HR Tip: New I-9 form now available

On Jan. 31, 2020, the U.S. Citizen and Immigration Services published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget approved on Oct. 21, 2019. This new version contains minor changes to the form and its instructions. Changes to the instructions clarify who can act as an authorized representative on behalf of the employer and what documents are acceptable as well as other updates.

It’s a best practice to begin using the form immediately, although the notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

The new edition of the form is available in fillable PDF format, print format and in Spanish on USCIS’ I-9 Central website. However, the Spanish form may only be executed by employers in Puerto Rico; employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the form as a translation guide only but must complete the English version of the form.

All U.S. employers are required to complete a Form I-9 for every employee hired to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA) and for re-verifying current employees with expiring employment authorization documentation. Employers should not complete new forms for existing employees who do not require re-verification.

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Legal Corner

ADA

Construction company pays $100K for firing worker with epilepsy

A Bellingham, Washington company, formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). A pipefitter, who also holds a rigger’s certification, was dispatched by her union to work on a project. When she told her supervisor that she has epilepsy, he and other supervisors determined she could not work safely at heights and terminated her. She had not requested accommodations, had no medical restrictions, and her epilepsy was well controlled by medicine.

The law requires employers to make a case-by-case assessment of an employee’s ability to perform the job when safety concerns exist. EEOC Seattle Field Director Nancy Sienko said, “Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual’s abilities.”

FMLA

FMLA doesn’t provide protection for employees to evaluate family member’s medical condition

In Schaar v. U.S. Steel Corp., a manager in the customer quality engineering department, who lived in Michigan, was aware of problems with a top customer in Mississippi. When the matter became urgent, he was onsite in Tennessee and was ordered to travel to Mississippi to handle the problem himself. He refused because his wife had a heart condition and wasn’t feeling well and he had to return to Michigan to assess the situation. When he arrived home, he determined his wife did not require medical attention.

Returning to work the next day in Michigan, he was fired for insubordination. The manager sued under the FMLA for both interference and retaliation. The U.S. District Court for the Eastern District of Michigan ruled in favor of U.S. Steel on its motion for summary judgment on both claims. The manager never requested FMLA leave or a reduced work schedule to care for his wife.

Distinguishing between providing care to a family member and evaluating a family member’s condition, the court determined he was not providing care and was not entitled to FMLA leave.

Workers’ Compensation

Comp settlement bars claim for disability discrimination – California

In an unpublished decision, Kennedy v. MUFG Union Bank, a bank employee claimed she worked in a hostile work environment and took a medical leave for stress, anxiety, and depression. While she was out, the bank restructured and eliminated her position. Unlike others, she did not receive a severance package.

Her request to return on a reduced work schedule was denied because the position was eliminated, so she filed a comp claim. When it was settled, she resigned voluntarily. She then filed suit based on disability and her race. The court argued there could be no wrongful termination because she was not terminated and that the record demonstrated a legitimate, nondiscriminatory reason for the increased supervision.

Employer not liable for fatal accident caused by injured employee – California

While commuting to work, an employee of the City of Los Angeles struck and killed a pedestrian. A chemist who worked in the lab, the employee did not use his car for employment. He did have a neurological condition and had fallen at work, suffering a back sprain. After some time off, he was allowed to return to work with restrictions. About three weeks later he was driving to work and struck and killed a pedestrian. Initially his license was suspended, but it was reinstated and he was not charged.

Two brothers of the deceased argued the city should be held responsible because it knew of his condition and allowed him to return to work prematurely, so the “work-spawned risk endangering the public” exception to the going and coming rule applied. The court disagreed and found the chemist was on his commute to work and the accident was unrelated to his employment.

Exclusive remedy defense in civil suit allowed in spite of comp denial – Florida

In McNair v. Dorsey, an appellate ruled that the employer’s denial of liability for a comp claim did not prevent it from using the exclusive remedy defense in a civil case. The employee worked for James Armstrong’s tree service company and was working with a coworker, Dorsey, when he alleged he suffered injuries. The insurance company found that there was no compensable claim. He then voluntarily dismissed the comp claim and alleged negligence on the part of both Armstrong and Dorsey, arguing the exclusive remedy defense did not apply since his claim had been denied.

While a trial court found in favor of the employer, the appellate court noted an employer can be barred from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim “by asserting that the injury did not occur in the course and scope of his or her employment.” However, the court noted that the employer is not always foreclosed from claiming immunity to a lawsuit simply because it denied compensability in an earlier proceeding.The factfinder needs to determine if the accident occurred in the course and scope of employment and would have been covered by workers’ comp and protected by exclusive remedy.

