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

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

HR Tip: Retaliation continues to top EEOC workplace discrimination charges

The U.S. Equal Employment Opportunity Commission (EEOC) received 72,675 charges of workplace discrimination in fiscal year 2019, which ended Sept. 30, 2019. Retaliation continues to be the most frequently filed charge filed with the agency, followed by disability, race and sex. The agency also received 7,514 sexual harassment charges – 10.3 percent of all charges, slightly down from FY 2018. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 39,110 (53.8 percent of all charges filed)
  • Disability: 24,238 (33.4 percent)
  • Race: 23,976 (33.0 percent)
  • Sex: 23,532 (32.4 percent)
  • Age: 15,573 (21.4 percent)
  • National Origin: 7,009 (9.6 percent)
  • Color: 3,415 (4.7 percent)
  • Religion: 2,725 (3.7 percent)
  • Equal Pay Act: 1,117 (1.5 percent)
  • Genetic Information: 209 (0.3 percent)

These percentages add up to more than 100% because some charges allege multiple bases.

For a detailed breakdown by state.

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

Legal Corner

ADA
Lawsuit alleging wrongful termination because perceived-as disabled reinstated

In Paula E. Babb v. Maryville Anesthesiologists P.C., a nurse anesthesiologist contends that Tennessee-based Maryville Anesthesiologists P.C., fired her because it thought she was visually disabled. She acknowledges an eye condition that requires her to hold written records close to her eyes, but argues it does not inhibit her ability to read.

The company, however, says she was fired because of two serious errors that put patients at risk. But an email was circulated to staff saying that she was fired because she “has been having major issues with her eyesight and as of late, it has seemed to be getting even worse.”

The Sixth Circuit finds that the email and other evidence present a triable case of regarded-as disability discrimination under the ADA and reinstates the case.

EEOC disability suit settled for $2.65 million

Crossmark, a company that provides workers to dispense free food samples to shoppers, allegedly failed to provide a reasonable accommodation by not allowing its employees to sit for more than 10 minutes every two hours. The Equal Employment Opportunity Commission (EEOC) noted some employees were permitted to sit as needed when they performed the same job while working directly for the retailers.

The firm agreed to pay $2.65 million and designate ADA coordinators to address accommodation requests, among other provisions.

Workers’ Compensation

Tort claim for lead poisoning barred by exclusive remedy – California

In an unpublished opinion, Deville v. Bloch, the company, Exide, was ordered to suspend operations in Vernon because plant operations were causing the discharge of illegal amounts of lead into the air, water, and soil. Before the plant’s closing, a long-term worker at the hazardous waste treatment and storage plant lost consciousness while cleaning one of the facility’s furnaces. More than three years later he sued, alleging unspecified injuries caused by exposure to lead and other hazardous chemicals.

The appellate court upheld the dismissal of the claim, agreeing workers’ comp exclusive remedy applied. The allegations that Exide knew the employees faced a risk of harm from exposure to lead and other chemicals were not enough to invoke the fraudulent concealment exception to workers’ compensation exclusivity.

Workers over 70 have five-year statutory limit on PTD benefits – Florida

In Crispin v. Orlando Rehabilitation Group, the 1st District Court of Appeals ruled that a worker over the age of 70 is statutorily limited to permanent total disability benefits for a calendar period of five years after she is determined to be permanently and totally disabled. According to the court, eligibility for PTD payments ends five years to the day after the worker is determined to be permanently and totally disabled.

Undocumented worker denied medical care for injury – Florida

In Hernandez v. Food Mkt. Corp., an appellate court upheld the ruling that an undocumented worker who sustained injuries in a work-related accident can be denied benefits on the basis that he used someone else’s Social Security Number (SSN) when completing an intake form at a medical provider. By so doing, the court noted the injured worker had offered a false or misleading statement to secure workers’ compensation benefits.

Pre-existing condition does not negate continuation of medical treatment – Florida

In Premier Community Healthcare Group v. Rivera, a divided appeals court ruled that a dental assistant who was injured while preventing a patient from falling, but had a previous medical condition related to a car accident, must continue to receive benefits. The employer and insurer initially accepted compensability of injuries to the low back and neck, but later denied claims for cervical injections and physical therapy when her medical history revealed that she had a prior motor vehicle accident and previous neck symptoms.

