Legal Corner

FMLA
Company properly terminated teller using intermittent FMLA leave

In Walker v. J.P. Morgan Chase Bank N.A., the U.S. District Court for the Northern District of Illinois ruled that a bank teller who received intermittent leave for hypertension and requested removal of the notary duties of her job did not show Family and Medical Leave Act (FMLA) retaliation or interference in her firing. On her intermittent leave, she was permitted to come in late, leave early, or miss a day when she was not feeling well and acknowledged that she was never denied FMLA leave approval. She did not request an ADA accommodation.

While she was working she received low or unsatisfactory job performance reviews, warnings for overall unsatisfactory performance, including poor customer relationships and failure to follow procedures to protect confidentiality. She was fired approximately two years after she requested intermittent leave and filed suit.

The court found that she was terminated because of her performance failings, not because she took intermittent leave. The company had properly continued to enforce its progressive disciplinary policy during the period of intermittent leave.


Medical Marijuana
Medical marijuana user can sue employer that rescinded job offer based on pre-employment drug test – Connecticut

In Katelin Noffsinger v. SSC Niantic Operating Company L.L.C., doing business as Bride Brook Nursing and Rehabilitation Center, a recreational therapist who suffers from post-traumatic stress disorder was prescribed a capsule form of medicinal cannabis in 2015, which she ingests every evening to help her sleep. Prior to her pre-employment drug test, she informed her future employer that she took medical marijuana. One day before she was to start her new job, after she had quit her former employment, the rehabilitation center rescinded her job offer over a positive drug test.

The company argued that federal law, which bans the use of marijuana, preempts Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The court disagreed and found the employee can sue the employer.


Workers’ Compensation
Exclusive remedy protects general and special employer – California

The family of a Fresno paramedic who was killed in an air ambulance helicopter crash filed a wrongful death suit against Rogers Helicopters and American Airborne, claiming they were negligent in the maintenance and operation of the helicopter. A general partnership, ROAM dba SkyLife, existed between the companies, and the helicopters used in this partnership were jointly owned.

If there are dual employers, the second or “special” employer may enjoy the same protection of “exclusive remedy” under workers’ comp as the first or “general” employer. The court found the death occurred during the course and scope of employment, therefore, the family is precluded from suing the companies.


Work comp exclusivity rule does not preempt claim for emotional distress under FEHA – California

In conflict with an earlier decision from Division Three, the Court of Appeal, 4th District, has affirmed that the workers’ compensation exclusivity rule does not preempt employees’ emotional distress claims arising from discrimination or retaliation in violation of the Fair Employment and Housing Act (FEHA). The case, Melony Light vs. California Department of Parks and Recreation, et al., revolved around a co-worker who alleged harassment by supervisors for support of a co-worker who took medical leave for stress arising from harassment by supervisors. The court noted that exclusive remedy provisions are not applicable under various circumstances, including from a risk not reasonably encompassed within the compensation bargain.


Employer may be liable for costs up until denial of claim – Florida

In Mathis v. Broward County School Board, a custodian, who is diabetic and had an abscess on her foot, reported a puncture injury to her foot. When the abscess worsened, she went to the hospital and was operated on for a staph infection.

When the school board denied the claim, the employee appealed, not questioning the denial of compensability but arguing the board was obligated to pay the $116,000 bill from the hospital, which was incurred before the claim was denied. The 1st District Court of Appeal overturned a judge’s finding that the employer wasn’t liable, noting if an employer elects to pay and investigate, then the law requires that it pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. The case was remanded to consider the board’s defenses and if this constituted emergency care.


Comp sole remedy for alleged victim of sexual harassment – Illinois

In Nischan v. Stratosphere Quality, the U.S. 7th Circuit Court of Appeals ruled that workers’ compensation was the sole remedy for a worker’s claim of battery by a corporate representative of a client, but that she had asserted a viable claim against her employer for failing to protect her from the corporate representative’s allegedly harassing conduct.

