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.

 

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Legislative update

OSHA delays electronic record-keeping rule, but anti-retaliation provisions remain

OSHA announced on its website on May 17 that it “is not accepting electronic submissions at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.” There was no word on when, or whether, a new deadline would be set for data submission.

Although there were indications that OSHA had beta tested a secure portal with the help of a few national employers and employment organizations, the suspension did not come as a surprise. At the time the rule was published, it was noted that the portal would be live on February 1, 2017, but, after the election, there were no updates from OSHA about how precisely the database would function or when it would go live.

It’s uncertain what will happen going forward. According to the Washington Post, an OSHA spokeswoman said that the agency delayed the rule to give the agency time to address employers’ “concerns about meeting their reporting obligations.”

There are several possibilities. The Administration may formally rollback the new rule through notice and comment rulemaking to rescind all or at least this portion of the rule. Another possibility is that the rule stands or stands without the public viewing aspects. There are two ongoing lawsuits challenging the rule, which are in the early stages of litigation. It’s possible the agency will wait for the outcome of the cases. Also, the new Secretary of Labor Alexander Acosta has only recently assumed his position, so action may be delayed until Secretary Acosta’s new team at OSHA is in place. The rule is not dead… it’s wait and see.

Anti-retaliation provisions remain

The electronic filing delay does not affect the anti-retaliation provisions of the rule that went into effect in December 2016. Employers must inform workers of their right to report work-related injuries and illnesses, and they can’t retaliate against employees for doing so.

According to OSHA guidance on the anti-retaliation provisions, employers must establish reasonable procedures for reporting injuries. The guidance recommends limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.

Business groups have also challenged this provision in court, arguing that OSHA exceeded its authority. A court denied a preliminary injunction that would have blocked the provisions; however, it is still possible the court could find it illegal.

While it is unknown how aggressive enforcement efforts will be, the rule is in effect and employers need to comply. Employers should have reviewed drug testing policies and safety incentive programs in light of OSHA’s guidance. Also, they should document informing employees of the right to report injuries without retaliation and how to report, as well as post the latest version of OSHA’s Rights poster.

OSHA rescinds walkaround rule

OSHA has changed its policy on allowing employees at non-union workplaces to choose a union-affiliated representative for “walkaround” inspections, according to an April 25 memo sent to regional administrators.

The policy began in 2013 but was being challenged in court by the National Federation of Independent Business, with help from the Pacific Legal Foundation. Following the memo, the lawsuit was withdrawn on April 27.

OSHA delays enforcement of silica standard for construction

Enforcement of the silica standard for construction was set to begin June 23, but has been delayed to Sept. 23. The delay is necessary for OSHA “to conduct additional outreach and provide educational materials and guidance for employers,” according to the agency.

Despite the delay, OSHA said it expects employers in the construction industry to take steps toward implementing the standard’s requirements.

Feds won’t tackle medical marijuana

Given Attorney General Jeff Sessions’ negative position, there was much speculation if there would be efforts to resolve the conflict between federal and state laws on medical marijuana, which is still considered a Schedule I drug by the U.S. Drug Enforcement Administration, but is now legal in 29 states. President Trump signed House Resolution 244, a $1.1 trillion appropriations plan that includes language that will prevent the federal government from spending money to fight medical marijuana.

According to a press statement from the White House, a section of the bill “provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various states and territories.”

DOL withdraws guidance on employee definitions

On June 6, the U.S. Department of Labor withdrew Obama administration guidance on joint employment and independent contractors that expanded the definition of employees. The statement withdrawing the guidance noted: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.” It is expected, however, that employers, who can now rely on the law rather than administrative interpretations, will laud the news.

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

Things you should know

Attention motor carriers: “Roadcheck” annual event – June 6 – 8

Nearly three times more roadside inspections take place during the 72 hours on June 6 – 8 than on any other time of the year. Sponsored by the Commercial Vehicle Safety Alliance (CVSA), the intensive annual “Roadcheck” is a good opportunity for those in the motor carrier industry to improve their Compliance, Safety, Accountability (CSA) scores. In 2016, 62,796 truck and bus inspections were completed throughout the United States, Canada, and Mexico.

