Mutual Insurance Co. in federal court, seeking a judgment that the insurer has a contractual obligation to defend them in the worker safety litigation. According to the complaint, McDonald’s has already incurred more than $1.5 million in attorney’s fees, costs, and expenses and the franchise owners have incurred about $116,000.

Certified mail not required for policy cancellation – Massachusetts

In Espinal’s Case, Nos. 19-P-1483 and 19-P-1484, the Massachusetts Appeals Board overturned a ruling that an insurance carrier had not canceled an assigned risk policy because it was sent by first-class mail, not certified mail. Cruz Abatement & Contracting Services LLC workers’ comp coverage was canceled because of non-payment and it received an assigned risk workers’ compensation policy from ACE American Insurance Co. After issuance and cancellation for nonpayment of two policies by ACE, the company was again assigned to ACE for Feb. 26, 2016, until Feb. 26, 2017, and again did not pay the invoice.

ACE sent a notice of cancellation to the address on the application by first class mail and received a certificate of mailing receipt from the PO. Cruz was hired to be a subcontractor on a demolition job and two workers were injured. Massachusetts General Law Section 187C governs insurance cancellations and authorizes notice by first class mail without requiring proof of receipt of notice by the insured. Section 65B, which governs the cancellation of assigned risk policies, has an additional provision that the employers have an opportunity to file objections with the Department of Industrial Accidents within 10 days after receipt of notice of cancellation. A judge and the Industrial Accident Reviewing Board interpreted this to mean it must be sent by certified mail return receipt requested, but the Appeals Board overturned, noting the statute did not include this requirement.

Employer not solely liable for PTD benefits – Missouri

In Williams v. City of Jennings, a correctional officer was attacked by an inmate and was awarded permanent total disability (PTD) based on her depression and anxiety arising from the work injuries. At the hearing, she and medical experts acknowledged that she had a pre-existing condition of panic and anxiety attacks.

The Court of Appeals noted that the decision should have addressed the fact that the pre-existing psychological conditions were partly responsible for the way she responded to the work injury and, therefore, contributed to her permanent total disability. The Second Injury Fund compensates workers who are permanently and totally disabled by a combination of a work injury with a pre-existing disability and the employer should not have been held solely responsible for her benefits.

Appellate court refuses to hear controversial case on benefits to worker who died of natural causes – New York

An appellate court refused to hear an appeal in Kanye Green v. Dutchess County Board of Cooperative Education Services. The decision by the Workers’ Compensation Board was controversial because it not only reversed precedent about continuing benefits to the family of an injured worker who died of natural causes but also did not direct that benefits be paid when the decision was appealed. The worker died of a heart problem with less than a year remaining on his weekly benefits, which his son sought.

A previous court decision found that nonschedule loss of wage-earning capacity claims was not the same as schedule losses and wage-replacement benefits should not continue because a dead worker has no wage-earning capacity. It’s unknown if the employer will appeal.

Comp carrier can’t recover benefits from widow who sued – North Carolina

In Walker v. K&W Cafeterias, a worker suffered fatal injuries in a work-related auto accident and his widow was awarded medical and death benefits of over $333,000. The worker was employed by a North Carolina company and was driving a company car, but the accident occurred in South Carolina. Later, the widow filed a wrongful death case in South Carolina seeking damages from the driver of the motor vehicle who was at fault in the accident and was awarded $962,500 in a settlement.

The comp insurer filed a subrogation lien, which was approved by the Workers’ Compensation Commission and the Court of Appeals but overturned by the Supreme Court. The court found that while the commercial policy was purchased in North Carolina, it included an endorsement to conform with South Carolina insurance laws since the car was registered, garaged, and driven in South Carolina. South Carolina insurance law bars subrogation of UIM proceeds.

Non-OSHA compliant tractor seat insufficient for wrongful death suit – North Carolina

A court of appeals found that buying a non-OSHA compliant tractor seat without a seatbelt from eBay didn’t rise to the level of intentional misconduct and, therefore, the estate could not sue the company under tort law. In Hidalgo v. Erosion Control Services Inc., the worker was ejected from a tractor on a construction site and fatally injured when it rolled on top of him.

The estate alleged that the company was negligent – the seat on the tractor was replaced with one purchased on eBay that didn’t have a seatbelt because the manufacturer was unable to supply one. Furthermore, OSHA cited the company for four workplace safety violations related to the seatbelt and safety measures for the tractor. However, the company argued that the worker was operating the tractor outside of the designated project area where no work was going on.