The Chrysler Group was one of Stratosphere’s biggest clients, and she alleged that Chrysler’s liaison sexually harassed her. The court said the Workers’ Compensation Act barred the claim of battery, since the act is the exclusive remedy for accidental injuries transpiring in the workplace. “Injuries resulting from a coworker’s intentional tort are accidental from the employer’s perspective unless the employer commanded or expressly authorized the tort.”


Use of indefinite article in settlement agreement leads to award of benefits – Indiana

In Evansville Courier Company v. Mary Beth Uziekalla, an injured worker settled a workers’ compensation claim for a neck injury. The settlement agreement allowed a claim for change of condition, at which point she could seek a medical opinion from the independent medical examiner.

When she exercised the provision, the designated doctor declined to give a medical opinion, so the parties agreed on a neurosurgeon, who determined that the change in condition did not result from her work injury. However, the original neurosurgeon, who also examined her, came to the opposite conclusion. The appellate court rejected the argument that the board erred in admitting the second opinion since the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure. Indeed, the use of the indefinite article contemplates the contrary.


Longshoreman can pursue both WC and LHWCA benefits – Minnesota

Unless states have laws on the books indicating otherwise, injured longshoremen may seek benefits under both workers’ comp and the federal Longshore and Harbor Workers’ Compensation Act. In Ansello v. Wisconsin Central Ltd., the state Supreme Court ruled that a workers’ compensation judge abused his discretion when he dismissed the case for lack of jurisdiction.

In a dual-jurisdiction case, benefits in both jurisdictions can be pursued, but can’t be collected at the same time. The Longshore Act is more generous than the state’s workers’ compensation and typically would be accessed for wage loss and any residual benefits not paid under the state’s system. The court noted there is no danger of double recovery under concurrent jurisdiction, since employer’s awards under one are credited against any recovery under the second.


Failure to administer drug and alcohol testing in timely manner to injured worker nixes denial of benefits – Mississippi

In McCall v. Sanderson Farms, an appellate court held that an injured worker should not have been denied workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The injured worker waited for the breathalyzer technician to arrive at the employer’s premises for more than an hour and one-half following the incident, but pain forced him to leave and seek care at the hospital, where he passed a drug test but was not administered a blood alcohol test. According to the court, the employee had not denied the test.


Drug sentence insufficient to prove worker earned money from dealing drugs – New York

Under Work Comp. Law § 114-a, if a person makes a false statement or representation as to a material fact he or she shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In Pompeo v. Auction Direct USA LP, an injured worker who went to prison on drug-dealing charges would have lost his chance to resume collecting wage-replacement benefits after his release if his employer could prove he hid the drug-sale proceeds. However, the Board was within its powers to find that the criminal convictions alone were insufficient to establish that income had been received from the drug sales.


Widow gets death benefits for unwitnessed fall – New York

In Silvestri v. New York City Transit Authority, an appellate court ruled that a worker’s widow was entitled to benefits for his death from injuries caused by an unwitnessed fall at work that was never reported to his employer. He left prior to the start of the second overtime shift and witnesses said he was holding his stomach when he left, and that he had said he wasn’t feeling well.

His maintenance duties sometimes required him to repair subway cars while they were suspended over a pit that was 4 to 5 feet deep with a concrete floor, through the use of a ladder and he told his wife he had fallen off a ladder into “the pit” at work earlier that day. When he was having difficulty breathing and walking, he went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he was diagnosed with a ruptured spleen, as well as a punctured lung, and died in the hospital a day later.

While the presumption of compensability could not be used to establish that an accident actually occurred, the widow had established her claim without it.


Calculation of AWW must account for changes in wages, hours – North Carolina

In Ball v. Bayada Home Health Care, the Court of Appeals overturned the calculation of a worker’s average weekly wage that did not account for the fact that she switched from part-time to full-time employment, and that she worked more than three months after her injury at a higher rate of pay. After six months of part-time work, a nurse’s assistant took a full time position and was pushed down the stairs by a patient on her first day.