The carrier presented two doctors who testified that the workplace injury is not the major contributing cause of the need for medical treatment of the cervical spine. However, in a divided opinion, the court upheld the JCC’s opinion the worker’s doctor was more persuasive.

JCC may not ignore opinion of expert medical advisor – Florida

In Olvera v. Hernandez Constr. of SW Fla. Inc., although an Expert Medical Advisor (EMA) indicated in his report that a worker had not reached MMI because future surgery was required, a Judge of Compensation Claims (JCC) found that the worker had reached MMI. An appellate court found that the JCC’s decision, which was made based on the EMA’s answer to one leading hypothetical question on cross-examination, was in error because the JCC cannot disregard the presumed correctness of an unequivocal EMA.

Civil suit can proceed in workplace parking lot shooting – Georgia

In Smith v. Camarena, the estate of a worker who was killed in a grocery store parking lot after finishing her shift filed a civil suit against her employer. The woman and a co-worker were approached by a masked gunman who demanded their purses. An assistant manager was driving by and called to the gunman and shots were exchanged and the woman was killed. While a trial court denied the suit based on the exclusive remedy of workers comp, the Court of Appeals said it could proceed.

Although it is undisputed that she had left work, the employer argued she was “within the period of her employment under the ingress/egress rule.” Noting the parking lot was owned by the store’s landlord and served several other stores, the appellate courts said there is a question of whether the location was part of the employer’s premises and a jury should decide if the shooting occurred in the course of employment.

TTD denied for failure to follow work restrictions – Georgia

In Burch v. STF Foods Inc., the Court of Appeals ruled that a restaurant worker, who had injured his back and had received written restrictions from the restaurant’s owner, was not entitled to temporary total disability benefits after being fired for failing to abide by the lifting restrictions. Despite the instructions, he continued to lift heavy items, received warnings, and suffered additional injuries to the back/shoulder area.

When he was fired for insubordination, he filed for workers comp and an administrative law judge (ALJ) found in his favor, finding his restrictions were related to his work injury. Upon appeal, the court found the ALJ had erred and that the worker failed to prove any loss of earning capacity was attributable to his compensable work injuries, but rather was due to subordination.

Case to watch: McDonalds’ employees in Chicago sue over workplace violence – Illinois

Seventeen Chicago-area workers filed suit in the Circuit Court of Cook County claiming that the “Experience of the Future” store renovations makes it easier for angry customers to leap over the counter and attack them. The suit claims that in the Chicago area, there are more than 20 calls every day to emergency services from McDonald’s stores and that the company ignores practices that could make the stores safer.

Drainage contractor found guilty of manslaughter in workers’ deaths – Massachusetts

Atlantic Drain Services of Blackstone had been cited by OSHA in 2007, 2012 and again in 2017 after two workers drowned when a trench collapsed. The company was fined $1.47 million in 2017. Three years later, Atlantic Drain owner Kevin Otto and his company were separately found guilty of two counts of manslaughter and one count of witness intimidation in Superior Court.

In addition to failing to use cave-in protection and placing employees in severe danger, it was alleged that the company attempted to mislead the investigation by falsifying documents, including sign-in sheets for excavation and trenching training, as well as workers’ signed acknowledgment of receiving personal safety equipment.

The owner faces up to 20 years in prison and fines up to $250,000.

City agrees to pay workers comp, a wrongful termination claim, and hold open the possibility of a future asbestos-related claim – Michigan

The East Lansing City Council has agreed to pay a former wastewater treatment plant employee $125,000 to settle a workers’ compensation claim and a wrongful termination lawsuit. He alleged he was fired because he reported health and safety violations to state agencies and because he filed a workers’ compensation claim. He also claimed respiratory damage from asbestos and a mercury spill at the facility and the city agreed he could file a claim in the future if he is diagnosed with an asbestos-related illness.

