Things you should know

Deadline to submit pay data to EEOC extended

A federal court judge has granted the EEOC’s request to extend the deadline for employers to report equal pay data (known as Component 2) of the EEO-1 to September 30, 2019. Notice has been posted on the EEOC website.

Preventing falls in construction: NIOSH issues fact sheet

NIOSH has published a new fact sheet intended to help construction employers and workers prevent falls from roofs, ladders, and scaffolds.

FMCSA webpage answers FAQs on upcoming database of CMV drivers who fail drug, alcohol tests

The Federal Motor Carrier Safety Administration (FMCSA) has created a webpage that outlines specifics of the Drug and Alcohol Clearinghouse, a national online database intended to provide – in real time – the names of commercial motor vehicle drivers who have failed drug and alcohol tests.

‘Dirty Dozen’ list of workplace safety violators released

The National Council for Occupational Safety and Health (NCOSH) released its 2019 “dirty dozen” companies that the organization says failed to protect workers from preventable illness, injury and death.

This year’s list includes:

  • Amazon.com Inc., Seattle
  • Atlantic Capes Fisheries Co., Cape May, New Jersey, and the staffing firm it uses, B.J.’s Service Co Inc., New Bedford, Massachusetts
  • Bedrock Detroit LLC, Detroit
  • Beiza Brothers Harvesting LLC, Moultrie, Georgia
  • Facebook Inc., Menlo Park, California, along with contractors Accenture PLC, Cognizant Technology Solutions Corp., PRO Unlimited Inc. and Tech Solutions Co.
  • Genan Inc., Houston
  • Integra Health Management Inc., Timonium, Maryland
  • The Johns Hopkins Hospital, Baltimore
  • McDonald’s USA LLC, Oak Brook, Illinois
  • Purdue Pharmaceuticals LP, Stamford, Connecticut, and the opioid industry
  • Tooma Enterprises Inc., Sterling Heights, Michigan
  • XPO Logistics, Greenwich, Connecticut

 

Report on women and safety in the workplace

The American Society of Safety Professionals (ASSP) released a report on women and safety in the modern workplace. The report focuses on three main challenges faced by women and offers potential solutions.

WCRI releases comp state trends reports

The 18 states in the CompScope report are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas, Virginia and Wisconsin.

According to an article in Business Insurance, key findings include:

  • The median indemnity costs per claim across the states for three years starting in 2015 was $17,778, with North Carolina, Pennsylvania and Georgia ranked in the top three and Wisconsin, Indiana and Texas in the bottom three.
  • The median cost per claim with more than seven days lost time between 2015 and 2018 was $41,888, with Louisiana, Pennsylvania and Virginia ranked in the top three and Minnesota, Tennessee and Texas in the bottom three.
  • The median medical payments per claim in 2017 was $13,524, with Wisconsin, Virginia, and Indiana ranked in the top three and Massachusetts, California and Texas ranked in the bottom three.
  • Twenty-nine percent was the median percentage of 2015 claims with more than seven days of lost time and 36 months of experience that had a defense attorney involved. Among the states with the highest attorney involvement were Illinois, New Jersey and California. Those with the lowest were Texas, Wisconsin and Minnesota.

New resource to help employers understand mental health issues

The DOL, in coordination with the Office of Disability Employment Policy (ODEP) and its Employer Assistance and Resource Network on Disability Inclusion (EARN), has launched a new resource, Mental Health Toolkit to help employers better understand mental health issues and to provide guidance on how to cultivate a supportive workplace.

Workers’ marijuana use major contributor to rise in positive drug tests, analysis shows

The rate of positive drug tests for illicit substances among U.S. workers in 2018 reached a 14-year peak, with marijuana playing a significant role, according to the annual Drug Testing Index from lab services provider Quest Diagnostics.

Researchers found that 4.4% of the combined U.S. workforce tested positive – up from 4.2% in 2017 and 2016 and the highest since 2004 when the rate was 4.5%. “Post-accident” positive tests showed rate increases: to 8.4% from 7.7% in 2017 among employees in the general workforce, and to 4.7% from 3.1% among workers in safety-sensitive jobs.