While a trial court found for the estate, the appeals court found the seat created an unsafe condition but it did not make it substantially certain that death or serious injury would occur. In overturning the decision, the court noted there was no pattern of OSHA violations regarding tractor safety, there was no work going on in the area it occurred, and the seat had been used for more than a year without incident.

Court clarifies total disability benefits reinstatement post-Protz – Pennsylvania

In White vs. WCAB, the Commonwealth Court ruled that an injured worker is entitled to reinstatement of her total disability benefits retroactive to the date she filed her petition, not the date upon which her benefits were modified. Based on the Commonwealth Court’s decision in Protz v. WCAB, the injured worker filed a reinstatement petition seeking to nullify her IRE which had changed her condition from totally to partially disabled.

A WCJ approved the petition and the Appeal Board modified the ruling, noting the reinstatement was effective on the date she filed her reinstatement petition in October 2015, not the date of the change in her disability status. The Commonwealth Court agreed.

Truck driver was not statutory employee and can proceed with tort – Pennsylvania

In Dobransky v. EQT Production Co., a truck driver delivered a load of barite, which is a weighting agent to increase the density of industrial fluids, to a well site when a cap of a storage tank blew off and released barite into his face. He filed suit against EQT Production Co. and Halliburton Energy Services Inc. that owned or maintained the tanks. The companies sought summary judgment, citing workers comp’s exclusive remedy.

A trial judge agreed, but the Superior Court vacated the decision, noting a contractor can be deemed the statutory employer of a subcontractor’s employee only if the requirements of Section 302(a)(2) of the Workers’ Compensation Act are met. The contracted work must include removal, excavation, or drilling for minerals. In this case, the contract was to transport and unload materials.

Comp denied for Pittsburgh prosecutors who contracted COVID-19 – Pennsylvania

Two prosecutors who believe they contracted COVID-19 at the Allegheny County Courthouse where a court reporter tested positive, have had their claims denied. Both prosecutors spent time in the hospital and one died. The deceased prosecutor believed he contracted the virus from his colleague with whom he shared a small office and had filed a complaint with OSHA over how the notification of cases at the courthouse was being managed. The claims were denied because they were not a work-related injury. An appeal is expected.

Meaningful return to work must exist for cap on PPD Benefits – Tennessee

In Coates v. Tyson Foods, a supervisor who also performed physical work developed tennis elbow in both elbows and needed surgery. Following surgery, he took FMLA leave, which was extended, but he was unable to return to work when it ended. The company filled his position and told him when he could return without restrictions he’d have to start at the bottom again.

He left and found work as a farmhand and filed for comp benefits, and then sued. A trial court determined that because the supervisor didn’t have a meaningful return to work, he was owed temporary total disability and PPD benefits and his benefits were not subject to a statutory 1.5 multiplier cap. The Supreme Court agreed noting that the company didn’t make a reasonable effort to return the supervisor to his job.

Disagreement with IME physician’s opinion not sufficient to rebut presumption of correctness – Tennessee

In Rodgers v. Rent-A-Center East, Inc., an employee was injured when he was rear-ended in an automobile accident while running errands for the store manager. After he received treatment for back pain, two doctors referred by the employer concurred that he had a 0% permanent impairment rating. He presented conflicting reports from his physicians who assigned a 7% impairment rating and the employer requested an independent medical evaluation from the Medical Impairment Registry.The IME physician assigned a 2% impairment rating.

A bench trial judge agreed with his personal physicians and assigned a permanent impairment of 7% with a multiplier of 3 because there was no meaningful return to work. However, the Supreme Court noted under state law, a MIR physician’s rating is presumed to be accurate and the employee did not meet high burden of proof to rebut the presumption of correctness.

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

OSHA watch

COVID-19

Federal

For more COVID-19 information

Cal/OSHA

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

Michigan OSHA

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

Oregon OSHA

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

OIG report on whistleblower complaints

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

Final beryllium standard for construction and shipyards published

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

Reminder: resources available on disaster response

Hurricanes

Tornedos

Floods

Cal-OSHA reminds employers to protect workers from wildfire smoke

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

Recent fines and awards

California

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

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

Florida

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

Georgia

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

Illinois

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

Massachusetts

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

Missouri

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

North Carolina

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

Tennessee

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

Wisconsin

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

For additional information.