Worker who filed comp claim after being fired can bring retaliatory discharge suit – Florida

In Salus v. Island Hospitality Florida Management Inc. a worker reported an injury and later told the employer he was having difficulty getting follow-up treatment. Two weeks later he was fired, allegedly for threatening physical harm to a co-worker, which he denied. He filed suit for retaliatory discharge. The trial court found that reporting an injury was not the same as filing a claim and granted summary judgment to the employer.

The appellate court disagreed. It noted it would not make sense to limit the statute to retaliatory acts that occurred after filing the claim because an employer could easily avoid liability by firing the employee right away. Further the employee’s actions were consistent with a workers’ comp claim that is protected. Since there was a genuine issue of material fact as to the reason for termination, summary judgement was inappropriate.

Health care providers can’t go after comp settlement – Illinois

After an injured employee filed for bankruptcy protection for minimal assets and her pending workers comp claim ($31,000), the state Supreme Court ruled that the proceeds of a workers comp settlement are exempt from claims made by medical providers who treated the injury or illness in re Hernandez. She owed a combined $138,000 to the three medical practices.

Section 21 of the statute provides that any payment, award or decision under the Workers’ Compensation Act is unequivocally free from claims to satisfy debt; however, the health care providers argued that amendments in 2005 provide an exception to the exemption. The court disagreed, noting there was “no ambiguity whatsoever in this provision.”

Employer does not have to pay for rehab after injury is resolved – Minnesota

In Ewing v. Print Craft Inc., an employee sprained his ankle and there was medical disagreement as to whether he developed complex regional pain syndrome (CRPS). His primary care provider and podiatrist found he had, but doctors at the Mayo Clinic disagreed and said the injury was resolved. He met with a rehabilitation consultant who prepared a rehabilitation plan and submitted it to the Department of Labor and Industry and also provided medical management services to address Ewing’s reported symptoms.

Although the insurance company notified her that they were requiring an IME and would not pay for any further services, the consultant continued to provide services. The IME found that the employee had suffered an ankle sprain and did not have CRPS. A compensation judge held the injury was resolved on the date provided by the Mayo Clinic. The consultant appealed and the WC Court of Appeals overturned, noting the print company needed to provide notice and show good cause to terminate the rehabilitation plan.

The Supreme Court reversed, noting an employer’s liability ends when the worker is no longer disabled.

Worker who intentionally shot self with nail gun denied comp – Nebraska

In Eddy v. Builders Supply Co. Inc., an employee said a nail gun misfired and caused a three-quarter-inch nail to become embedded in her right temple. There were no witnesses. While co-workers testified that guns had misfired in the past, the company presented evidence regarding her personal life and a possible suicide note. The compensation court found that the employee shot herself intentionally and the Supreme Court agreed.

Misrepresentations about job search nix benefits – New York

In Matter of Calabrese v. Fortini Inc., an appellate court upheld a finding that a worker had made misrepresentations about his efforts to find a new job, thereby forfeiting his entitlement to benefits. The employer’s investigator contacted several of the employers identified by the worker and found he had not submitted an application, applied for a job that did not exist, or the contact did not exist.

Although the appellate court acknowledged that this evidence was hearsay, it was sufficiently reliable and provided substantial evidence to support the Workers’ Compensation Board finding that the worker had made false representations to obtain benefits.

Award of benefits for unwitnessed and unexplained fall upheld – New York

In Matter of Docking v. Lapp Insulators LLC, a truckdriver was loading a cart when he apparently fell and was found unconscious and bleeding by co-workers. When he regained consciousness, he had no memory of what happened. Under state law, there is a presumption of compensability for accidents occurring during the course of employment, which are unwitnessed or unexplained, and he was awarded benefits by a compensation law judge.

Upon appeal, a state appellate court noted to rebut the presumption, it is the employer’s burden “to provide substantial evidence that the accident was not work-related.” While the employer presented medical testimony that the fall and resulting brain injury were caused by a preexisting cardiovascular condition, the Emergency Room doctor testified that there were no signs of heart damage or atrial fibrillation. The possibility of a preexisting, idiopathic condition was not enough to overturn the decision.

Assaulted bus driver not fully disabled by PTSD and morbid obesity – New York

In Matter of the Claim of Robert Rapaglia v. New York City Transit Authority, the Supreme Court Appellate Division affirmed a Workers Compensation Board decision that the driver had a 60% loss of earning capacity but was not fully disabled. The bus driver argued that the board failed to consider his obesity and limited education and work experience in calculating his percentage of lost wage-earning capacity.

The court noted that in rating the severity of a medical impairment due to PTSD or other causally-related psychiatric conditions, “the evaluation should include the impact of the psychiatric impairment on functional ability, including activities of daily living.” While there was conflicting medical testimony, the court found the Board had not erred in finding that he could not drive a bus, but was capable of other work, nor could it conclude that his obesity was causally related to the workplace injury.

