Things you should know

NCCI’s 2020 Regulatory and Legislative Trends Report

In addition to a comprehensive review of the activity in more than 20 states to address workers’ compensation presumptions of compensability in response to the COVID-19 pandemic, NCCI’s 2020 Regulatory and Legislative Trends Report provides an overview of actions by state legislatures, governors, and regulators (through July 31, 2020) to address workers’ compensation insurance.

Key subjects include:

  • Workplace-related mental injuries
  • Legalization of marijuana
  • Reimbursement for medical marijuana
  • Single-payer health insurance
  • Employee vs. independent contractor determinations
  • Court cases impacting workers’ compensation
  • Law-only filings in 2020
  • Average approved changes in loss costs and rates

Mega claims (over $3M) on the rise

According to a new study by 10 rating agencies of workers’ compensation claims from 2001 through 2017, during the Great Recession the rate of mega claims declined sharply, with the fall in construction employment, but they have consistently increased since 2013.

While the construction sector makes up less than 20 percent of all workers’ compensation claims, it accounts for over 40 percent of mega claims. Motor vehicle accidents give rise to 20 percent of mega claims and 30 percent of claims with more than $10 million in incurred losses, but represent less than 5 percent of all indemnity claim.

Mega claims comprise a relatively small percentage (0.04%) of all indemnity claims in workers’ compensation, but add $1 billion to $2 billion in losses every year. The largest share are in California and New York.

The good news is that insurers are identifying the potential for such claims much quicker than in the past with analytical models. However, it still takes time to breach the $3 million threshold. Less than one-half of mega claims reach the $3 million threshold by 18 months from policy inception, and less than 90% reach that threshold by 126 months from policy inception.

Labor Department issues guidance on tracking employees’ teleworking hours

Although the new Field Assistance Bulletin addresses employers’ obligations under the Fair Labor Standards Act (FLSA) for remote work that has skyrocketed during COVID-19, it applies to all other telework or remote work arrangements.

NLRB upholds company’s moonlighting ban

In Nicholson Terminal & Dock Co., the National Labor Relations Board (NLRB) upheld the company’s “moonlighting” policy that prohibited employees from having another job that could be inconsistent with the company’s interest, have a detrimental impact on the Company’s image with customers or the public, and could require devoting such time and effort that the employee’s work would be adversely affected. It also noted that employees are expected to devote their primary work efforts to the company’s business.

New safety resource for construction industry from ASSP

State News

The American Society of Safety Professionals (ASSP) has launched a new library of construction safety resources.

California

  • The Workers Compensation Insurance Rating Bureau’s governing committee voted to recommend a 2.6% increase in pure premium advisory rates in the state over last year. Had it not been for the expected impact of COVID-19, there would have been a recommended a rate decrease for 2021 of 1.3%. If approved, it will be the first increase since Nov.2014.
  • The Workers’ Compensation Institute released an online application to support interactive analyses and comparisons of COVID-19 and non-COVID-19 claims.
  • The Division of Workers’ Compensation (DWC) has posted an order adopting regulations to update the evidence-based treatment guidelines of the Medical Treatment Utilization Schedule (MTUS).

Minnesota

  • The Department of Labor and Industry has pushed back the launch of a new electronic claims management system, known as Work Comp Campus, to Nov. 2 to give stakeholders more time to prepare.
  • The Department of Labor and Industry has updated the state’s medical fee schedule conversion factors to keep up with inflation.

New York

  • The Workers’ Compensation Board adopted a new rule that applies to reimbursement codes and values for COVID-19 testing when a workers’ comp claim has been filed or when testing is part of a pre-operative protocol in keeping with health department guideline. The Board also published an emergency rule, allowing telemedicine technology to be used in emergency settings.
  • The Board reminded stakeholders that the switch to a more robust claims data reporting standard, EFI 3.1, is coming next spring, and testing will begin in November. Webinars on the electronic submission system are being held on the third Tuesday of each month.

North Carolina

  • The Industrial Commission’s Rules Review Committee approved technical corrections to a temporary mediation rule. The rule no longer requires parties to attend mediations in person but allows for the use of technology to facilitate a remote meeting.
  • Registration for the Workers’ Compensation Educational Conference, to be held online Oct. 13-16, is now open.

Pennsylvania

Tennessee

  • Registration for the Bureau of Workers’ Compensation Educational Conference to be held virtually Oct. 26 – 30 is open.

Virginia

  • The Corporation Commission will hold a public hearing in October on NCCI’s proposal to cut average loss costs by more than 20% for the voluntary market.

OSHA watch

COVID-19

Federal

For more COVID-19 information

Cal/OSHA

  • Temporary changes to guidance that health care workers be provided certified respirators in light of N95 mask shortages. Employees are permitted to use reusable respirators certified by the National Institute for Occupational Safety and Health instead of disposable filtering facepiece respirators and to wear their own respirator if it complies with Cal/OSHA requirements.

Michigan OSHA

  • The Department of Labor and Economic Opportunity has launched a state emphasis program aimed at ensuring health care employers are providing workers who care for COVID-19 patients with the personal protective equipment they need.