The statute sets forth five different methods for calculating a worker’s AWW and the Industrial Commission used the method for when less than 52 weeks is worked. This method sets the AWW as the sum of the worker’s earnings divided by the number of weeks actually worked, if this results in an amount that is “fair and just to both parties.” The court found that this method was unfair to the worker and set the AWW as the amount that “will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”


Entire impairment rating evaluation process unconstitutional – Pennsylvania

The recent decision of the state’s Supreme Court in Protz v. Workers’ Comp. Appeal is having widespread implications for the workers’ compensation process. In Thompson v. Workers’ Comp. Appeal Bd, the Commonwealth Court held that one legal effect was to undermine the legal authority for the entire impairment rating evaluation (IRE) process. Accordingly, the Board could not approve a modification of benefits based upon an IRE.


Loss of earning power appropriate standard in reinstatement of benefits case – Pennsylvania

In Schafer v. WCAB (Reese Masonry), the Commonwealth Court overturned lower rulings by reviving a worker’s petition for reinstatement of benefits. It explained the wrong standard was used; the worker did not need to prove a worsening of his condition or inability to perform his regular job to be entitled to wage-loss compensation; he just had to show that his earning power was adversely affected by his disability and that it arose from his original claim.


Worker awarded benefits for fall that aggravated pre-existing arthritic condition – Tennessee

In Jenny Craig Operations v. Reel, a worker tripped and fell, aggravating the pre-existing arthritis in her knee and necessitating knee replacement surgery. The company accepted liability for a temporary injury to the knee, but it denied liability for the total knee replacement and for any permanent impairment. A trial judge found the fall had caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement and a permanent partial disability of 46.5% to her right lower extremity.

The state’s Supreme Court Special Workers’ Compensation Appeals Panel agreed, noting, “an employer takes an employee as is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect an otherwise healthy person.”

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

Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.


Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

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

Things you should know

Employer control over medical providers can lower costs for spinal injuries

A study by the Workers Compensation Research Institute (WCRI) found the greatest disparity in medical and indemnity costs between states that allow injured workers to choose their own providers and those that give employers more control is for spinal injuries. Researchers noted that there is more subjectivity in the nature of care for back and neck injuries, whether employees can go back to work, and the level of pain.
ISEA updates fall protection guide

In response to new regulations and standards, the International Safety Equipment Association (ISEA) has updated its Personal Fall Protection Equipment Use and Selection Guide. The 30-page document explains how to set up a fall protection program, details the major parts of fall protection systems, and advises on the selection of equipment based on industry. It also includes relevant OSHA regulations and U.S. and Canadian consensus standards.
New chronic pain guideline emphasizes physical activity

An “overwhelming theme” in treating patients for chronic pain is to keep them as physically active as possible, according to an American College of Occupational and Environmental Medicine treatment guideline recently released, which has not been released to the public. The therapy needs to move beyond simply stretching to strengthening, aerobic conditioning, and functional improvement and one key is to not prescribe activity “as tolerated” or “as needed.”
Study of severe injury data finds poultry and meat workers at high risk

Every day, 27 workers suffer on-the-job amputations or injuries that require hospitalization, according to a recent report from the National Employment Law Project. According to the data, employers reported 17,533 severe injuries between Jan. 2015 and Sept 2016.

Out of more than 14,000 companies reporting to the government, Tyson Foods ranked fourth, and JBS/Pilgrim’s Pride ranked sixth, in terms of the number of severe injury reports filed. Further, the poultry industry as a whole has the 12th highest number of severe injuries of all industries reporting-higher than the sawmill industry, auto, steel, and other high-hazard industries.
Large variation in worker attorney involvement by state: study

WCRI released a new FlashReport to help inform policymakers and stakeholders about worker attorney involvement in their state. According to the study, the percentage of claims with worker attorneys ranged from 13-14 percent in Wisconsin and Texas to 49-52 percent in New Jersey and Illinois. States included in this study are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.
Mine safety rule implementation delayed until Oct. 2