No causal connection between tinnitus and work-related fight – Missouri

In Schlereth v. Aramark Uniform Servs., a state appellate court panel affirmed a Commission decision concluding that a supervisor’s tinnitus was not caused by a work-related brawl that resulted from the supervisor’s crude characterization of a subordinate’s work. Although he did sustain obvious injuries to the face and head, he did not seek benefits until three years later after he received social security benefits.

In spite of surgery complications, worker fails to prove medical causation of sinus cavity clot – Nebraska

In Homstad v. Block 21, LLC, a worker underwent knee surgery for a work-related injury and suffered a deep venous thrombosis (DVT) in his thigh, as well as a pulmonary embolism. Later, he contended that a blood clot in his sinus cavity was causally connected to the earlier injury and surgery. The medical experts were cautious, neither confirming or denying, the causation. Thus, an appellate court upheld the Workers’ Compensation Court decision that the worker had not met the burden of proof.

Workplace fire did not conclusively cause lung disease – Nebraska

In Pennington v. SpartanNash Co., a three-judge panel of the Court of Appeals affirmed a Workers Compensation Court decision that a worker with lung disease failed to show that his illness was brought on by a workplace fire. He worked as a store manager for Michigan-based food distributor SpartanNash and put out a small fire in an unused walk-in freezer. Although he did not seek medical treatment at the time, a few days later he fainted and was referred to a pulmonologist, who diagnosed pneumonitis and ordered him to stop working. His treating physician wrote a letter stating that his pneumonitis and symptoms were “more likely than not” a result of the chemical and smoke exposure, and a second physician opined that his exposure on the day of the fire more likely than not resulted in his lung disease. The company’s medical expert said the cause could not be determined with certainty.

The court found that his medical experts failed to provide sufficient support for their opinions.

Construction company operator, foreperson, and engineer indicted for manslaughter in death of laborer following wall collapse – New York

Owners and managers of WSC Group LLC, a Sunset Park construction company, have been indicted on manslaughter, negligent homicide and workers’ compensation insurance fraud some 14 months after a wall collapsed and killed a welder at an excavation site in Brooklyn.

Worker employee, not independent contractor – North Carolina

In Macias v. BSI Associates Inc., a worker was injured while working for the Carolina Chimney Crew, settled the claim, and agreed not to work for the company in the future. The following year, the owner suggested the former employee start his own company, purchase the necessary insurance, and work as an independent contractor for him. His insurance indicated zero employees and he excluded himself from coverage.

The company furnished vehicles, tools, equipment and supplies, business cards, Carolina Chimney Crew clothing, and provided specific instructions on where he was to work and what work he was to perform each day. He resumed his work in almost identical fashion as when he was an employee and a few years later fell from a scaffold and fractured his spine.

While the claim for workers’ comp was denied by the company’s insurer based on his status as an independent contractor, a three-judge panel of the Court of Appeals unanimously affirmed an Industrial Commission decision holding that the injured man was an employee, not an independent contractor, and, therefore, entitled to workers compensation.

Definition of employer’s premises clarified in parking lot decision – Pennsylvania

In US Airways v. Workers Compensation Appeal Board, a 6 – 0 decision of the Supreme Court’s Western District in Pittsburgh affirmed a workers compensation judge’s finding that a flight attendant was in the course and scope of her work when she was injured. The flight attendant was injured after her shift ended while riding an airport shuttle bus to an employee parking lot. The City of Philadelphia, and not the airline, owned both the shuttle bus and the employee parking lot.

With the decision, the Court stood by its earlier Epler holding that the phrase “the employer’s premises” should be construed liberally to include any area that is integral to the employer’s business operations, including any reasonable means of ingress to or egress from the workplace.

Employee of staffing agency cannot sue borrowing employer – Pennsylvania

In Burrell v. Streamlight, an employee of a staffing agency fell while assigned to Streamlight, received comp benefits from the staffing agency, and filed a negligence suit against Streamlight. Streamlight argued it was acting as his employer at the time and, therefore, was immune from civil liability.

The appellate court stressed that the issue turned upon whether the borrowing employer had the right to control not only the work to be done by the borrowed employee but the manner of performing it. It found the evidence established that Streamlight was his employer.