Employer may have to pay for expensive compound cream – Pennsylvania

In Workers’ First Pharmacy Services LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Gallagher Bassett Services), the Commonwealth Court ruled that a pharmacy did not prematurely file a fee review petition to challenge an employer’s refusal to pay for a compound cream that had been prescribed to an injured employee. The employee had injured her shoulder and the comp claim was accepted. Her physician prescribed a compound cream, which the pharmacy dispensed and billed the employer $4,870.

The employer refused to pay, and the pharmacy filed a fee review application, which the employer argued was premature because it had not been established that the cream was related to the work injury. However, the pharmacy argued that company waived its right to challenge the cream as unrelated because it did not seek a Utilization Review (UR).

After several appeals, the Commonwealth Court ruled that employers or insurers must make payments to providers for treatment within 30 days unless there is a dispute as to the reasonableness or necessity of the treatment, in which case the payer may seek a UR. The court vacated the decision and remanded for a fee review determination.

Widow and children to receive death benefits for fatal workplace stabbing – Pennsylvania

In JBS Holdings USA Inc. v. Workers’ Compensation Appeal Board, a worker was stabbed to death by a co-worker. While the company argued that the murder was related to a “personal animus” and not work-related, the court ruled there was no evidence of personal animosity. The ruling was upheld upon appeal.

Temporary worker who experienced horrific injuries fails to win tort lawsuit – Tennessee

In Henry v. CMBB LLC, the 6th U.S. Circuit Court of Appeals held in a 2-1 decision that the employee’s intentional tort lawsuit was barred by the exclusive remedy provision of the Tennessee Workers Compensation Act. The temporary worker was assigned to work at a manufacturing facility and operated a 200-ton metal press, which contains a light curtain that prevents it from cycling when it detects a worker nearby. An operator had reported that the curtain was not working properly and one was on order, but the press remained in service.

The temp worker was operating the press when the machine cycled, crushing her arms, both of which were amputated below the elbow. She and her husband filed a lawsuit arguing the company intended to injure her because it was well aware of the danger but continued to operate the machine. The courts, however, noted that even if the employer was aware of the potential for injury, it does not mean the employer intended to injure the worker. Precedent has held that even egregious safety violations fail to show actual intent to injure and the exclusive remedy provision prevails. In Tennessee, the intentional tort exception is quite narrow.

Two years apart, injuries can stem from same accident – Virginia

In Merck & Co. v. Vincent, a worker injured his neck and arm in 2009. In 2011, he became dizzy and fell as a result of pain medication, seriously injuring his knee. The Court of Appeals upheld the Workers’ Compensation Commission ruling that the injuries arose from “the same accident” for purposes of determining whether he was permanently and totally disabled. The Virginia statute provides for an award of permanent total disability benefits to a worker who has suffered the functional loss of two limbs “in the same accident.”

The court noted the “compensable consequence” doctrine, which says that if an injury arises out of and in the course of employment, “every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.”

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

 

HR Tip: Retaliation continues to top EEOC workplace discrimination charges

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

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

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

For a detailed breakdown by state.

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

Reminder: Injury reporting deadlines

Employers are reminded that they must post their 2019 Summary of Work-Related Injuries and Illnesses (Form 300A) from February 1 to April 30.

March 2, 2020 is the deadline for companies that are required to submit the form electronically using the Injury Tracking Application. It’s important to remember that in reporting 2019 data, establishments must now provide their Employer Identification Numbers (EIN). For more information.

For free access to OSHA Recordkeeping & Injury Reporting/Tracking software that has automated OSHA Uploading compatibility, visit here.

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

Legal Corner

Workers’ Compensation

Privette doctrine protects film studio from personal liability suit – California

In Castro v. ABC Studios Inc., ABC contracted with the owner of a gas station to film a TV show and also hired Executive Assurance (EA) to provide security for the property. On the side of the property was a metal rolling gate weighing about 900 pounds that did not have stops, in violation of Cal OSHA. On the day of the filming, a security guard employed by EA attempted to stop the rolling gate from hitting a truck and the gate fell on her, causing serious injury.

The security guard filed suit against the landowners and ABC, asserting claims for premises liability and negligence. The Court of Appeal for the 2nd District upheld the finding of the lower court that the Privette (1993 decision in Privette v. Superior Court) doctrine applied. Subject to certain exceptions, the Privette doctrine bars employees of independent contractors from suing the hirer of the contractor for workplace injuries.

After ABC was dismissed from the action, a jury found the security guard sustained damages of $2,534,613. The jury allocated 72.5% of fault to the landowners and 27.5% of fault to EA.

Injuries incurred during employer-sponsored bowling event compensable – Florida

In Reynolds v. Anixter Power Solutions, the 1st District Court of Appeal overturned the denial of benefits to an employee who was injured while bowling with co-workers during an employer-sponsored event. While the employer argued the event was an excluded “recreational activity”, the court noted that the event took place during regular work hours and had, as one of its purposes, the discussion of business goals for the upcoming year. Although employees could decline the invitation, this was insufficient to prove the event was voluntary, particularly in light of the goal stated by the employer.