The U.S. Mine Safety and Health Administration (MSHA) has extended the effective date for its rule on workplace safety examinations for metal and nonmetal mines to Oct. 2. The rule addresses the timing of workplace safety examinations and strengthens notification requirements.
MSHA launches lone miner safety initiative

MSHA announced it will begin focusing inspections and mine visits on lone miner situations after five of eight miner fatalities this year have involved miners working alone.
State updates

California

  • Insurance Commissioner Dave Jones has issued a revised advisory pure premium rate, reducing rates by 16.5% to $2.02 per $100 of payroll effective July 1.
  • Occupational Safety and Health Standards Board approved a new regulation that serves to strengthen process safety management around the state’s oil refineries.
  • The start date for the planned drug formulary will be delayed by six months to January 1, 2018 to revise parts of the plan and receive public comments.

Florida

  • 14.5% increase in comp premiums upheld by appeals court.

Illinois

  • The average indemnity benefit per claim in Illinois was $21,275 in 2013, while the median state benefit per claim was $18,269 according to a WCRI study.
  • The Senate passed two pieces of workers compensation reform legislation that would reduce the cost of workers compensation insurance for employers and introduce market competition. The bills will be sent to the governor for signature.

Mississippi

  • The Workers’ Compensation Commission has adopted an amendment to its 2017 fee schedule, adding opioid guidelines.

 

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

OSHA watch

Legislative updates (see first article for details)

  • Electronic record-keeping rule delayed, but anti-retaliation provisions remain
  • Walkaround rule rescinded
  • Enforcement of silica standard for construction delayed until Sept. 23

No major budget changes for FY 2018, but shifting priorities

The proposed FY 2018 budget includes $543 million with $130 million for “federal and state compliance assistance activities to enhance employer outreach and training.” The budget for fiscal year 2017, which ends Sept. 30, was $552.8 million. While adding money to compliance assistance, the proposed budget slashes funding for the standards and statistics programs. Enforcement remains intact and there are no new riders that would prohibit the agency from enforcing any standards or other parts of the law.

Meanwhile, the Mine Safety and Health Administration would see relatively small changes in funding for fiscal year 2018, but NIOSH might experience a sizable reduction in its budget, and the Chemical Safety Board still is scheduled for elimination.

New videos and infographics provide facts on falls

Falls are the leading cause of death for construction workers, accounting for 367 of the 985 construction fatalities recorded in 2015. Two videos have been posted on the Stand-Down homepage and a series of infographics can be downloaded.

Enforcement notes

Illinois

Demolition company faces $152,000 in fines following death of worker

Omega Demolition Corp. was working on the demolition of an I-90 bridge when a falling beam injured several workers and killed one. An investigation found that the company overstressed the beam, resulting in the beam’s failure and $152,000 in fines was levied. A commission has been set up to review the findings and determine whether the fines and citations will stand and what additional measures the Illinois Tollway will take.

Massachusetts, Maine

Railroad company violated whistleblower’s right and ordered to pay $260,000

A federal appeals court has affirmed that Pan Am Railways, Inc. must pay $260,000 in punitive and compensatory damages and take corrective action on behalf of an employee who was subjected to retaliation for filing a Federal Railroad Safety Act whistleblower complaint. The court found the North Billerica-based commercial railroad retaliated against the employee, who works in a rail yard in Waterville, Maine, when it charged him with dishonesty in connection with his FRSA complaint. The employee had tried to report an injury.

Michigan

Landscaping company hit with $222,000 in safety fines, stop-work order

Failure to abate safety hazards, including not using traffic control devices when employees were working near the road, not training workers on tree-trimming operations and safeguards, and not using a chipping machine in a safe manner led to a cease-operation order against Sunset Tree Service & Landscaping LLC. The company has a history of violations.