Boom lift scenario now part of NIOSH simulation tool

NIOSH has added a boom lift scenario to its Aerial Lift Hazard Recognition Simulator.

The training tool includes a scissor lift operation simulation, provides realistic workplace scenarios “to help potential aerial lift operators acclimate to aerial lift operation and to identify the common occupational hazards during use,” but is not intended to be a replacement for required training.

Protecting first responders from fentanyl exposure: NIOSH releases video

NIOSH has released a 13-minute video intended to protect first responders who face potential exposure to fentanyl – a synthetic opioid considered up to 50 times more potent than heroin – and other illicit drugs.

State News

California

  • The number of independent medical review determination letters calling for review of treatment denials and modifications peaked to 184,733 in 2018, 7.3% more than in 2017 according to the California Workers’ Compensation Research Institute. Full report.
  • 55% of medical bill reviews were overturned according to a report by the California Department of Industrial Relations.
  • The Workers’ Compensation Insurance Rating Bureau determined that the modest improvement in pure premium workers’ compensation rates so far in 2019 does not warrant a midyear filing.

New York

  • The New York State Workers’ Compensation Board announced that the maximum weekly wage benefit rate will climb, from $905 to $934, effective July 1.

Pennsylvania

  • Insurance Commissioner approved a nearly 13% reduction in loss costs for workers compensation insurance.

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

Legal Corner

ADA 
Trucking firm settles suit over pre-employment screenings

Greeley, Colorado-based JBS Carriers Inc., which is the transportation affiliate of multinational meat processor JBS USA Holdings Inc., contracted with a third-party administrator, Denver-based ErgoMed Systems, to administer pre-employment screenings. The EEOC found that all applicants were subjected to a medical history questionnaire, a physical examination and nine physical abilities tests, and if an applicant failed any one of the tests, ErgoMed sent a negative job recommendation to JBS, which withdrew conditional job offers based on its recommendations.

The EEOC alleged this process unlawfully screened out people with disabilities and reached a $250,000 settlement with JBS. Under terms of the settlement, JBS will not contract with ErgoMed for three years and not implement any physical or medical screening for conditional hires apart from the DOT medical certification and urine analysis, among other provisions.

Perceived disability sufficient to reinstate suit

In Jonathan C. Baum v. Metro Restoration Services, an employee who worked as a scheduler for Louisville, Kentucky-based Metro Restoration Services Inc., began having heart problems and occasionally missed work for medical concerns. After a severe weather hit in 2015, he worked remotely to coordinate crews. He was fired a week later and the company’s owner told him it was because of his health issues and doctors’ appointments.

He filed suit, charging he was fired both because he was disabled and because the company regarded him as disabled. A lower court dismissed the case because he did not present an expert witness, but an appellate court found a jury could find that Metro fired him because the owner thought he was disabled, and reinstated the case.

Workers’ Compensation 
Widow loses civil suit based on “power press” exception to exclusive remedy – California

In Ochoa v. Setton Pistachio of Terra Bella Inc., a widow of a man who died when another worker accidentally started the machine he was maintaining filed a wrongful death suit, arguing the machine was a power press that, under certain conditions, can be exempt from exclusive remedy. The court agreed with the defendants that the machine in question was a conveyor-style “auger” and not a press that used a die. A product liability claim was also rejected.

Sawmill pays $375,000 in settlement of civil suit related to workers’ death – California

Morgan Hill-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, was sued by the district attorney following the death of a millworker, who died in a bark conveyor that the employees regularly walked on while they were unjamming it. The DA’s office investigation found a culture of production over safety at the mill and that the sawmill and its two other facilities in Sonoma County did not have written procedures for employees to work on, unjam or clean machinery and equipment.

Secondary treatment issues clarified – California

In a panel decision, Pena v. Aqua Systems, it was clarified that secondary treatment requests do not have to be initiated by the PTP and that selection of a secondary treater is not subject to Utilization Review (UR) and, therefore, does not require a Request for Authorization (RFA). Failure to promptly respond to and approve secondary treatment requests is likely to result in a penalty assessment.