Daunting burden of proof for toxic exposure nixes claim – Florida

In City of Titusville v. Taylor, an appellate court overturned the award of benefits to a city employee who had spent several months working to clear a wooded area and was diagnosed with fungal meningitis. Although a specialist presented testimony that the workplace was the “most likely” source of the fungus, the law requires that occupational causation be proven by clear and convincing evidence. In noting that the employee had failed to meet his burden of proof, the appellate court lamented “the Herculean task created by the heightened burden of proof for toxic exposure claims,” but said this was a matter for the legislature, not the courts.

Stuntman’s estate awarded $8.6 million in civil suit – Georgia

A stuntman died in July 2017 while shooting a scene for the television show, The Walking Dead, in Senoia. While AMC Networks argued that the stuntman was an employee of Stalwart Films, the family argued that he was an independent contractor and the jury agreed. Jurors found AMC Networks’ entity, TWD 8, and its production company, Stalwart Films, negligent, but said AMC Networks was not liable.

Exclusive remedy does not bar class-action suit under Biometric Information Privacy Act – Illinois

In Treadwell v. Power Solutions Int’l, an employee’s putative class action against his employer alleged the use of a fingerprint timekeeping system violated the state Biometric Information Privacy Act (“BIPA”). The employee claimed he had been injured by the employer’s interfering with his right to control his biometric data and the employer argued that claims for monetary damages under BIPA are preempted by the exclusive remedy provisions of workers’ comp.

Since the employee had shown that the employer’s actions were intentional, a federal district court found that one of the exclusion provisions of exclusive remedy was met – the injury was not accidental. Further, the court noted that the damages alleged were not the sort contemplated to be compensable under the state’s workers’ comp statute.

Award for amputation insufficient – Indiana

In Senter v. Foremost Fabricators, a three-judge panel of the Court of Appeals unanimously reversed and remanded a Workers Compensation Board decision, finding that an award of $12,880 was insufficient for a worker who had to have her pinkie finger and part of her hand amputated. The court noted that the Board had read the statute too narrowly and that while she was not entitled to an award for the loss of her entire hand, the Board should have used its discretion to provide a partial award for what was amputated on her hand.

Third-party cannot offset for employer’s fault – Minnesota

In Fish v. Ramler Trucking, an employee suffered injuries while helping to load a concrete beam onto a truck being operated by an employee of another company, Ramler Trucking Inc. He received workers’ comp benefits from his employer and filed a common-law negligence claim against Ramler. A jury allocated 5% of the fault to the employee, 75% to his employer and 20% to Ramler.

Ramler argued that its liability should be limited to its 20% fault. The case made its way to the state Supreme Court, which ruled a third-party tortfeasor’s liability to an injured employee could not be reduced based on an employer’s share of the blame. An employer liable to an injured employee under the Workers’ Compensation Act and a third party liable in tort to the employee do not have common liability, whether joint or several.The benefit was limited to a credit in the amount of the workers’ compensation benefits paid to the injured employee by the employer.

High court says employer entitled to credit for amount paid in vacated settlement – Minnesota

In Block v. Exterior Remodelers Inc., an employee received a $40,000 settlement for a back injury and continuation of medical benefits. Several years later, he experienced pain related to the old injury and required further surgery. His petition to vacate the settlement was granted, but there was a question whether the employer was entitled to a credit for the $40,000 already paid.

The Supreme Court noted the settlement was done properly and an award may be set aside later if the WCCA determines that there is cause to vacate the settlement.

Authorized medical treatment still applies to out-of-state care – Nebraska

In Rogers v. Jack’s Supper Club, a worker injured her back and settled her claim, with the employer agreeing to pay for ongoing medical care. Her “Form 50” physician died and she continued treatment with the doctor’s colleague and received reimbursement. Later, when she moved to Florida the company suggested they agree to a pain management specialist, but she had already chosen one and sought reimbursement for the care she received. The company argued it was not responsible for the medical expenses since it had not approved the physician. Further, it presented evidence that she was being treated with an opioid cocktail, although this was not a factor in the legal determination. The worker argued since the designated physician had died and she moved out of state, she was free to choose her doctor.

While the compensation court approved reimbursement, the Supreme Court disagreed. A new Form 50 physician could be selected either with agreement of the employer or by bringing the matter to the attention of the compensation court.

IME testimony barred based on attempt to influence decision – New York

In Matter of Keller v. Cumberland Farms, an appellate court affirmed a decision by the state Board that precluded the admission of a medical report and testimony by an independent medical examiner (IME). The physician did not turn over to the Board a letter he received from the employee’s attorney before the medical examination and an intake form completed before the examination, which the court found to violate the law.