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

HR Tip: Supreme Court ruling alerts employers to quickly compare EEOC complaints and lawsuits

In Fort Bend County v. Lois M. Davis published on June 3, the US Supreme Court ruled that Title VII’s charge-filing requirement is a processing rule, not a jurisdictional prescription, and an objection to it may be forfeited “if the party asserting the rule waited too long to raise the point.” This ruling revolves around the fact that employees filing suit under Title VII of the Civil Rights Act of 1964 must first file a complaint with the EEOC.

It means that employers must immediately check if charges in litigation filed under Title VII jive with those in the previously filed EEOC complaint. If the charges do not match, and employers act immediately, then they can get that claim dismissed, but delaying the action, which occurred in this case, means that chance is forfeited. The question of how long an employer can wait before raising an objection or defense without risking forfeiture was not decided by the Supreme Court and will be litigated and developed in the lower courts going forward.

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

HR Tip: Retaliation tops list of EEOC charges for 8th consecutive year

A total of 39,469 retaliation charges were filed with EEOC in fiscal year 2018, which ended on Sept. 28, which accounted for 51.6% of the total charges filed. Retaliation means an adverse employment action was taken against the employee because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding.

Following retaliation, sex was the second-most frequent charge filed with the agency in fiscal year 2018, at 24,655, or 32.3% of the total. This was a change from fiscal year 2017, when race was the second-most frequent charge.

Other charges were: disability, 24,605, or 32.2% of the total; race, 24,600, or 32.2% of the total; age, 16,911, or 22.1% of the total; national origin, 7,106, or 9.3% of the total; color, 3,166, or 4.1% of the total; religion, 2,859, or 3.7% of the total; Equal Pay Act, 1,066, or 1.4% of the total; and genetic information, 220 or 0.3% of the total.

The reason for the preponderance of retaliation claims is that they are easier to prove than discrimination claims. It’s difficult to defend when there was adverse action against an employee only days or weeks after filing an EEO charge.

Although retaliation cases for workers’ comp claims are not handled by the EEOC, but by state courts, the challenges of defending them are similar. Similarly, retaliation cases for reporting OSHA violations are heard by federal courts. Two recent cases were decided in favor of employees.

An employee of Lloyd Industries in Pennsylvania was operating a press brake that did not have machine guarding and three of his fingers were crushed and had to be amputated. Another employee took photos to assist the injured employee with his comp claim. After the incident, the injured employee was fired and he filed a complaint with OSHA.

Following the OSHA inspection, the owner stated that there was a “rat” in the facility and fired the employee who had taken the photo five days after the inspection. The inspection resulted in total fines of $822,000, which led the owner to terminate the plant manager for cooperating with the OSHA inspection. The jury found the timing of these terminations was no coincidence and the court will determine damages in the trial’s second phase.

In another case, a Pennsylvania jury awarded $40,000 for lost wages, pain and suffering and punitive damages to a former employee of Hamburg-based Fairmount Foundry Inc. who claimed he was terminated for reporting alleged safety and health hazards.

According to some attorneys, juries seem more inclined to believe that someone would retaliate than discriminate based on race, sex or other protected minority-status factors. Also, the larger verdicts seem to come from the fact that retaliation is viewed as a manager’s reaction (to get even) to the worker’s filing a complaint or for benefits.

To either avoid retaliation charges or successfully defend them, experts advise caution in taking any negative job action against a worker shortly after a case has been filed. However, employers can successfully defend against these claims by producing evidence of a legitimate, non-discriminatory basis for the adverse action, but there needs to be clear, thorough, written documentation of all the facts.

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

Things you should know

EEOC issues FY 2018 Performance Report

In its performance report, the U.S. Equal Employment Opportunity Commission (EEOC) reported significant increases in its outreach efforts and enforcement actions to prevent and remedy employment discrimination. The EEOC secured approximately $505 million and other relief for over 67,860 victims of discrimination in the workplace. The EEOC’s legal staff resolved 141 merit lawsuits, filed 199 more in FY 2018, and filed 29 amicus curiae briefs on significant legal issues in employment discrimination cases.