Six-month limit on mental injuries upheld – Florida

In Kneer v. Lincare & Travelers Ins., an appellate court ruled that an employee was not eligible for benefits for psychiatric injuries because they occurred more than a year after he had reached MMI on his back injury. The court said the claim for temporary benefits for the mental condition was untimely because there is a six-month limitation for temporary benefits for psychiatric injuries (which follow a physical injury).

Remote workers beware: trip over dog not compensable – Florida

In a 12-2 decision, Sedgwick CMS v. Valcourt-Williams, an appeals court reversed the decision of a workers’ compensation judge. Working in Arizona, a home-based workers’ comp claims adjuster tripped over one of her two dogs, causing her to fall and sustain injuries to her knee, hip and shoulder as she was getting coffee in her kitchen. The court noted that there are limitations to the “arising out of” rule when risks unrelated to work lead to the injury. In this case, her non-employment life (her dog, her kitchen, reaching for a coffee cup) caused the accident, not her employment.

“One Day Rest in Seven” can’t circumvent exclusive remedy – Illinois

In Webster v. FirstExpress, Inc., a federal district court held that the state’s “One Day Rest in Seven Act” may not be used to circumvent the exclusive remedy of the Workers’ Compensation Act. An employee of a tire service company was killed in a collision with a vehicle owned by FirstExpress, Inc. It was argued that the worker had been required to work mandatory overtime and failed to get a full day of rest as called for in the statute. However, the court ruled that the employer was immune from tort liability because its actions did not rise to the level of “specific intent” to harm.

High court clarifies application of treatment guidelines – Minnesota

In Johnson v. Darchuks Fabrication, an employee was diagnosed with complex regional pain syndrome following a work-related incident. As part of the settlement, the company paid for ongoing medical expenses, which included over ten years of opioids. The employee was asked to go through a fourth IME, and for the first time, the medical examiner expressed doubt about the diagnosis. As a result, the company notified the employee it was discontinuing coverage for the medication. It argued the complex regional pain syndrome had been resolved and that the long-term opioid use did not comply with the workers’ compensation treatment parameters.

The case found its way to the Supreme Court and the company argued that the treatment parameters applied in this case. The court agreed, noting the treatment parameters do not apply when liability for the benefits has been denied, but a challenge to the reasonableness and necessity of treatment is not a denial of liability. It ordered the case remanded for further proceedings.

PPD award for fall in employer’s parking garage affirmed – Missouri

In McDowell v. St. Luke’s Hosp., an appellate court affirmed a decision by the state’s Labor and Industrial Relations Commission awarding workers’ compensation benefits to an employee who fell while bringing her belongings from the garage to her work station. While the state statute generally means benefits are denied when the hazard or risk is one to which the worker would have been “equally exposed outside of and unrelated to the employment in normal nonemployment life,” the court found that her fall was the result of her need to pull and maneuver a two-wheeled cart containing work-related supplies through a congested entryway and, therefore, was compensable. She did not face such a hazard in her non-employment life.

The worker, who had worked for the hospital for 45 years, had undergone a hip replacement and used a cane. The hospital had provided her with the two-wheeled cart to transport her belongings from the garage during her recovery.

No survivor benefits for daughter of deputy killed in car crash while exchanging shift information on his cell phone – Nebraska

In Coughlin v County of Colfax, a deputy sheriff was driving home and on his cell phone exchanging shift information with another officer who just came on duty when his vehicle hit a deer’s carcass. He lost control of the car, collided with another vehicle driving in the opposite lane of traffic, and died.

His brother filed a workers’ comp claim, which was denied based on the going and coming rule. The course and scope of employment had not been expanded by the cell phone conversation, in spite of its work-relatedness. It was determined that he was in his personal vehicle and off duty at the time of the accident.