Oregon OSHA

  • The Department of Consumer and Business Services is proposing a temporary rule that would combat the spread of coronavirus in all workplaces by requiring employers to implement risk-reducing measures.

OIG report on whistleblower complaints

In response to the rising number of whistleblower cases since the pandemic outbreak, the U.S. Office of Inspector General (OIG) conducted an audit and found that there are too few investigators to handle the volume of complaints, creating long delays. OIG found that in the first quarter of the year, it took an average of 279 days for OSHA to close an investigation, which is nearly double the amount of time the agency took to close cases in 2010. The report recommended that OSHA develop a caseload management plan to evenly distribute whistleblower complaints among investigators, hire whistleblower investigators to fill the current vacancies, and consider extending its current pilot program on expediting whistleblower screenings to all regions.

Final beryllium standard for construction and shipyards published

The final rule amends the following paragraphs in the beryllium standards for construction and shipyards: Definitions, Methods of Compliance, Respiratory Protection, Personal Protective Clothing and Equipment, Housekeeping, Hazard Communication, Medical Surveillance, and Recordkeeping. The Hygiene Areas and Practices paragraph from the final standards was removed because existing standards for sanitation provide the necessary protection. The effective date of the revisions is September 30.

Reminder: resources available on disaster response

Hurricanes

Tornedos

Floods

Cal-OSHA reminds employers to protect workers from wildfire smoke

Employers near wildfires need to comply with the emergency wildfire smoke regulation, which took effect in July 2019 and has been extended to early 2021.

Recent fines and awards

California

  • Investigated because of an accident, Monterey Mushrooms, Inc. of Royal Oaks initially faces $69,635 in penalties.
  • Food manufacturer Overhill Farms Inc. and its temporary employment agency Jobsource North America Inc. were fined more than $400,000 in combined penalties for failing to take steps to protect workers from coronavirus infection at two frozen food plants in Vernon.

    Eleven other employers have also been cited for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. Proposed penalties range from $2,025 to $51,190.

Florida

  • U.S. Corrections LLC, headquartered in Melbourne, was ordered to reinstate an employee for reporting personal and commercial motor vehicle safety concerns plus pay more than $70,000 in back wages, $30,000 in punitive damages, $7,341 in compensatory damages, $30,000 in emotional distress damages and reasonable attorney’s fees under the whistleblower provisions of the Surface Transportation Assistance Act.
  • T S & C Construction Services Of Florida, LLC, based in Orlando, faces $75,567 in fines for failure to protect employees from cave-ins in excavations.
  • Roofing Pioneers of Parrish faces $47,229 in penalties for a repeat violation of failure to provide fall protection.

Georgia

  • Harris Tire Company of Atlanta faces $51,274 in penalties following an inspection initiated by a complaint.

Illinois

  • DS Containers, Inc. of West Chicago faces $42,411 in penalties relating to hazardous energy control.
  • Chicago Aerosol, LLC of Coal City faces $67,470 in penalties for process safety management.
  • Environmental Remediation And Recovery, Inc. of Mounds faces $156,065 in penalties for 13 serious violations and two willful violations, including permit-required confined spaces violation.

Massachusetts

  • Bob’s Tire Company of New Bedford was cited for one repeat and two serious health violations with proposed penalties of $58,178. The company was the subject of two inspections in response to complaints.
  • Dollar General in Dracut was cited for five willful and one serious violation and initial penalties are $628,411 for willful violations related to exits, fire extinguishers, and handling of materials.

Missouri

  • Schrimpf Landscaping, a subcontractor on a construction site in Jefferson City, was cited for two serious violations after a retaining wall collapsed killing a worker. The company faces $18,892 in fines for failing to protect employees from struck-by and crushed-by hazards and to properly train employees.
  • Dyno Noble Inc of Carthage faces penalties of $32,890 related to fall protection.

North Carolina

  • KMS Roofing/Sheet Metal, L.L.C. of Greensboro faces $105,000 in penalties for two willful and one serious violation related to fall protection, training, and ladders.

Tennessee

  • Hankook Tire Manufacturing Tennessee, LP of Clarksville faces $75,750 following an inspection initiated by a complaint.

Wisconsin

  • Lincoln Industries Of Wisconsin, LLC of New Berlin faces $40,482 in penalties related to lockout/tagout and hazard communications.

For additional information.

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

HR Tip: New EEOC guidance related to COVID-19 and family members

In recent guidance (Question D.13), the EEOC said that the Americans with Disabilities Act (ADA) does not require employers to accommodate workers who want to avoid exposing family members who are at higher risk of severe illness from COVID-19.

“The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.”

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

OSHA PPE requirements and COVID-19

COVID-19 has not changed an employer’s responsibilities nor the primary tenets of OSHA’s PPE Standard. Employers must begin by conducting a hazard assessment in accordance with the PPE standard (29 CFR 1910.132) to determine the PPE requirements for their unique work site. PPE should be treated as the “last line of defense” in the Hierarchy of Controls. Since elimination or replacing the hazard is unfeasible, the first line of defense is engineering controls. These are mechanical methods of separating an employee from the exposure to COVID-19, such as improved air filtration systems, increasing ventilation rates, or installing physical barriers, such as clear plastic sneeze guards.