Top construction risks: geopolitical instability, workforce management issues

In a survey of executives in the construction sector, Willis Towers Watson P.L.C. found geopolitical instability and workforce management issues as the biggest challenges facing the industry. Geopolitical issues included uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines. Workforce management issues include increasing need for digital skills, a global employee network, disparate labor laws, difficulty to attract talent, and an aging population. The Construction Risk Index report can be downloaded here.

New pamphlet spotlights Hypothenar Hammer Syndrome

Scientific research organization IRSST has released a pamphlet intended to help workers recognize Hypothenar Hammer Syndrome. Aimed at workers who use vibrating tools or frequently strike, press or twist objects with the palms of their hands, the free pamphlet outlines syndrome warning signs and prevention methods.

Mayo Clinic study: second opinion leads to new or refined diagnosis for 88% of patients

Many patients come to Mayo Clinic for a second opinion or diagnosis confirmation before treatment for a complex condition. In a new study, Mayo Clinic reports that as many as 88 percent of those patients go home with a new or refined diagnosis – changing their care plan and potentially their lives. Conversely, only 12 percent receive confirmation that the original diagnosis was complete and correct.

These findings were published online in the Journal of Evaluation in Clinical Practice.

Study links participation in weight-loss programs to reduced absenteeism

Obese workers who took part in a structured weight-loss program reported fewer hours missed on the job after six months, a recent University of Michigan study shows.

Researchers surveyed 92 people who had an average body mass index of 40 and worked in various occupations. Before entering the program, participants stated in a self-evaluation that they worked an average of 5.2 fewer hours a month than their employers expected. After six months and an average of 41 pounds shed, participants reported working 6.4 more hours a month than expected.

WCRI’s CompScope™ Benchmark 2017

The 17th edition of CompScope™ Benchmarks Report is available from the Workers’ Compensation Research Institute (WCRI). The report looks at the impact of state workers’ compensation reforms on things like claim costs, rate of litigation, and disability duration and included 18 states: California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin. In California and North Carolina, the total costs per claim have been steady between 2010 and 2013. Illinois saw total costs per claim decrease by 6.4 percent since 2010, which researchers attribute to a 30 percent reduction in fee schedule rates for their medical services. Indiana’s total costs per claim decreased by 4 percent from 2014 to 2015, a product of a 10 percent decrease in medical payments, but a 5 percent increase in indemnity benefits per claim. In Florida, total costs per claim increased between 2010 and 2015, but there were decisions last year from the Florida Supreme Court that may slow or stop those increases in costs.

Rising pedestrian death toll

The latest report on U.S. pedestrian deaths, from the Governors Highway Safety Association, estimates that last year’s total rose 11.6 percent to nearly 6,000, or more than 16 fatalities a day. If that projection proves accurate – it is based on fatality records from only the first half of 2016 – it would mark the sharpest yearlong increase since records have been kept.

Analysts are putting much of the blame on drivers and walkers who are looking at their smartphones instead of watching where they are going. Tipsy walking also is part of the problem, with one in three victims legally drunk when they were struck and killed.

Workplace death rate hits a 10-year high in Massachusetts

Seventy Massachusetts workers lost their lives last year, marking a 10-year high in the rate of workplace-related fatalities, according to the Massachusetts Coalition for Occupational Safety and Health, known as MassCOSH. Sixty-two of those workers were killed on the job, many in construction; the rest were firefighters who died from occupational illnesses, such as lung cancer and heart disease.

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

Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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

HR Tip: Post-offer medical examination “textbook case” of ADA

In EEOC v. M.G.H. Family Health Center, a federal district court in Michigan ruled that the health center violated the ADA when it fired a recently hired community outreach coordinator over fears that her migraines or other impairments might interfere with her job performance. According to the court, this was a textbook case of unlawful discrimination based on a perceived disability. Congress explicitly clarified in the ADAAA that “major life activity” definitions are not relevant to the question of whether an individual has suffered unlawful discrimination based on a perceived disability.