An appellate court considered whether the cell phone communication was an employer-created condition that rendered the going and coming rule inapplicable. It found that although the Department expected the deputy to exchange shift-change information, it did not prescribe any one way of doing so and, in fact, had a cellphone policy that prohibited using a cell phone while driving a county-owned vehicle. The denial was affirmed.

Appellate court overturns decision to disqualify worker from future benefits – New York

In Matter of Persons v Halmar Intl, an appellate court overturned a decision by the Workers’ Compensation Board that disqualified an injured construction laborer from receiving future wage replacement benefits because he made false statements about his physical condition in violation of the law. The appellate court found that the Board’s findings based on video footage of his work as a volunteer firefighter and another video were inaccurate and could not be ascertained without further medical testimony. Further, the worker had acknowledged and disclosed his work as a volunteer firefighter.

The court concluded, “Simply put, our review of the record reflects that the Board’s decision [was] not supported by substantial evidence as it [was] based upon speculation, surmise and mischaracterizations.”

Law barring undocumented workers from additional benefits upheld by high court – Tennessee

The Supreme Court ruled that a state statute limiting the benefits available to a worker without legal authorization to work in the United States is not pre-empted by federal immigration law. The case, Salvador Sandoval V Mark Williamson, involved an undocumented worker for Tennessee Steel Structure who was injured on the job and received PPD benefits. He did not return to work after benefits ended and filed for additional benefits, but state law precludes benefits for anyone who is not eligible or authorized to work legally in the US.

The worker argued the law was unconstitutional because it was pre-empted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court concurred with the Special Workers’ Compensation Appeals Panel that the law does not conflict with any provision of the IRCA.

Attempt to guide hand truck does not constitute “lifting” in violation of safety rules – Virginia

In Snelling Staffing/Chesapeake & Ace Am. Ins. Co. v. Edwards, the employer argued that an employee violated a known rule that prohibited lifting more than 40 pounds without assistance when he was injured. The worker and a co-worker stacked three boxes of computers, each weighing approximately 120 pounds, on a hand truck. When the worker attempted to pull back on the truck, the weight shifted and he tried to steady it with his leg, injuring his back.

The appellate court agreed with the Commission that the employee’s actions did not constitute “lifting” in violation of employer’s safety rule.

Police officer’s slip on the grass not compensable – Virginia

In Conner v. City of Danville, a police officer was part of a surveillance team at a duplex and was interviewing a homicide suspect outside with a colleague. Rain turned to hail and a tornado was moving through, so they decided to seek shelter. She twisted her knee when she slipped on the grass and almost fell and reported the injury. Through treatment, it was found that three discs in her back had apparently been affected and that surgery was needed.

Her comp claim was denied by the deputy commissioner and affirmed by the Commission and an appellate court because her risk of exposure to the tornado was not increased because of her employment. The interview was suspended while they attempted to get out of the weather, which is an act of God. Therefore, this was not a work-related injury.

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

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

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

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

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

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

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

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

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

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

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

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

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

HR Tip: Two important FMLA documents

ABA’s summary of 2018 FMLA decisions

Each year, 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 2018 in a user-friendly manner.

Opinion letter

In a recent opinion letter, the U.S. Department of Labor addressed whether an employee could delay FMLA leave and instead utilize accrued paid leave when the absence clearly would qualify as FMLA leave. The answer was a straight forward “no”.

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

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

PPE and women: 13 do’s and don’ts

The recent cancellation by NASA of the highly publicized first-ever all-woman spacewalk is a good reminder of the importance of proper fitting PPE. Even with extensive training on the ground, getting the right fit for a spacesuit in microgravity can be a challenge since the body changes slightly in space due to fluid shifts or spine elongation.

Only one suit for a medium-size torso, which is the size that best fits the two astronauts, is ready for use on the station. While the decision was made by one of the astronauts who thought a large-size suit would be fine, but after a spacewalk a week earlier decided the medium-size was a better fit, it was met by some with disbelief on Twitter. The number of women entering traditionally male-dominated fields continues to grow and many have encountered improperly fitting personal protective equipment (PPE) and personal protective clothing (PPC). (The two female astronauts were part of a class that had 50/50 gender representation.)