Auto insulation manufacturer faces fines of $569,463

An Ohio-based employee of Michigan, Farmington Hills-based Autoneum North America suffered an amputation of his right hand, wrist and part of his forearm when his arm got caught in a shredding machine at the auto insulation manufacturer plant in Oregon, Ohio. The company faces $569,463 in proposed penalties for failure to equip the machine with adequate safety guards.

Ohio

Automotive steel manufacturer faces $279,578 in penalties

Canton-based Republic Steel, an automotive steel manufacturer, is facing $279,578 in proposed penalties after investigators found workers at its plant exposed to machine hazards and lead.

South Dakota

Sioux Falls-based Hultgren Construction L.L.C. faces two willful citations and a proposed penalty of $101,400 for failing to properly train and instruct employees, for exposing employees to struck-by and crushing hazards, and not performing an engineering survey prior to beginning demolition. The company was renovating a historic building in downtown Sioux Falls when the building collapsed, killing one of its employees.

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

Four troubling trends threaten worker safety

Despite the remarkable strides that employers have made in reducing workplace injuries, there are several persistent issues that threaten worker safety. Here are four of them:

  1. Disconnect between employer and employee perception of value of productivity over workplace safetyIn a recent survey, Employee Perceptions in Workplace Safety, by the National Safety Council (NSC), over one-third of the employees surveyed claimed that workplace safety is secondary to performing tasks. This perception was even much higher in certain industries: 68% in agriculture, forestry, fishing and hunting; 58% in construction; and 45% in manufacturing or industrial facilities.

    The report also found that 32% of respondents agreed that employees “are afraid to report safety issues,” and 30% agreed “employees are resistant to working safely.” Of those surveyed, 39% agreed that management does only the “minimum required by law” when it comes to employee safety. 32% feel management ignores an employee’s safety performance when determining promotions.

    On the other hand, 71% stated that safety training is part of orientation, and 68% of those surveyed agreed that employees are well trained in emergency practices. 62% say everyone is involved in solving job safety issues. 63% of employees feel they work in areas or at stations that are ergonomically correct.

    Takeaway: Even in companies that have a safety strategy aligned with their organizational goals, there can be a safety-vs.-production dichotomy. This can come from unrealistic deadlines, poor supervision, inadequate communication, lack of accountability, workers’ perception that personal productivity solely drives raises, or a high tolerance for risk among some employees. Find out how your employees view safety and productivity. Are there conflicts, if so, what are they and how do they resolve them? Many successful companies have demonstrated that high value on safety and productivity can co-exist and help achieve long-term profitability.

  2. Motor vehicle crashes are leading cause of workplace fatalities and roadways are getting more dangerousIt’s not falls, fires, explosions, or chemical exposure that kills workers the most on the job; it’s motor vehicle crashes. According to the Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary, 2015 (latest data available), roadway incident fatalities were up 9 percent from 2014 totals, accounting for over one-quarter of the fatal occupational injuries in 2015.

    Drivers are often lulled into a false sense of security with hands-free and in-vehicle technology. An NSC survey found that 47% of motorists are comfortable texting while driving. There’s also a false sense that summer is a safer time to drive with better weather and road conditions. However more auto accidents occur during the summer time than any other time of the year.

    According to the NSC, the increased serious injuries and fatalities from motor vehicle crashes continue a troubling multiyear surge that experts believe is being fueled, in part, by more people driving while distracted by cellphones, infotainment screens, and other devices. Other factors include an improving economy, lower gas prices, and younger, more inexperienced drivers.

    And then there are the challenges that face the trucking industry. Heavy and tractor-trailer truck drivers incurred 745 fatal work injuries in 2015, the most of any occupation.Truck drivers also had more nonfatal injuries than workers in any other occupation. Half of the nonfatal injuries were serious sprains and strains; this may be attributed to the fact that many truck drivers must unload the goods they transport. A driver shortage, a rapidly aging driver population, as well as issues with driver fatigue, obesity, and other co-morbidities challenge the industry. And in many delivery zones, there has been an increase in pedestrian strikes, not caused by drivers but by distracted pedestrians.