When the health center hired the community outreach coordinator, she was told she would be required to undergo a “post-offer” medical examination by a third party, but could begin work. While the results of the exam were normal, the third party recommended she be put on a “medical hold” and undergo a costly functional capacity evaluation (FCE) due to migraines and other medical issues resulting from injuries in a car accident that were documented in her medical files. After she had been working in the job without incident for two weeks, the health center terminated her before allowing her to complete the FCE, which she offered to pay for herself.

In granting summary judgment for the EEOC, the district court noted three things that the employer did wrong: (1) it did not engage in an individualized assessment; (2) it did not follow the recommendation of the physician to have the employee complete a functional capacity evaluation; and (3) it terminated the employee’s employment after the employee had been performing the job for two weeks without incident, even though her own physician had submitted information indicating she was able to perform the job.

Takeaways: When using post-offer, pre-employment examinations, it’s best to make the offer conditional and conduct the exam prior to the first day of employment. If the exam does reveal some concerns about the ability of the individual to perform the job, it’s the employer’s responsibility to engage in the interactive process to determine if reasonable accommodations can be provided.

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

OSHA watch

Lawsuit over OSHA electronic records rule delayed

A Texas court granted a request from the Trump administration for a 60-day delay in litigation of the electronic record-keeping rule and stayed the case until June 5, 2017. The deadline to submit a proposed summary judgment briefing schedule and for the administration’s response to motions to intervene in the case was extended to July 5.

Deputy assistant secretary of labor creates blog on large enforcement cases

Since the Trump administration took office, there have been very few press releases announcing health/safety violators. For years, the agency has routinely issued press releases about companies receiving citations of $40,000 or more and some workplace safety professionals have criticized the current administration for staying quiet on the issue. Taking matters into his own hands, Jordan Barab, the deputy assistant secretary of labor for OSHA for the past eight years created a blog of the large violations from January 18, 2017 to February 14, 2017.

Guidance documents on Process Safety Management Standard issued

Three guidance documents intended to help chemical facilities comply with the agency’s Process Safety Management Standard have been released.

 

Volks Rule overturned

As expected, President Trump signed the disapproval resolution of the controversial “Volks” rule, which increased the threshold for citing employer violations from six months to up to five years.

New online tool to help healthcare facilities address bloodborne pathogens and other hazards

NIOSH has established a web-based injury and exposure monitoring system available at no cost to healthcare facilities. There are two electronic modules for tracking “sharps” injuries, as well as blood and body fluid exposures among health care workers.

Legal case addressing scope of federal safety inspections proceeds to US Court of Appeals

This case centers on an investigation of a workplace accident at Mar-Jac Poultry Inc., a poultry processor in Georgia, and OSHA’s attempt to expand it on numerous potential hazards, beyond the site of the accident and the tools involved. The company refused. OSHA obtained an administrative warrant but it was disallowed by the U.S. District Court for the Northern District of Georgia in response to a motion from Mar-Jac. It is now headed to the U.S. Court of Appeals for the 11th Circuit.

Safe + Sound week

To help employers participate and plan events for Safe + Sound week, June 12-18, OSHA has updated its webpage with sample activities, social media resources, and tools. The page also features an interactive map of events occurring across the country. Employers are encouraged to host events and activities that showcase the core elements of an effective safety and health program – management leadership, worker participation, and finding and fixing workplace hazards.

Enforcement notes

California

Building supply company fined for fatal forklift accident

A 60-year-old forklift operator was transferring building supplies from San Francisco-based Good View Roofing & Building Supply Corp.’s warehouse to a customer vehicle when the forklift he was driving tipped over the edge of a ramp and the worker was fatally crushed. The company was cited for three serious accident-related violations for failure to ensure proper use of a forklift seatbelt, failure to ensure the forklift operator was certified to safely operate the vehicle, and failure to ensure industrial ramps have at least an 8-inch curb along open edges to prevent the wheels of industrial trucks from running off the ramp. California’s Division of Occupational Safety and Health fined the company $62,320.