The worker alleged that he contracted bladder and kidney cancer from years of exposure to carcinogens while working as a diesel mechanic for the employer.

Court finds Workers’ Compensation Board’s 8-page brief limitation unreasonable – New York

In Matter of Daniels v. City of Rochester, an appellate court found that the regulation that authorizes the Workers’ Compensation Board to dismiss an application for review when a brief is longer than eight pages without an adequate explanation is unreasonable,

Proximity of termination to injury claim doesn’t mean retaliation – New York

In Matter of Peterec-Tolino v. Five Star Electric Corp., a three-judge panel of the Supreme Court affirmed a Board’s determination that an electrician was fired about one month after an injury claim for legitimate business actions. The employer had been implementing a furlough replacement program that involved laying off approximately 10 percent of its electricians and had emailed his supervisor several months before the injury suggesting he be laid off for sub-standard performance. The employee also acknowledged that prior to his injury, he was told by an employer’s representative that the employer had contacted his union looking for other qualified workers to replace him.

Surveillance nixes continuation of benefits after 18 years – Pennsylvania

In Jones v. Workers Compensation Appeals Board, a maintenance custodian for the Southeastern Pennsylvania Transportation Authority was seriously injured in 2001. The employer attempted to terminate benefits in 2015 but was denied. In 2018, the employer tried again, submitting surveillance showing the employee, a Jehovah’s Witness, pulling a large suitcase and setting up a display of pamphlets, as well as standing on the street corner and gesturing with his arms and hands without restriction, and other activities involving lifting heavy objects.

In light of the surveillance, the workers compensation judge rejected the employee’s physician’s testimony that his condition demanded restrictions of no lifting over 10 to 15 pounds, no overhead work, no constant turning of the neck, no repetitive use of the arms, and no more than four hours of work per day. A three-judge panel of the Commonwealth Court agreed that he had fully recovered from his injuries.

Two conditions must be proved for benefits – Virginia

In Sorour v. Avalon Transp., the Court of Appeals affirmed the Commission’s denial of a limousine driver’s claim for benefits following a mysterious, one-vehicle accident that occurred while the driver was “on the clock.” While the court noted that the driver had proven his injuries occurred in the scope of his employment, he had not proven that his injuries arose out of his employment.

At the time of the accident, the driver was driving in a company vehicle to the company’s office at the request of his manager and he hit a guardrail on the exit ramp. The driver failed to prove how the accident occurred and, therefore, he did not establish the causal connection between his injury and the conditions under which his employer required the work to be performed.

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

OSHA watch

Inspections increase in FY 2019

In FY 2019, which ended September 30, 33,401 inspections were conducted. This is more inspections than in each of the previous 3 years – 32,023 in FY 2018, 32,408 in FY 2017, and 31,948 in FY 2016. The agency also provided a record 1,392,611 workers with training on safety and health requirements through its various education programs.

CIC certifications no longer accepted

Certifications issued by Sanford, Florida-based Crane Institute of America Certification LLC (CIC) for crane operators engaged in construction activities are no longer valid because the CIC is no longer considered a nationally recognized accrediting agency. Employers will not be cited for work performed by crane operators holding CIC-issued certifications obtained before Dec. 2, 2019, if those crane operators acquired the certification with the good faith belief that it met government standards. However, CIC certifications or re-certifications issued on or after Dec. 2, 2019 are not acceptable.

Minor corrections and clarifications to Walking-Working Surfaces regulations published

notice published in the Federal Register corrects minor errors and clarifies requirements in the Walking-Working Surfaces and Personal Protective Equipment standards.

Update to NEP on amputation hazards in manufacturing

Updated guidance was issued for Compliance Safety and Health Officers conducting inspections in manufacturing facilities that could potentially have incidents involving amputations. There is a new method for targeting industries that involves using amputation reports submitted by employers as well as Bureau of Labor Statistics (BLS) incident and amputation rate data. The 75 NAICS codes covered under the National Emphasis Program (NEP) can be found in Appendix B of the compliance directive.

There will be a 90-day outreach program offered to employees.

Recent fines and awards

Florida

  • Garabar Inc., based in Lake Worth, was cited for exposing employees to fall and eye hazards at a worksite in Royal Palm Beach. The roofing contractor faces $64,974 in penalties. The inspection was conducted under the REP for Falls in Construction.
  • Action Roofing Services Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at Palm Beach Gardens and Port Saint Lucie worksites. Inspected under the REP for Falls in Construction, the roofing contractor faces $146,280 in penalties.