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

HR Tip: New York federal court decision overturning provisions of FFCRA creates uncertainty for employers

Shortly after the regulations for the Families First Coronavirus Response Act (FFCRA) were issued, the State of New York sued the DOL, claiming that the agency unlawfully denied leave to otherwise eligible employees and exceeded their statutory authority in drafting the final regulations. The court decision, issued on August 3, invalidated four of the regulations:

  • The DOL’s requirement that FFCRA leave is available only when there is work available and employees can be denied leave under certain circumstances if there is no work available
  • The definition of healthcare providers under a provision that excludes healthcare providers from having to provide leave benefits is too broad
  • The requirement that employees obtain consent from the employer for intermittent leave for certain reasons
  • The requirement that documentation supporting the need for FFCRA leave is required before an employee takes FFCRA leave

While the decision clearly applies to employers within the court’s jurisdiction (Manhattan and the Bronx in New York City and Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan counties in New York state), its applicability elsewhere, particularly in other states, is unclear. In light of this ruling, the DOL has issued revised regulations. The revised rule clarifies workers’ rights and employers’ responsibilities regarding FFCRA paid leave.

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

EEOC issues two new technical bulletins

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

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

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

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

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

Drug testing trends

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

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

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

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

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

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

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

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

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

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

Regulatory, legislative, and guidance updates – federal

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

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

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

Executive order makes permanent telehealth rules, excluding PT

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

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

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

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

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

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

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

For OSHA updates, see the OSHA Watch section.

Regulatory, legislative, and guidance updates – state

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawsuits on the rise

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

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

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

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

Things you should know

COVID-19 pandemic information

  • Worker advocacy groups create guidance for apparel and textile workersThe Worker Rights Consortium and the Maquiladora Health and Safety Support Network have issued a set of guidelines intended to protect apparel and textile workers during the COVID-19 pandemic.
  • EPA issues respirator guidance for agricultural pesticide handlersThe Environmental Protection Agency (EPA) has issued temporary guidance intended to help protect workers who handle agricultural pesticides against exposure to COVID-19.
  • ‘Extremely hazardous’: Alert warns against using ethylene oxide to sterilize masks, respiratorsEthylene oxide should not be used to sterilize filtering facepiece respirators for reuse because “this extremely hazardous toxic chemical poses a severe risk to human health,” the Washington State Department of Labor & Industries warns in a new alert.

 

NLRB: Employers can ban cellphone use if…

Adding to an earlier decision related to driving and cellphone use, The National Labor Relations Board (NLRB) recently decided that it is legal for employers to ban the use of cellphones by employees when the restrictions are based on safety and security concerns. The new case involved Cott Beverages Inc., an American-Canadian beverage and food service company, which prohibits cell phones on the shop floor and work stations. While The Board’s May 20 decision recognized that this rule would potentially infringe on employees’ ability to make calls or recordings about workplace issues, it is outweighed by the company’s legitimate business interests.

 

Contracting trades lead in opioid prescriptions in workers comp

Although opioid use has declined in the contracting industry, workers compensation claims still have higher opioid usage and almost double the costs when compared with other industry groups, according to a report, released by the National Council on Compensation Insurance. The average cost per claim in construction is $12,760, compared to $5,608 in all other industry segments.

 

WCRI state data on opioid regulations

As of 2020 most states have regulations on prescribing and managing opioids, but only 15 states have drug formularies and only 17 states definitively include “mental health services” for “drug rehabilitation” in workers comp statute, according to a report by the Workers’ Compensation Research Institute (WCRI).

 

CMS to authorize MSPRP users to view and print conditional payment correspondence

The Centers for Medicare and Medicaid Services (CMS) has issued a notice that starting July 13, 2020, authorized Medicare Secondary Payer Recovery Portal (MSPRP) users will be allowed to view and print CMS conditional payment correspondence.

 

Marijuana tops list of substances identified in CMV drivers’ failed drug tests: FMCSA

The first report to use data from the Federal Motor Carrier Safety Administration’s new Drug and Alcohol Clearinghouse shows that, from the database’s Sept. 28 launch through May, marijuana was the most common substance found in positive drug and alcohol tests among commercial motor vehicle drivers. According to the report, 19,849 CMV drivers had at least one violation, including 10,388 positive tests for marijuana. and were unable to operate until completing the return-to-duty process.