    Takeaway: Any company utilizing vehicles for business purposes – even if those vehicles are employees’ personal cars – can feel the impact of rising accidents. The average work-related motor vehicle injury claim costs $72,540, which is twice as much as other work-related injuries. Those who have not instituted policies to minimize distracted driving need to do so. Random checks on compliance with the policy and discipline for non-compliance are key. Employers can also strengthen hiring practices and use fleet telematics, when appropriate.

    These policies should be regularly communicated to help reinforce the message. There are good public awareness campaigns, including an informative website, distraction.gov, in which employers can download forms to use in obtaining a pledge to not engage in distracting activities while driving. Recently, the NSC created a webinar offering recommendations not only on eliminating distractions in vehicles, but also on how to be alert and react to the actions of other distracted drivers on the road.

  3. Fatalities in construction outpace employment growthThe number of fatalities among construction workers climbed to 985 in 2015 after dipping to 781 in 2011, an increase of 26% compared to employment growth of 16%. Fall-related fatalities increased at a faster pace – rising 36% to 367 in 2015, according to the report by the Center for Construction Research and Training (CPWR).

    Data presented in the report comes from the Bureau of Labor Statistics. Other findings:

    • 55 percent of fatal falls came from heights of 20 feet or less.
    • 33 percent of fatal falls involved falls from roofs, 24 percent involved ladders, and scaffolds and staging accounted for 15 percent.
    • Fatal falls in residential construction rose to 61 in 2015 from 26 in 2011.
    • Roofers continue to experience the highest rate of fatal falls to a lower level: 31.5 per 100,000 full-time workers, although this represents a decrease from 39.9 in 2014.
    • Workers at an increased risk of fatal falls include Hispanic workers, foreign-born workers, and workers 55 years and older.

    Takeaway: The findings in this report emphasize the need to reduce falls and the importance of ongoing vigilance. CPWR, OSHA and NIOSH have a variety of resources available and the Campaign to Prevent falls in construction website includes Eleven Ways to keep your fall prevention program alive all year long.

  4. Impaired workforce: drug use at 12-year highCocaine, marijuana and methamphetamine use continues to climb among workers, though opioid use is down, according to a May 2017 study by New Jersey-based Quest Diagnostics Inc. Cocaine positivity increased 12 percent in 2016, reaching a seven-year high of 0.28 percent, compared to 0.25 percent in 2015, and seven percent among federally-mandated, safety-sensitive workers to 0.28 percent, compared to 0.26 percent in 2015. Marijuana positivity increased dramatically over the last three years with increases in Colorado and Washington double the national average. In oral fluid testing, which detects recent drug use, marijuana positivity increased nearly 75 percent, from 5.1 percent in 2013 to 8.9 percent in 2016.

    Amphetamines (which includes amphetamine and methamphetamine) positivity continued its year-over-year upward trend, increasing more than eight percent in urine testing compared to 2015. Throughout the last decade, this rise has been driven primarily by amphetamine use, which includes certain prescription drugs such as Adderall.

    On a positive note, heroin detection remained flat, while prescription opiate detection declined.

    Takeaway: The efforts to control opiate prescribing in workers’ comp have produced promising results. However, the answer to the problem of drugs in the workplace remains elusive. The regulations governing drug testing are more restrictive, there is no established standard of what constitutes impairment when it comes to marijuana, alternatives to chronic pain treatment are still emerging, and employees often do not understand the perils of some prescription medications. In addition to a carefully crafted drug-free workplace policy, training supervisory staff to identify and know what to do if they suspect an employee has a problem and educating employees on their role in keeping the workplace safe are key.

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

 

Lessons from a small company recognized as one of America’s safest companies

EHS Today, a magazine dedicated to the management of risk in the workplace and environment, has recognized America’s Safest Companies since 2002. Most of the companies are large or mid-sized, but this year’s list included Hunter Site Services of Texas that has 40 employees. Providing construction project management for the design and installation of pre-fabricated blast-resistant buildings, Hunter has a 5+ years injury-free record.