Appeals board upholds citations for carbon monoxide poisoning

Workers contracted by Barrett Business Services to package fruits and nuts in L&L Foods’ warehouse in Anaheim had complained to their supervisor that they were experiencing headaches, nausea and other health issues caused by forklifts operating in an enclosed area with poor ventilation. In 2012, citations were issued to both Barrett Business Services and L&L Foods for numerous safety violations, including willful violations for failing to take action on known hazards and the companies filed appeals. L&L Foods settled its case, but an administrative law judge denied Barrett’s appeal and imposed civil penalties of $80,050 and Barrett petitioned for reconsideration with the Appeals Board. The Board agreed the employer did not properly train its employees, disregarded workers’ reports of health hazards, and failed to monitor the worksite.

Georgia

Cleaning service cited for slip hazards that led to worker injury

Cleaning contractor Healthcare Services Group Inc. was cited for eight violations of workplace safety and health standards after a worker fell and broke her hip while cleaning a room at a regional hospital. Violations included not providing dry standing places or mats for workers cleaning and waxing floors, and not providing personal protective equipment to prevent exposure to hazardous chemicals. Proposed fines are $143,410.

Illinois

Employee complaints lead to citations for exposing workers to chemical hazards

An inspection of Orion Industries Ltd. in Chicago, in response to two employee complaints, identified workers in the spray painting operation being exposed to hexavalent chromium at levels approximately 40 times the permissible exposure limit. Inspectors cited the company for lacking sufficient engineering controls, work practices and protective gear to safeguard workers against exposure to hexavalent chromium. Orion was prompt in addressing the worker overexposures and achieved significant reductions in the fines by the time of its closing conference.

Massachusetts

Drain company faces $1.5M in fines following fatal trench collapse

Following the death of two employees in a Boston trench collapse, Atlantic Drain has been issued 18 citations and is facing $1,475,813 in penalties. The company was cited in two previous years and did not provide safety training and basic safeguards for employees. In February, a Suffolk County grand jury indicted Atlantic Drain and company owner, Kevin Otto, on two counts each of manslaughter and other charges in connection with the deaths.

General contractor must pay fines

An administrative law judge with the independent Occupational Safety and Health Review Commission has ruled that two Massachusetts contractors – A.C. Castle Construction Co. Inc. and Daryl Provencher, doing business as Provencher Home Improvements – were operating as a single employer at a Wenham worksite when three employees were injured in October 2014. A.C. Castle contended that, as general contractor, it was not responsible for the safety of the workers on the jobsite, asserting that they were employed by Provencher. Based on a number of factors, the judge upheld the citation as a single employer.

New York

Driller’s death leads to $360,000 in fines

Catskill-based North American Quarry and Construction Services L.L.C, has agreed to pay $360,000 in penalties related to the 2012 death of a 30-year-old driller. The employee became entangled in the rotating drill steel and suffered fatal injuries when he tried to manually load a threaded drill steel into the mast of a drilling machine at the pit. The Labor Department’s Mine Safety and Health Administration determined that, before the accident, the company intentionally removed an emergency-stop switch from the drill and that the driller was assigned to work alone under hazardous conditions.

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

Things you should know

Opioid abuse rises with length of prescription

According to a study by the U.S. Centers for Disease Control and Prevention, the risk of opioid abuse rises with lengthy prescriptions. If received a one-day prescription, 6% were still on opioids a year later; when prescribed for 8 days or more, this rises to 13.5%; when prescribed for 31 days or more, it increases to 29.9%.

Blacklisting rule repealed

President Trump repealed the so-called “blacklisting rule” that required federal contractors to disclose labor violations. The executive order had required employers bidding for federal contracts worth at least $500,000 to disclose any of 14 violations of workplace protections during the previous three years.

FMCSA will not reinstate overnight rest regulations for commercial drivers

The Federal Motor Carrier Safety Administration’s (FMCSA) regulation that required CMV (Commercial Motor Vehicle) drivers to take breaks in the hopes of preventing driver fatigue has been suspended since 2014 so that further research could be done to understand the efficacy of the program. A study from the Department of Transportation found that stricter mandated breaks did not do much to reduce driver fatigue or improve safety. Thus, the rule will not come out of suspension.