 

Preparing chemical facilities for extreme weather events: CSB releases safety alert, video

The Chemical Safety Board has published a safety alert and video intended to help hazardous chemical facilities prepare for hurricanes and other extreme weather events.

 

State News

California

  • Became the first state to pass a regulation requiring insurance companies to reduce premiums paid by employers for workers compensation insurance, effective July 1.
  • Adopts first in the nation workplace safety standard protecting nighttime agricultural workers.

Florida

  • Policyholders of the Florida Workers Compensation Joint Underwriting Association, a self-funding plan for employers unable to purchase insurance in the voluntary market, will be eligible for the premium refund, totaling $27.6 million.

Illinois

  • On June 5, Gov. J.B. Pritzker signed H.B. 2455, which creates a rebuttable presumption for essential workers, including first responders, who presumably contracted COVID-19.
  • Workers’ Compensation Commission has posted dial-in numbers, locations, and times for July arbitration proceedings.

Massachusetts

  • The Department of Industrial Accidents will no longer accept certain forms through the mail – Form 105, an agreement to extend the 180-day payment period, and Form 113, agreement to pay compensation. The forms must be filed by email and can be sent to DIA-Form105conciliation@mass.gov and to DIA-Form113conciliation@mass.gov.

Michigan

  • Gov. Gretchen Whitmer issued an executive order on June 17 that provides a rebuttable presumption for certain workers who believe they contracted COVID-19 on the job.

Tennessee

  • Two bills that recently passed the General Assembly are summarized on the Bureau of Workers’ Compensation website. One bill extends the deadline for an injured employee to file a claim for increased benefits. The other adds requirements for out-of-state construction companies and strengthens enforcement against uninsured businesses. As of this publication, the laws have not been signed by the governor.

Virginia

  • The Safety and Health Codes Board is creating an emergency temporary standard to protect employees from the spread of COVID-19. Employers who fail to comply with the standard may be fined $13,047 for a single violation, $130,463 for willful and repeat violations, and $13,047 per day for failing to abate the risk. Employers may receive reduced penalties based on the size of their workforce, but the minimum penalty is $600. It is slated to take effect July 15.
  • The Insurance Commission posted new rules that will help implement HB 46 beginning July 1. Under the new law, employers are required to notify workers within 30 days if they intend to accept the claim, deny the claim, or if they will be seeking further information. Additionally, under the law, when the employer denies a claim, they must provide details for the denial. Failure to meet these requirements will result in a $5,000 fine per claim.

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

HR Tip: New EEOC guidance related to COVID-19 and family members

In recent guidance (Question D.13), the EEOC said that the Americans with Disabilities Act (ADA) does not require employers to accommodate workers who want to avoid exposing family members who are at higher risk of severe illness from COVID-19.

“The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.”

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

OSHA PPE requirements and COVID-19

COVID-19 has not changed an employer’s responsibilities nor the primary tenets of OSHA’s PPE Standard. Employers must begin by conducting a hazard assessment in accordance with the PPE standard (29 CFR 1910.132) to determine the PPE requirements for their unique work site. PPE should be treated as the “last line of defense” in the Hierarchy of Controls. Since elimination or replacing the hazard is unfeasible, the first line of defense is engineering controls. These are mechanical methods of separating an employee from the exposure to COVID-19, such as improved air filtration systems, increasing ventilation rates, or installing physical barriers, such as clear plastic sneeze guards.

The second line of defense is administrative controls, which include focusing on changing human behavior to reduce exposure to a hazard. Examples include asking sick employees to stay home, minimizing contact with virtual meetings, telework, making it easier for workers to stay six feet apart from each other, staggered shifts, and training workers on COVID-19 risk factors and protective behaviors. It also includes providing the resources for safe work practices such as face coverings, no-touch trash cans, hand soap, alcohol-based hand sanitizers, disinfectants, and disposable towels for cleaning work surfaces.

After considering engineering and administrative controls as well as safe work practices, employers must determine if PPE (such as gloves, gowns, surgical masks, and face shields) is necessary for employees to work safely.

In its recent Guidance on Returning to Work, OSHA reminds employers to reduce the need for PPE in light of potential equipment shortages. “If PPE is necessary to protect workers from exposure to SARS-CoV-2 during particular work tasks when other controls are insufficient or infeasible, or in the process of being implemented, employers should either consider delaying those work tasks until the risk of SARS-CoV-2 exposure subsides or utilize alternative means to accomplish business needs and provide goods and services to customers. If PPE is needed, but not available, and employers cannot identify alternative means to accomplish business needs safely, the work tasks must be discontinued.”