Georgia

  • Kittrich Corp., operating as Avenger Products LLC, was cited for exposing employees to amputation, fire, and electrical hazards at the company’s Gainesville facility. The pesticide and agricultural chemical manufacturer faces $90,801 in penalties for lockout/tagout violations, improper storage of chemicals, failure to update and give employees access to safety data sheets, and more.
  • Wright Metal Products Crates LLC, based in South Bend, Indiana, and operating as WMP Crates was cited for exposing employees to amputation, chemical and other safety hazards at a worksite in Lavonia. Inspected under the NEP on Amputations and the REP for Powered Industrial Trucks, the company faces $195,034 in penalties.
  • Mavis Southeast LLC, operating as Mavis Discount Tire, was cited for exposing employees to fall, struck-by and other hazards at the company’s distribution facility in Buford and faces $191,895 in penalties.

Massachusetts

  • United Parcel Service Inc. was cited for exposing employees to multiple hazards including exit access, fire, and electrical at the shipping and delivery facility in Vineyard Haven. The company faces $431,517 in penalties for four repeated and seven serious safety violations.

Missouri

  • Martin Davila, operating as Davila Construction, was cited for exposing employees to fall hazards at job sites in Wentzville, Grover, and St. Louis. The residential roofing company faces $205,098 in proposed penalties.

New York

  • Frazer & Jones Company Inc. was cited for 33 workplace health and safety violations at the manufacturer’s Solvay iron foundry. The company faces $460,316 in penalties for multiple violations, including exposing employees to crystalline silica, iron oxide, combustible dust, falls, struck-by and caught-between hazards, unsafe work floors and walking surfaces, inadequate respiratory protection and more.
  • A whistleblower investigation found that Bouchard Transportation Company Inc., B. No. 272 Corp, a petroleum barge company based in Melville, and its officers violated the whistleblower protection provisions of the Seaman’s Protection Act (SPA) when it retaliated against a seaman who cooperated with U.S. Coast Guard (USCG).

Pennsylvania

  • Dana Railcare, based in Wilmington, Delaware, was cited for confined space hazards after an employee asphyxiated while servicing a rail car containing crude oil sludge in Pittston. The railcar service provider faces $551,226 in proposed penalties and was placed in the Severe Violator Enforcement Program.

Wisconsin

  • An administrative law judge of the OSHRC affirmed a citation of $2,800 against Guaranteed Home Improvements LLC after a worker was seriously injured in a ladder fall for using the ladder in icy and slippery conditions and failing to secure it to prevent accidental displacement. There was, however, an issue of fact regarding the side rails of the ladder, and the second citation of $2,884 was vacated.

For additional information.

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

HR Tip: Landmark rulings overturn three NLRB major decisions

HR Tips

Last month, the National Labor Relations Board (NLRB) overruled three major decisions from the Obama administration:

Valley Hospital Medical Center – December 16, 2019

Under this ruling employers no longer must continue deducting union dues after the collective bargaining agreement that established the checkoff arrangement expired.

Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino – December 17, 2019

With this ruling, the NLRB took the position that work e-mail may be restricted to business purposes in most instances. Companies, both unionized and nonunionized, can ban employees from using work e-mail for nonbusiness purposes, including soliciting for union-related issues. The Board noted an exception. In rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.

However, the ruling recognizes that it’s often impractical for employers to impose a blanket restriction, and many allow access with reasonable use restrictions. If such access is allowed, the policy cannot be discriminately applied to union-related issues.

Apogee Retail LLC d/b/a Unique Thrift Store – December 17, 2019

This ruling addressed the confidentiality of investigations. The decision was two-pronged. For on-going investigations, confidentiality rules are lawful and can apply for the duration of the investigation. Once the investigation is closed, confidentiality rules are subject to greater scrutiny and require a legitimate business purpose.

For more information.

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

 

Watch out for 20 costly workers’ comp mistakes in 2020: Part Two (11-20)

Part 2

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not updating job descriptionsJob descriptions are critical in the recruitment and hiring process, promote greater accountability, enable medical providers and employers to work together in recovery at work, and provide protection in litigation complaints under a host of laws, including the ADA and FMLA. Don’t underestimate the importance of reviewing job descriptions as an integral part of work processes.
  2. Not adapting training to the generational span in the workforceToday, organizations face the challenge of motivating, training, and engaging individuals that span from Gen Z (born after 1997) to Baby Boomers (born after 1945). Companies must recognize the different skill gaps, communication styles, and expectations and find creative ways to reach all generations. While much is written about adapting the workplace to the declining physical abilities of an aging workforce, Gen Z, which is expected to represent 20% of the workforce in 2020, has only recently gotten attention.

    Gen Z grew up immersed in technology and constant interaction, multitasks across five screens on average, freely expresses themselves online, is visually oriented, and has a very short attention span. Many do not have hands-on industrial and mechanical experience, making concepts such as lock-out tagout hard to grasp. Expect the trend of personalized and microlearning to continue in 2020.