Recognizing that new employees are often the ones who experience injuries, the company instituted the Short Service Employee (SSE) Program, which applies to employees who have less than 90 days with the company and/or within his or her craft. The new employees receive an initial orientation of safety requirements prior to performing work under direct supervision of a designated employee who serves as a mentor and trainer. The new employees also wear a visual designation, so that they easily can be identified on a job site.

According to EHS Today, the company also offers:

  • A behavior-based observation program, in which employees are selected at random to be the safety observer for a week, noting both good and bad safety habits.
  • An Employee Times newsletter that is distributed monthly to all employees. It includes company news, a safety corner, reasons to work safely and a section for employee input and suggestions.
  • Job Safety Analysis that includes input from all employees about hazard recognition, evaluation and control; correct tools for the job, proper PPE, housekeeping, hazard communication, specialized operations and crew suggestions.
  • A Stop Work program that allows employees to stop work, report issues to supervisors and wait until the issue is resolved to start work.
  • To overcome complacency, Hazard Hunts, in which employees visit other work areas and “hunt for any hazard” that may cause injuries.

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

Key provisions of OSHA’s new rule on walking/working surfaces, fall protection

Although an overwhelming majority of general industry accidents stem from slips, trips and falls, Subpart D of General Industry Standards, “Walking-Working Surfaces,” adopted in April 1971, was inadequate, inconsistent, and unclear, but efforts to update were continually thwarted. Finally a new rule, 513 pages long, went into effect January 17, 2017 and updated requirements for ladders, stairs, dockboards, and fall and falling object protection for general industry. It applies to all general industry workplaces and covers all walking-working surfaces, which include horizontal and vertical surfaces such as floors, stairs, roofs, ladders, ramps, scaffolds, elevated walkways, and fall protection systems. It also addresses training requirements and inspections of surfaces and equipment.

Covering a wide variety of general industry firms including building management services, utilities, warehousing, retail, window cleaning, chimney sweeping, and outdoor advertising, it does not change construction or agricultural standards. OSHA stated that it tried to align fall protection requirements for general industry “as much as possible” with its requirements for construction because many employers perform both types of activities. Many of the requirements are simplified, definitions are unified, and similar types of equipment, such as ladders, are grouped into one section.

Key differences between old and new standard

  1. Fall protectionOld standard: Mandated use of guardrails as the primary fall protection method

    New standard: Gives employers the flexibility to determine what method they believe will work best in their particular workplace situation, such as personal fall arrest, safety net, guard rails, travel restraint, ladder safety, and work positioning systems. Under certain circumstances work can be done without fall protection §1910.28(b)(1)(iii). Personal fall arrest systems do not include the use of body belts. However, body belts may be used instead of harnesses when part of a ladder safety system. The rule also adds requirements on the performance, inspection, use, and maintenance of these systems. The height at which fall protection equipment must be required remains at four feet.

  2. Updated scaffold requirements(§1910.27(a))Old standard: Outdated scaffolding standards inconsistent with construction standards

    New standard: Requires employers to comply with OSHA’s construction scaffold standards and added new requirements for rope descent systems, not previously regulated by either OSHA’s general industry or construction standard

  3. Modified ladder requirements and phase-in of ladder safety systems or personal fall arrest systems on fixed ladders (§1910.28(b)(9))Old standard: Detailed design and specification requirements for portable ladders; cages and wells acceptable form of fall protection on fixed ladders higher than 24 feet

    New standard: Employers must ensure that ladders are capable of supporting at least the maximum intended load, which is the total weight and force anticipated to be applied by employees and equipment or other materials. Mobile ladder stands and platforms must be capable of supporting four times the maximum intended load. Also, all ladders must be inspected before initial use during a work shift, and as often as OSHA deems necessary after that, to identify visible defects that could cause worker injuries. Special requirements for portable ladders include slip-resistant rungs and steps, and finding ways to secure and stabilize use on slippery and other potentially dangerous surfaces. In addition, OSHA now requires that employers ensure when employees ascend or descend a portable ladder, they maintain three points of contact at all times: facing the ladder, using at least one hand to firmly grasp the ladder, not carrying any object or load that could cause them to lose balance and fall.