Special considerations related to COVID-19:

  • If temperature screening of employees and/or visitors is part of your safety program, be sure the temperature taker is trained and protected from exposure with the proper PPE.
  • Cloth face coverings are not PPE. However, they are intended to reduce the spread of potentially infectious respiratory droplets from the wearer to others. Since they are not considered PPE the employer doesn’t have to pay for them, however, it is a smart move and reassuring message to employees. OSHA has taken the position that the General Duty Clause, Section 5(a)(1), may require employers to provide such masks as they are a feasible means of abatement in a control plan. Moreover, some state and/or local governments are not only requiring employees to wear face coverings at work but are also requiring employers to provide the cloth masks.

    For more information, review OSHA’s recent Q & A on face coverings.

  • When employers require employees to wear masks, there should be specific written regulations about when they must be worn, how to care for them, what medical or other protected reasons are valid exceptions, and what are the consequences if employees decline to wear them and do not meet the exception criteria. Training also is a good idea so employees can understand they do not substitute for social distancing or other administrative controls.
  • Employers must also be aware of situations where mask wearing can make it harder to breathe and do not in themselves create a hazard. For example, the California Department of Industrial Relations, in issuing its annual summer notice to employers on heat illness prevention noted, “Employers should be aware that wearing face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating. Workers should have face coverings at all times, but they should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained.”
  • N95 masks are considered respirators and if required in the workplace are subject to significant regulatory obligations under 1910.14. However, if an employee brings their own N95 or similar filtering facemask, they should be allowed to voluntarily wear them. The only regulatory burden is to provide the employee Appendix D of 1910.134. It is recommended that other types of respirators such as half-and-full-face, tight-fitting respirators, and PAPR’s be prohibited.
  • In March and April, OSHA issued temporary enforcement memoranda on relaxing respiratory protection enforcement.
  • Some employers have opted to make gloves available to workers, particularly those in work settings where employees are frequently touching the same surfaces or objects. Gloves should cover the entire hand, up to the wrist and employees need to be instructed on the proper way to remove clothes to ensure that it does not cause contamination.

What type of PPE is best for your workplace?

OSHA’s Guidance on Preparing Workplaces for COVID-19 identifies PPE requirements based on four risk categories of worker exposure to COVID-19. Workers in the very high-risk exposure level, such as healthcare, laboratory, and morgue workers are likely to need to wear gloves, a gown, a face shield or goggles and either a face mask or a respirator. Workers who interact with known or suspected COVID-19 patients should wear a respirator. The same PPE use is recommended for workers in the high exposure risk category, including healthcare delivery and support staff, medical transport workers, and mortuary worker.

The moderate exposure risk category includes those that require frequent and/or close contact with the general public in areas with community transmission of COVID-19, such as teachers, retail outlets, restaurants, and other public businesses. OSHA recommends that workers in this category wear some combination of gloves, a mask, gown and/or a face shield or goggles based on the level of exposure. For those in the low exposure risk category, such as teleworkers, OSHA does not recommend PPE.

OSHA has also published guidance for many specific industries that offers recommendations for engineering and administrative controls as well as PPE. The PPE Safety and Health Topics page provides additional information about PPE selection, provision, use, and other related topics.

Takeaway:

Employers can help protect themselves from OSHA fines and enhance their return-to-work protocols by:

  • Updating their Injury and Illness Prevention Program to align with Fed and State OSHA guidance and any specific industry guidance.
  • Implementing the generally applicable infection prevention control measures identified above.
  • Maintaining any records on safety and health measures implemented.
  • Documenting all training provided to employees.
  • Recognize that new guidance is being issued at the federal and state level almost daily and stay up to date.

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

Early data guides employers on three key workers’ comp issues and COVID-19

Background: Divergent pressures on premiums

There’s been much speculation that workers’ comp will drive significant losses in the property/casualty industry as a result of COVID-19. On the one hand, there is the explosion of presumption laws that discard the basic tenet of workers’ comp that employees must prove they were exposed to the virus during the course of their employment and on the other hand, there are plummeting premiums driven by business closures and dramatic declines in payrolls.