Study reveals occupations with sleep deprived workers

If your industry is health care, food service, or transportation, your workers are probably not getting adequate sleep, according to a study published March 3 in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. Workers who averaged fewer than seven hours of sleep per night were classified as having short sleep durations. Occupation groups that failed to average seven hours of sleep included:

  • Communications equipment operators: 58 percent
  • Rail transportation workers: 53 percent
  • Printing workers: 51 percent
  • Plant and system operators: 50 percent
  • Supervisors, food preparation and serving workers: 49 percent
  • Extraction workers: 45 percent
  • Nursing, psychiatric and home health aides: 43 %

The American Academy of Sleep Medicine and the Sleep Research Society recommend that adults 18 to 60 years old get at least seven hours of sleep every day. A lack of sleep can contribute to cardiovascular disease, obesity, diabetes, depression, and other health issues, as well as contribute to more injuries on the job.

NIOSH announces free health screenings for coal miners

A series of free, confidential health screenings will be available for coal miners as part of the NIOSH Coal Workers’ Health Surveillance Program. The first set of screenings will take place from March 26 to April 15 in coal mining regions throughout Alabama. The second set will occur from May 10 to May 31 throughout Indiana and Illinois. Finally, testing will take place from July 30 to Aug. 26 throughout Eastern Kentucky.

NIOSH updates mine hazard assessment software

Mine operators and workers now have access to updated hazard assessment software from NIOSH. According to the agency, EVADE 2.0 – short for Enhanced Video Analysis of Dust Exposures – offers a more comprehensive assessment of the hazards miners face by pulling together video footage and exposure data on dust, diesel and other gases, as well as sound levels.

Study: PT as effective as surgery for carpal tunnel

Physical therapy is as effective as surgery in treating carpal tunnel syndrome, according to a new study published in the Journal of Orthopaedic & Sports Physical Therapy. Researchers in Spain and the United States report that one year following treatment, patients with carpal tunnel syndrome who received physical therapy achieved results comparable to outcomes for patients who had surgery. Further, physical therapy patients saw faster improvements at the one-month mark than did patients treated surgically.

When hospital inspectors are watching, fewer patients die

A recent report in the New York Times cited a study in JAMA Internal Medicine which found death rates dropped when inspectors were onsite. In the non-inspection weeks, the average 30-day death rate was 7.21 percent. But during inspections, the rate fell to 7.03 percent. The difference was greater in teaching hospitals – 6.41 percent when the inspectors were absent, and 5.93 percent during survey weeks. While the difference may seem low, an absolute reduction of only 0.39 percent in the death rate would mean more than 3,500 fewer deaths per year.

Although the reasons for the effect are unclear, it was suggested when docs are being monitored, diligence ramps up.

Wearing eye protection can prevent 90 percent of work-related eye injuries, experts suggest

Ninety percent of on-the-job eye injuries could be avoided if workers wore eye protection, according to the American Academy of Ophthalmology (AAO). AAO offers the following tips for avoiding workplace eyestrain or injury:

  • Wear protective eyewear appropriate for the type of hazard you may encounter
  • Position your computer monitor 25 inches away
  • Follow the 20-20-20 rule: Every 20 minutes, take a break by looking at an object 20 feet away for 20 seconds
  • Reduce glare on your cell phone or digital device
  • Adjust environmental lighting near your workstation

 

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

Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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

HR Tip: ABA’s summary of 2016 FMLA cases

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from 2016 in a user-friendly manner.

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

Protect yourself: Every employer needs to understand the Borrowed Servant Doctrine

Temp and contingent workers and “lent” employees are becoming a permanent fixture in an economy where employees crave flexibility, labor competition is fierce, technological skills are in high demand, and benefit costs are significant. This growing and increasingly multifaceted worker class is rapidly changing how companies fill jobs and the makeup of their workforce. Given this trend, companies must be alert to the issues surrounding this class of worker, including workers’ compensation and tort liability.