    Major change: Cages and wells no longer acceptable fall protection on fixed ladders higher than 24 feet. Fixed ladders must now be equipped with ladder safety system or personal fall arrest systems. There is a grandfather and phase-in provision, that grandfathers in cages and wells on existing ladders, but requires during the phase-in period (20 years) that employers equip new ladders and replacement ladders/ladder sections with ladder safety or personal fall arrest systems.

  4. “Qualified climber” exception in outdoor advertisingOld standard: Exception allowed qualified climbers in outdoor advertising to climb fixed ladders on billboards without fall protection.

    New standard: The directive allowing qualified climbers in outdoor advertising to climb fixed ladders on billboards without fall protection will be phased out and workers must follow the fall protection phase-in timeline for fixed ladders.

  5. Rope descent systems (RDS) and certification of anchorages (§1910.27(b))Old standard: Previously regulated under General Duty Clause

    New standard: Codifies OSHA’s memorandum for employers who use RDS to perform elevated work. Prohibits employers from using RDS at heights greater than 300 feet above grade unless they demonstrate it is not feasible or creates a greater hazard to use any other system above that height. In addition, requires building owners to provide and employers to obtain information that permanent anchorages used with RDS have been inspected, tested, certified, and maintained as capable of supporting at least 5,000 pounds per employee attached.

Training requirements

Employers must make sure that workers who use personal fall protection and work in other specified high hazard situations are trained, and retrained as necessary, about fall and equipment hazards, including fall protection systems. For each fall hazard that is identified, employees also must understand how following the procedures that have been established will protect them from injury or death [29 CFR 1910.30(a)]. Instruction must include how to properly use any tools and equipment such as ladders and safety net systems, portable guardrails, mobile ladder stands and mobile platforms. Employees also need to understand any limitations that these devices present and how misuse can cause injury or death. If personal fall protection systems will be used, training must include proper hook-up, anchoring, tie-off techniques, inspection and equipment storage [29 CFR 1910.30(a)(3)].

Employers can determine the type of training: classroom, audio-visual, demonstrations, field training, web-based, computer-based or other forms of training to meet the requirements of the standard. Training must be performed by a qualified person [29 CFR 1910.30(a) (2)] and if web, video or computer-based methods are used, a qualified person must be available to answer questions. While there are no specific annual requirements for retraining, training requirements “impose an ongoing responsibility on employers to maintain worker proficiency. As such, when workers are no longer proficient, the employer must retrain them.”

Inspection requirements

The standard requires that employers inspect walking-working surfaces regularly and as needed and correct, repair, or guard against hazardous conditions.

Important transitional dates

Some provisions have delayed effective dates to assist with the transition:

  • Training workers on fall and equipment hazards – (5/17/2017)
  • Inspection and certification of permanent building anchorages – (11/20/2017)
  • Installation of fall protection (personal fall arrest systems, ladder safety systems, cages, wells) on existing fixed ladders (over 24 feet) (including outdoor advertising structures) that do not have any fall protection – (11/19/2018)
  • Installation of ladder safety or personal fall arrest systems on new fixed ladders (over 24 feet) and replacement ladders/ladder sections – (11/19/2018)
  • Replace cages/wells and installation of ladder safety systems or personal fall arrest systems on all fixed ladders (over 24 feet) – (11/18/2036)

State plans

States with OSHA-approved state plans have six months to adopt standards that are at least as effective as Federal OSHA standards. Many state plans adopt standards identical to OSHA, but some state plans may have different or more stringent requirements.

For more information on the changes, visit OSHA’s webpage on the Walking-Working Surfaces standard.

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