In June, Arkansas, Illinois, and Michigan joined 13 other states in extending COVID-19 presumptive coverage and 12 other states are considering new laws or executive orders. The laws vary significantly, covering different groups of workers and some are rebuttable while others are conclusive. Some are retroactive, while others go into effect in conjunction with the order or law. Employers should keep up-to-date with these rules as they continue to evolve. The National Council on Compensation Insurance (NCCI) has a helpful tracker.

How this impacts premium will also depend on the state Rating Bureau’s position on including or excluding COVID-10 workers’ compensation claims on the experience mod. To date, the following states have adopted rules that exclude COVID-19 claims from the experience mod: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee,Vermont, Virginia, West Virginia, and Wisconsin.

Also, the costs of many existing claims are rising. The restrictions on nonemergency medical care have meant longer recovery periods and delayed surgeries for injured employees. Delays in adjudication have also extended the life of claims.

Countering this upward pressure on premiums is the dramatic decline in payrolls from furloughs, layoffs, reclassifications, and exclusions of money paid to employees who are not working. PPP dollars ran out at the end of June and employers who had to keep workers on the payroll to qualify, won’t have to keep them “employed.”

According to CalMatters, only 1,098 workers comp claims were filed in California in May, compared with more than 50,000 in January. Although some states have urged insurers to refund premiums, similar to what was done for auto insurance, reflecting businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic, California became the first state to pass regulation requiring insurance companies to reduce premiums paid by employers for workers compensation insurance. This emergency regulation is effective July 1, applicable to all employers in the state, retroactive to the state’s March 19 stay-at-home order and expires 60 days after the order is lifted. The amount of refund has not been calculated.

While it’s clear that these trends dramatically alter the workers’ comp landscape, uncertainty abounds and it’s too early to determine the overall impact. However, early claims data shed light on what’s occurring now.

COVID-19 claims

In Florida, the Division of Workers’ Compensation reported that there were 3,807 indemnity virus-related claims filed as of May 31. About 45% (1,718) of the claims were denied. Health care workers and those working in protective services accounted for 83.3% of the claims. About 55% of the claims from protective service workers were denied and 30% for health care workers. Service industry workers represented 9.1% of claims, office workers 6.1%, and airline workers 1.5%.

While the data did not include medical-only claims, experts have said that most coronavirus claims involve time off from work. The claims amounted to more than $3.4 million in benefits paid so far, or about 3% of the total amount of comp benefits paid for all types of claims from January through May.

Florida has a limited presumption for frontline state employees including first responders, corrections officers, child safety investigators, members of the Florida National Guard, and others who are required to contact people infected with COVID-19.

In Ohio, a monopolistic state but one without a presumption rule, some 23% of claims were denied by the state-run comp program, and 35% of COVID claims were denied by self-insurers.

In Colorado, where a presumption law was introduced in the Senate on June 2, the state’s largest workers’ comp insurer, Pinnacol Assurance, reported to the Colorado Sun that as of mid-May, it had received nearly 1,000 coronavirus-related claims. “But it said the majority of those – 60% – were filed out of an abundance of caution and were dismissed after it was later determined that the worker did not contract COVID-19.”

Of the roughly 400 claims remaining, Pinnacol said it has agreed to pay out on the majority of them, with the average claim amount running around $13,000, The majority of claims has come from first responders and healthcare workers.

According to the article, a spokesperson for Pinnacol said that if the presumption for first responders, health care workers, food-processing workers, and grocery store workers who test positive for COVID-19 passes, there could be a 27 percent increase in workers’ compensation premiums for employers in those industries. If the presumption just applies to first responders and health care workers, the premiums in those industries would triple.

The state has received 1,425 claims, about 60% have been denied by employers and about 27% approved by employers. The remainder are still being processed and investigated. The claims submitted include six for worker deaths; one approved and five remain under investigation.

In California, more than 5,000 COVID-19 related claims were filed from January to May, according to CalMatters. More than 1,000 were denied, but that was before the Governor signed an Executive Order extending protections for essential workers infected on the job on or after March 19.

According to a report by the California Workers’ Compensation Institute that examined over 1,000 claims filed as of April 30, 35% were denied, 28% accepted, and the remainder under investigation. The primary reason for denial was negative results on COVID-19 tests (70%). Lack of exposure at work accounted for 15% of denials and other reasons included refusal to take a test, working from home, and lack of symptoms. About 41 percent of workers’ comp claims were made by health workers, with another 32 percent by first responders including police and firefighters.