There is an old rule known as the “Borrowed Servant Doctrine” that creates a special employment relationship where the lending employer is the “general” or “regular” employer, the borrowing employer is the “special” employer, and the employee is the “borrowed servant.” Some lawyers argue that this outdated master-servant language can easily prejudice a jury.

The doctrine is recognized in almost all states, although the specific tests used to determine if a particular worker qualifies as a “borrowed servant” and the employer as a “special employer” do vary. The majority of tests revolve around the question of control, both over the work that is being done and the manner in which it is performed. Many states have adopted a three-part test:

  1. The employee has made a contract of hire, express or implied, with the special employer (consent may be inferred from the employee’s acceptance of the special employer’s control or direction)
  2. The work being done is essentially that of the special employer; and
  3. The special employer has the right to control the details of the work.

Most common relationships that lend themselves to special employer situations

  • Skilled or unskilled labor employed by a temporary staffing agency
  • Property managers who work at a specific property
  • Employees who are hired to work at a client’s location, such as IT personnel and accountants
  • Contractual relationships between a general contractor and subcontractor or equipment rental companies

This doctrine does not apply to employee leasing operations such as PEOs and, in most cases, does not apply to independent contractors.

Why it’s important to understand the terms of the relationship

  • If not protected by a contractual agreement, the workers’ compensation policy of the special employer could be tapped to provide benefits for “borrowed servants,” increasing premiums for additional employees and rates, if someone is injured.
  • An injured “borrowed servant” can sue the person who caused the injury and that person’s direct employer, if the employer is not a “special employer”.

Contrasting two legal decisions illustrates the importance of protecting the company before entering into such hiring agreements. In Gregory v. Pearson, a temp working for Cleveland County in North Carolina filed a lawsuit against the County after suffering a workplace injury. While the County argued that the lawsuit was barred by the special employment and exclusive remedy doctrines and the trial court agreed, the Court of Appeals reversed the decision. Noting that the contract between the temp agency and the County expressly stated that temporary workers were not employees of the County, the Court held that the County failed to satisfy the first requirement of the special employment doctrine, i.e., that the employee had entered a contract of employment with the County. The temp was, therefore, not a special employee, and her case was not barred by the exclusive remedy doctrine.

In Massachusetts, an employee of American Resource Staffing Network, Inc. (ARS) was injured while on assignment at ARS’s customer, State Garden, Inc. (State Garden). The worker was awarded workers’ compensation benefits under ARS’s workers’ compensation insurance policy. The state statute permits injured workers to bring suit against “any person other” than the insured employer who may be liable for the worker’s injuries and the worker sued State Garden claiming that its negligence caused his injury in Molina vs. State Garden, Inc. The contract between ARS and State Garden included an “alternate employer endorsement” to ARS’s workers’ compensation insurance policy. That endorsement provided that ARS’s worker’s compensation policy “will apply as though the alternate employer [State Garden] is insured.” Thus, the Appeals Court determined that the exclusive remedy of workers’ compensation protected State Garden.

Protection options for employers

  • Alternate Employer Endorsement is designed to extend Workers’ Compensation protection to the special employer’s “borrowed servants.” Attached to the general employer’s policy, the endorsement specifically names the special employer, thus extending the required Workers’ Compensation protection without the need of the special employer to make any adjustment to its policy. Insurance expert, Christopher Boggs, Executive Director / Virtual University at Independent Insurance Agents and Brokers of America, notes, “If you are the special employer, this could be a good solution, but if you are the direct employer moving the coverage to the special employer may be the best solution.”
  • Multiple Coordinated Policy Endorsement extends benefits to the borrowed employees rather than having to depend on the staffing firm for coverage, if the staffing agency is unwilling to name the special employer as an alternate employer.
  • Contractual risk transfer. Require the “general employer” to indemnify the “special employer” against all losses, damages and claims arising from the negligence of the “borrowed servant.”
  • Require the “general employer” to name the “special employer” an additional insured under the “general employers” GL Policy.

The determination of the existence of the special employer relationship is based on the particular facts of the case and no two cases are exactly the same. It is the reality of the control that is relinquished to the “special employer,” not the parties’ characterization of the relationship that will determine the outcome.

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