According to The Washington Post, “Across social media platforms, women told of giant overalls, wading boots that were the wrong size, oversize gloves that kept them from being nimble, a lack of bulletproof vests that accommodated their chest sizes and a dearth of petite-size personal protective equipment at construction sites.”

While there is increased awareness and significant strides have been made in PPE for women, the fact remains that most PPE was designed based on average male body measurements and it has only been in recent years that manufacturers have tailored PPE to women. When there are products specifically designed for women some worksites just don’t have them readily available.

The best practices of providing PPE for women are very similar to those for men. Here are 13 do’s and don’ts:

  • Don’t assume your PPE is appropriate for all of your employees. Find out what is and isn’t working by getting feedback from employees. Monitor the use and identify situations where it is not used when it should be.
  • Don’t ask women to wear PPE that is too big. It is not going to provide adequate protection and in some cases creates even more serious safety risks.
  • Don’t alter PPE. It should be certified to specific standards, and alterations beyond built-in adjustment features can make the garment no longer compliant – and unsafe.
  • Don’t subject women to derogatory remarks or disingenuous humor about how they look in PPE.
  • Don’t assume women are only concerned about “how it looks.”
  • Don’t criticize, ignore, or retaliate against employees who report ill-fitting PPE.
  • Don’t penalize employees who refuse to work when appropriate PPE is not available.
  • Do involve employees in the selection of PPE.
  • Do provide the same range of sizes for women as for men, and ensure suppliers have properly assessed the appropriateness of their equipment to women and men.
  • Do ensure employees try on several sizes or types of PPE before it is issued to ensure the best fit.
  • Do educate employees about why the PPE is to be worn and train how to properly use it.
  • Do make appropriate provisions for pregnant women.
  • Do get supervisor buy-in.

The gender pay gap is substantially less in many non-traditional jobs than in other professions, and training and apprenticeships present great opportunities for women. Yet, as noted in the Construction Productivity Blog, “recruitment bias, company cultures where harassment isn’t thoroughly addressed and even reasons as simple as tools and gear not made for women in mind, also all play a critical role into why more women aren’t considering building as a career.”

Attracting women to non-traditional fields can help industries deal with an acute labor shortage and have economic benefits. According to the Peterson Institute, construction companies that were in the top 25% in gender diversity of their workforce were 46% more likely to outperform their industry average. Providing the right PPE is another way companies can recruit and retain more female talent.

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

HR Tip: Court ruling does not affect ACA obligations

The recent court ruling by a federal judge in Texas that the Affordable Care Act (ACA) is unconstitutional, does not affect the coverage and reporting obligations for employers. The ruling is a declaratory judgment and not an injunction to freeze the ACA and most expect the case will make its way to the Supreme Court.

Similar to the past two years, the IRS has extended the original Jan. 31, 2019, deadline for employers to distribute 2018 Forms 1095-C or 1095-B to employees to March 4, 2019. The critical 2019 filing deadlines for forms that detail 2018 coverage are now as follows:

ACA Requirement Deadline
Paper filing with IRS Feb. 28
1095 forms delivered to employees March 4 (extended from Jan. 31)
Electronic filing with IRS April 1

Employers that file 250 or more information returns with the IRS must file the returns electronically. Because of the extension, the 30-day extension that would normally be available on a showing of good cause is not available – March 4 is a hard deadline.

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

HR Tip: New FMLA forms available from DOL

The Family and Medical Leave (FMLA) certification forms and notices are now valid until Aug. 31, 2021. DOL didn’t make any substantive changes to the forms, other than the new expiration date. Here they are:

Notices

Certification forms

The DOL must submit its FMLA forms to the Office of Management and Budget (OMB) for approval every three years. OMB review is required to ensure the FMLA certification and notice process isn’t too bureaucratic.

While the forms aren’t mandatory, many employers use them. Some employers copy and paste the DOL form into their own form, replacing the DOL logo with their own.

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