In the blog, Managed Care Matters, Joe Paduda of Health Strategy Associates reports that 35 workers’ comp insurers, state funds, TPAs, and service providers and large self-insured/self-administered employers were surveyed on the impact of COVID-19 claims. Payers have received about 33,000 COVID-19 claims to date and accepted just over 20% of all claims filed. The most common reasons for denial are a lack of a diagnosis, no symptoms, and/or a negative test for COVID-19.

The good news is that only a few have been very expensive claims (>$200,000) involving ICU and ventilator care.

The survey also reported on the “non-COVID” effects:

  • a drop of 25% to 50% in new injury claims since the outbreak
  • slower return to work due to an inability or unwillingness to access care and/or adjudication processes
  • respondents’ estimate that 2020 will end with a 20% decrease in the total number of claims

Of course, the impact will vary by industry with disproportionate COVID-19 claims in public entities and healthcare, and small businesses, retail, hospitality, and travel hardest hit by declining payrolls.

Takeaway

It is premature to make predictions bases on this data, particularly since much comes from the early months when there was a shortage of diagnostic tests. However, it does provide guidance on how employers should proceed when faced with a COVID-19 claim.

  • Understand the state’s position on presumption.
  • Know what information the insurance company wants to process the claim and how to identify it as a COVID-19 claim. Share any information about the job/employee that may relate to a perceived lower or higher risk of exposure from the workplace.
  • Be proactive. Find out when the symptoms began and if the diagnosis has been confirmed. Determine if the worker had contact with a person known to be infected with COVID-19 and when and where that contact occurred. Determine if immediate family members are currently showing similar symptoms or recently traveled to any high-risk areas.
  • Ask what other employees the worker may have had close contact with recently and begin contact tracing.

Substance abuse and mental health issues surge

The data indicates that employers can face a surge in addiction, stress, depression, and mental health issues as employees return to work. Isolation, uncertain job security, family distractions, and a lack of access to traditional support networks have caused some employees to turn to alcohol or drugs. At least 30 states are reporting increases in fatal opioid overdoses amid the COVID-19 pandemic. The percentages of individuals who sought screening for anxiety and depression in May were 370% and 394% higher, respectively, than in January, reported the nonprofit, Mental Health America.

Prescriptions in the U.S. for anti-anxiety medications and antidepressants rose 10.2% and 9.2%, respectively, in March compared with March 2019 according to health-research firm IQVIA Holdings Inc. Sales of alcoholic beverages in March were up 55% compared with March 2019 according to marketing research firm The Nielsen Co., and at least one state with legalized marijuana, Washington, reported record sales during the pandemic.

For many employees, the issues are not going to go away when they return to work, affecting employees’ well-being long after the crisis has passed. And it can continue for those who work remotely. A survey by alcohol.org found that one in three Americans are more likely to drink when working from home. The National Safety Council (NSC) is urging employers to implement substance abuse policies and procedures as part of their return to work strategy and offers free resources for employee mental health and wellbeing. Such issues can be a serious threat to worker safety and cost tens of thousands in productivity losses, absenteeism and presenteeism, and workers’ compensation claims if employers do not plan ahead.

Remote workers and cybersecurity

Almost as quickly as the pandemic brought the world to its knees, cybercriminals seized the opportunity to attack the millions working from home. Phishing attempts, the largest source of ransomware, are quickly increasing. According to Net Diligence, the average ransomware cost is $229,000 and the cost of a cyber breach for small businesses (85% of claims) is $673,787 and $8.8 million for large businesses.

In addition, data protection and managed services provider, Digital Guardian, published a report created by aggregating anonymized telemetry from January 1, 2020 through April 15, 2020, via 194 global companies. It found a 122% increase in employees copying company data to USB drives, 74% of that data was classified. Also, a 79% increase in data egress via all means (email, cloud, USB, etc.). More than 50% of observed data egress was classified data.

The Cybersecurity and Infrastructure Security Agency (CISA), a department of US Homeland Security, recently announced key cybersecurity recommendations for employees working from home.

  • Update VPNs, network infrastructure and devices used for remote work – as all devices are variables.
  • Notify employees of increased phishing attacks and offer training/guidance.
  • Ensure IT Security teams are proactively monitoring logs/devices and are prepared for incident response/recovery.
  • Implement Multifactor Authentication (MFA) on all VPN connections and wherever possible.
  • Routinely test VPN network for limitations of mass usage.
  • Do not use Public WIFI, even with a VPN.