  3. Failing to foster mental health resilienceMuch of the legislative activity for presumptive laws is focused on public safety personnel, but there is movement to extend it to other employees such as nurses, teachers, private company EMTs or others on the front lines in crises. There has also been an uptick in workers’ compensation claims for post-traumatic stress disorder following shootings and other violent incidents along with claims for extreme stress. These are complicated and the state laws for coverage vary greatly, although most are limited. Even when the injuries are not deemed compensable, mental health issues can adversely affect recovery.

    These factors, coupled with an increase in workplace suicides, mean that employers cannot ignore the mental health of their employees.

  4. Having cybersecurity myopiaWhile most people think of data and information when they think of cybersecurity, it also can involve safety risks. As operations become more digital and connectivity increases, IoT networks become more vulnerable. Cyber invasions and infections can be used to create havoc or cripple essential equipment for financial gain. Hackers may be insiders or outsiders or the issue may be worker errors.
  5. Overlooking heat stress hazardsWith rising ambient temperatures, 18 of the last 19 years have been the hottest on record according to NASA. The problem is not limited to the Sun Belt states. OSHA recently fined a utility-pole service provider in Nebraska for a heat-related death. Heat stress poses a serious health hazard to workers and also increases safety risks.
  6. Not evaluating telemedicineThe use of telemedicine has been slow to take hold in workers’ comp, but some employers have used it successfully to speed access to care, improve patient compliance, and reduce costs. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow up care.
  7. Having a claims denial mindsetDenied claims often lead to higher medical costs and litigation, as studies show about 67% of initial denials are approved. When the claim is legitimate and the claim is denied, it leads to bad feelings and low morale. If you suspect fraud, strongly present the case to the adjuster. But denying claims to lower costs is going to backfire.
  8. Hiring undocumented workersThe national debate on immigration has left undocumented workers in the precarious position of deciding whether to pursue medical care and benefits at the risk of arrest and deportation. While employing undocumented workers is illegal, they represent a good percentage of the workforce in construction, agriculture, and hospitality. In some cases, they are knowingly hired and in others, they have presented false documentation. The statutes vary by state, but many states cover workers compensation for undocumented workers.

    It makes good business sense to validate legal status through E-Verify at the start of employment.

  9. Not staying abreast of legislative and regulatory changesIn addition to the items identified above, drug formularies, medical treatment guidelines, opioids, and Medicare Set Asides regulations will significantly impact workers’ comp. Challenges to the constitutionality of the ACA and single-payer healthcare also bear watching.
  10. Not planning for the changing nature of workThe year 2020 begins a new decade destined to see humans and machines working as integrated teams, with the Fourth Industrial revolution bringing technologies that blur the lines between the physical, digital and biological spheres across all sectors. Retail had more injuries than manufacturing in 2018. Hazards from employee interactions with motorized equipment like autonomous forklifts and robots, high-stress holiday hours, slips and falls, and overexertion have all contributed to the increase.

    Companies are struggling to implement safety protocols that match the pace of automation and protect employee privacy. Drones, wearables, and apps continue to gain traction in workplace safety, but cost, privacy, understanding the proper use and how to analyze the data remain barriers, particularly for smaller employers.

    Further, this tectonic shift has implications for training and education as workers need new skills to adapt to their changing roles and responsibilities. Lifelong learning will become a primary driver for employee success and employees will seek employers that provide such opportunities. It’s got to be all about positioning for the future.

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

Watch out for 20 costly workers’ comp mistakes in 2020: Part One (1 – 10)

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not taking a holistic view of injured employeesRegardless of the size or type of claim, there’s been an overarching shift in treating injured employees as consumers, rather than claimants. This means not only advocating for them and giving them support and a voice in handling claims, but also recognizing the social and economic factors that affect recovery, and the psychology of pain. Taking the time to understand the needs of the individual employee both improves claim outcomes and bolsters employee morale.
  2. Relaxing claims monitoringWhen claims are down, it’s easy to divert attention elsewhere and leave the claim to the adjuster. Yet, three to five percent of claims drive 50 to 60 percent of the cost and it doesn’t take a catastrophic injury to create a complex, costly claim. Delayed recovery, which can be caused by co-morbidities, psychological or family problems, employment issues, attorney involvement, or prescription abuse increases the duration and cost of a claim. Early identification of these potential high-cost claims reduces costs.

    Also, when legacy claims linger on autopilot, by default, the employer commits to costly ongoing medical care that often involves opioids. While the industry has done a good job of controlling opioid prescribing for new claims, regular intervention is necessary for older claims to accelerate settlements and improve pain management.