Non-fatal injuries and illnesses decline – BLS report

The Bureau of Labor Statistics (BLS) report on workplace injuries and illnesses showed a slight decline from 2016 to 2017. There were 2.8 million nonfatal workplace injuries and illnesses reported by private industry employers in 2017, a rate of 2.8 cases per 100 full-time equivalent workers, compared with 2.9 cases in 2016. In manufacturing, sprains, strains and tears were the leading type of injury with a rate of 27.5 cases per 10,000 FTE workers which was unchanged from 2016. For more details

Recreational and medicinal marijuana – midterm results

  • Michigan became the 10th state to legalize the possession and use of recreational marijuana for adults.
  • Missouri and Utah approved the use of marijuana for medicinal purposes.
  • North Dakota rejected a measure to legalize recreational marijuana.

Crashes up in states with legalized marijuana

Crashes have increased by up to 6% in four states that have legalized marijuana for recreational use compared with neighboring states that have not done so, said the Insurance Institute for Highway Safety and the Highway Loss Data Institutes. Data from Colorado, Nevada, Oregon and Washington, which have legalized marijuana, was compared with the control states of Idaho, Montana, Utah and Wyoming. The combined state analysis is based on collision loss data from January 2012 through October 2017.

Bad commutes have driven more than 20 percent of office workers to quit a job, survey shows

Nearly one in five U.S. office workers say they’ve quit a job because their commute was too much, according to the results of a recent survey conducted by global staffing firm Robert Half.

In a survey of more than 2,800 office workers from 28 cities, 23 percent cited a bad commute as a reason for quitting a job. The cities with the most workers resigning for commute-related reasons were Chicago, Miami, New York and San Francisco.

Managing fatigue risk in the tugboat, towboat and barge industry: New guide available

The American Waterways Operators has released a guide on various principles of fatigue risk management.

State News

California

  • Workers’ Compensation Insurance Rating Bureau (WCIRB) released their Workers’ Compensation Aggregate Medical Payment Trends report, which compares medical payment information from 2015 to 2017. There was a cumulative 8% reduction in medical payments per claim from 2015 to 2017. More information
  • Average losses on newer indemnity claims are starting to tick up even as costs for older claims continue to level out or decline, the Workers’ Compensation Institute (CWCI) reports.

Florida

  • The Insurance Commissioner has issued a final order for a 13.8% workers’ compensation rate decrease for 2019, which applies to both new and renewing workers comp policies effective in the state as of Jan. 1. The reduction is slightly larger than that submitted by NCCI (13.4%).

Illinois

  • Legislature overturned the Governor’s veto of the workers’ compensation law to allow medical providers to sue insurers over interest stemming from unpaid bills, among other changes to the way medical claims are managed between doctors and payers. Attached to the new law is an amendment that specifies the medical treatment must be approved under workers’ compensation – and oftentimes by the commission – before interest can be accrued and then collected via the circuit court.

Massachusetts

  • Falls to a lower level were the leading cause of fatal worker injuries from 2014 to 2015, representing nearly 17 percent of the workplace fatalities, according to a report released Oct. 16 by the Department of Public Health.

Minnesota

  • The workplace injury rate fell to the lowest level ever recorded in 2017, to 3.3 nonfatal injuries per 100 full-time workers, reports the Department of Labor & Industry.

North Carolina

  • The nonfatal workplace injury and illness rates reached an all-time low in 2017, according to a new report from the state Department of Labor.

Tennessee

  • The Department of Commerce and Insurance Commissioner approved a 19% reduction in workers’ compensation rates, consistent with NCCI’s recommendation. The reduction will become effective on March 1.

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

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

OSHA

Rule and policy status

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

Enforcement stats

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

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

 

Equal Employment Opportunity Commission

Rule and policy status

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

Enforcement stats

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

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

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

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

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

Things you should know

NCCI published a large set of changes to the Basic Manual

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

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

EEOC provides timeline for revising wellness regulations

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

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

Adult obesity rate climbs to 40 percent

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

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

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

California

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

Indiana

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

Michigan

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

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

EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.


Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.


National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.


CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.


New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.


Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.


Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.


FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.


Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.


Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News

California

  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.

Florida

  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.

Illinois

  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.

Minnesota

  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.

Pennsylvania

  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.

 

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