A white paper prepared by TechAssure, a not-for-profit trade association for insurance brokers that specialize in technology-related risks, offers additional tips:

  • On all devices that employees are using to access their work environment, Multifactor authentication (MFA) is critically important.
  • Alert employees that fraudulent websites and apps are appearing daily claiming to contain COVID-19 resources, safety supplies, etc.
  • Password management is key. Reusing passwords is common, which increases vulnerability if one account is hacked.
  • Picking up the phone can avert a disaster if something appears suspicious. The client/vendor will appreciate the extra steps to confirm the request.

Cyber insurance policies might provide valuable coverage to mitigate against the possibility of a costly cyber incident during a time when many businesses can afford it the least.

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

Things you should know

Database of EPA-approved disinfectants for COVID-19 pandemic available via app

The Environmental Protection Agency has released its List N Tool, a new web-based application (app) that allows smartphone users and others to quickly identify disinfectant products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.

States without fee schedules pay more

The Workers’ Compensation Research Institute’s (WCRI) medical price index study found states with no workers’ compensation fee schedule pay higher prices for professional services. In states without fee schedules, including Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin, prices paid for professional services were between 42% and 174% higher than the median of study states with fee schedules.

Similarly, outpatient hospital payments are higher and growing at a faster rate in states without fee schedules. Comparing hospital payments from a group of common workers’ comp outpatient surgeries in 36 states from 2005 to 2018, WCRI researchers found that states that paid a percentage of charge versus a fixed-amount fee schedule paid as much as 168% more per surgical episode than the median of study states with flat-rate fee schedules in 2018.

Top 10 private industry occupations with the largest number of injuries and illnesses, 2018

The Insurance Information Institute released its list of the top ten private industry occupations with the largest number of injuries and illnesses. It may surprise you that retail salespeople and registered nurses had more injuries than construction laborers.

FMCSA final rule amends trucker hours-of-service regulations

The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

CMS releases new WCMSA reference guide

The Centers for Medicare and Medicaid Services (CMS) released its latest version of the WCMSA reference guide version 3.1 (May 11, 2020). The link to the CDC life table has been updated to the current CDC life table (2017) CMS has been using as of April 25, 2020, to calculate an injured worker’s life expectancy for Workers’ Compensation Medicare Set-Aside. It should only result in minor differences.

Electrical safety group creates infographic for people working from home

Aiming to promote electrical safety among people who are working from home during the COVID-19 pandemic, the Electrical Safety Foundation International has published an infographic.

“Dirty Dozen” list of 12 most egregious employers focuses on coronavirus response

The National Council for Occupational Safety and Health (National COSH) releases the report each year and this year focused on companies and organizations that allegedly are failing at preventing their employees from exposure to the novel coronavirus.

Updated COBRA Model Notice issued

On May 1, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued revised COBRA model notices (both the general notice and the election notice), along with brief Frequently Asked Questions related to the Consolidated Omnibus Budget Reconciliation Act (COBRA).

State News

California

  • Insurance Commissioner Ricardo Lara issued an order requiring insurers to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other adjustment as soon as possible and no later than Aug. 11, 2020. The order covers insurance lines including workers’ compensation, commercial automobile, commercial liability, commercial multiperil, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the pandemic.
  • The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to expand the hearing schedule.
  • There was an 11.3% drop in workers’ compensation independent medical review letters in 2019 when compared with 2018, according to a report issued by the Workers’ Compensation Institute.

Georgia

Illinois

Massachusetts

  • Attorney General Maura Healey called on the state’s Division of Insurance (DOI) to take immediate steps to ensure that businesses pay fair workers’ compensation insurance premiums that reflect the businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic.

Michigan

  • Pursuant to the Governor’s latest Executive Orders, the Workers’ Disability Compensation Board of Magistrates’ hearing schedule has been updated.

North Carolina

  • Furloughed employees who are paid will not be counted on payroll for premium calculations, the rate bureau announced in a recent circular.
  • Deputy Commissioner Hearings (Non-Medical-Motion Hearings) to Resume in June 2020 via Webex.

Virginia

  • Workers’ Compensation Commission has issued an order to return to in-person hearings on or after June 11, 2020.

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