  3. Not recognizing marijuana is here to stayThe continuing trend of states legalizing marijuana for both medical and recreational use in spite of the federal ban has made it one of the top challenges in maintaining a safe workplace. Staying abreast of evolving laws and cases, as well as a clearly defined policy on how marijuana will be addressed in the workplace, are necessary to ensure the safety of all workers and decrease the likelihood of adverse employment actions. Shifting cultural acceptance of marijuana as well as its legalization in many states means that employers need to thoughtfully evaluate their drug testing policies.

    Case law in 2019 moved toward protecting the medical use of marijuana in the workplace. Sixteen states provide workplace protections for legalized medical marijuana use either through their statutes or through case law, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia, and Massachusetts.

    Experts postulate that there will be more law suits from employees or job applicants who were terminated or not hired because they failed a drug test and take medical marijuana. Further, the question of marijuana as treatment in workers’ comp claims will continue to be a hot issue in 2020.

  4. Failing to understand what’s happening at OSHAWhile many observers expected a decline in the number of OSHA workplace inspections, they increased to 33,401 in FY2019, higher than in any year since 2015. There’s been a record number of $100,000+ citations, higher penalties, more willful and repeat citations, as well as worker safety criminal prosecutions.

    On October 1, OSHA implemented major changes to how it prioritizes inspections and other compliance activities. Factors now considered in inspection weighting include:

    • Agency enforcement priorities
    • Impact of inspections on improving workplace safety
    • Hazards inspected and abated
    • Site-Specific Targeting (SST) program objective

    Further, the agency announced that it is moving away from its long focus on “OSHA recordables” as a way to measure the safety of a workforce and will focus its enforcement efforts on leading indicators, which are proactive.

  5. Failing to properly classify employeesWhile the contractor vs. employee status debate has existed for many years, it ramped up in 2019 and is expected to be a hot issue in 2020. Some estimate that over 30% of the workforce is part of the gig economy. With the passage of AB5 in California and a growing number of court cases, expect to see more legislation and court cases.
  6. Developing a false sense of security from distracted driving policiesOver the past five years, motor vehicle accident claims accounted for 28% of workers’ comp claims over $500,000. They now account for more worker fatalities than any other cause and savvy employers know they have to go beyond state laws to develop best practices. Employers are being held liable for employee crashes, even when employees use hand-free devices. The National Safety Council considers hands-free devices to be just as distracting as hand-held devices while driving.

    A distracted driving policy is only the beginning. It must be implemented, updated, and consequences for non-compliance enforced. There are growing options for discovering violations – locking devices, GPS monitoring, in-vehicle cameras, and so on.

  7. Being unprepared for workplace violenceWith more high-profile workplace shootings, fear of workplace violence is on the rise. According to the Society for Human Resource Management (SHRM), one in seven workers do not feel safe at work. Unfortunately, incidents and attitudes that lead to workplace violence are a reality at all workplaces. Workers feel safer and more valued when investment is made in security and preparation.
  8. Not reassessing your PPEWhen NASA was forced to cancel the first-ever spacewalk by two women because it did not have two appropriate space suits, social media erupted with stories from women in all industries about ill-fitting or no PPE. Through continued advancement and technological changes, “smart” PPE with sensors that monitor, collect, and record biometric, location, and movement data is on the rise. In addition, employees’ personal preferences and increased comfort have driven new innovations.

    Providing the right PPE is another way companies can recruit and retain more talent.

  9. Ignoring changes in workplace ergonomicsMusculoskeletal disorders (MSDs) develop over time, but are highly preventable at a reasonable cost. Yet, they account for close to one-third of all occupational injuries and illnesses and have a median of nine days away from work.

    New technologies and devices, an aging workforce, temporary workers, more employees working remotely, the dramatic shift to e-commerce, coupled with massive changes in warehousing and office designs have introduced new ergonomic challenges. Moreover, employees want to work in a comfortable environment and embrace employers that take a holistic approach to ergonomics. A 2019 study by Future Workplace and View found that air quality and natural light were most important to employees, topping fitness facilities.

    Addressing new potential ergonomic risks now will prevent costly injuries in the future, improve productivity, and retain talent.

  10. Failing to stay in touch with your medical provider networkPerhaps you’ve had a few good years with no lost-time injuries. No real need to stay in touch with your medical network. But networks and providers change as do work processes. An ongoing face-to-face relationship ensures your workers get appropriate and priority treatment as well as leads to better outcomes for injured employees.

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

Pennsylvania – First state ruling on termination for medical marijuana

In Pamela Palmiter v. Commonwealth Health Systems Inc. et al, the Court of Common Pleas of Lackawanna County in Scranton held that a worker terminated for her medical marijuana use can pursue litigation against her former employer under the state Medical Marijuana Act’s anti-discrimination provisions. The employee was a medical assistant, who was prescribed marijuana by her physician for chronic pain, migraines, and persistent fatigue.

When her original employer was taken over by Franklin, Tennessee-based Commonwealth Health, she failed a drug test and was advised she could not continue employment.

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