The second line of defense is administrative controls, which include focusing on changing human behavior to reduce exposure to a hazard. Examples include asking sick employees to stay home, minimizing contact with virtual meetings, telework, making it easier for workers to stay six feet apart from each other, staggered shifts, and training workers on COVID-19 risk factors and protective behaviors. It also includes providing the resources for safe work practices such as face coverings, no-touch trash cans, hand soap, alcohol-based hand sanitizers, disinfectants, and disposable towels for cleaning work surfaces.

After considering engineering and administrative controls as well as safe work practices, employers must determine if PPE (such as gloves, gowns, surgical masks, and face shields) is necessary for employees to work safely.

In its recent Guidance on Returning to Work, OSHA reminds employers to reduce the need for PPE in light of potential equipment shortages. “If PPE is necessary to protect workers from exposure to SARS-CoV-2 during particular work tasks when other controls are insufficient or infeasible, or in the process of being implemented, employers should either consider delaying those work tasks until the risk of SARS-CoV-2 exposure subsides or utilize alternative means to accomplish business needs and provide goods and services to customers. If PPE is needed, but not available, and employers cannot identify alternative means to accomplish business needs safely, the work tasks must be discontinued.”

Special considerations related to COVID-19:

  • If temperature screening of employees and/or visitors is part of your safety program, be sure the temperature taker is trained and protected from exposure with the proper PPE.
  • Cloth face coverings are not PPE. However, they are intended to reduce the spread of potentially infectious respiratory droplets from the wearer to others. Since they are not considered PPE the employer doesn’t have to pay for them, however, it is a smart move and reassuring message to employees. OSHA has taken the position that the General Duty Clause, Section 5(a)(1), may require employers to provide such masks as they are a feasible means of abatement in a control plan. Moreover, some state and/or local governments are not only requiring employees to wear face coverings at work but are also requiring employers to provide the cloth masks.

    For more information, review OSHA’s recent Q & A on face coverings.

  • When employers require employees to wear masks, there should be specific written regulations about when they must be worn, how to care for them, what medical or other protected reasons are valid exceptions, and what are the consequences if employees decline to wear them and do not meet the exception criteria. Training also is a good idea so employees can understand they do not substitute for social distancing or other administrative controls.
  • Employers must also be aware of situations where mask wearing can make it harder to breathe and do not in themselves create a hazard. For example, the California Department of Industrial Relations, in issuing its annual summer notice to employers on heat illness prevention noted, “Employers should be aware that wearing face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating. Workers should have face coverings at all times, but they should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained.”
  • N95 masks are considered respirators and if required in the workplace are subject to significant regulatory obligations under 1910.14. However, if an employee brings their own N95 or similar filtering facemask, they should be allowed to voluntarily wear them. The only regulatory burden is to provide the employee Appendix D of 1910.134. It is recommended that other types of respirators such as half-and-full-face, tight-fitting respirators, and PAPR’s be prohibited.
  • In March and April, OSHA issued temporary enforcement memoranda on relaxing respiratory protection enforcement.
  • Some employers have opted to make gloves available to workers, particularly those in work settings where employees are frequently touching the same surfaces or objects. Gloves should cover the entire hand, up to the wrist and employees need to be instructed on the proper way to remove clothes to ensure that it does not cause contamination.

What type of PPE is best for your workplace?

OSHA’s Guidance on Preparing Workplaces for COVID-19 identifies PPE requirements based on four risk categories of worker exposure to COVID-19. Workers in the very high-risk exposure level, such as healthcare, laboratory, and morgue workers are likely to need to wear gloves, a gown, a face shield or goggles and either a face mask or a respirator. Workers who interact with known or suspected COVID-19 patients should wear a respirator. The same PPE use is recommended for workers in the high exposure risk category, including healthcare delivery and support staff, medical transport workers, and mortuary worker.

The moderate exposure risk category includes those that require frequent and/or close contact with the general public in areas with community transmission of COVID-19, such as teachers, retail outlets, restaurants, and other public businesses. OSHA recommends that workers in this category wear some combination of gloves, a mask, gown and/or a face shield or goggles based on the level of exposure. For those in the low exposure risk category, such as teleworkers, OSHA does not recommend PPE.

OSHA has also published guidance for many specific industries that offers recommendations for engineering and administrative controls as well as PPE. The PPE Safety and Health Topics page provides additional information about PPE selection, provision, use, and other related topics.

Takeaway:

Employers can help protect themselves from OSHA fines and enhance their return-to-work protocols by:

  • Updating their Injury and Illness Prevention Program to align with Fed and State OSHA guidance and any specific industry guidance.
  • Implementing the generally applicable infection prevention control measures identified above.
  • Maintaining any records on safety and health measures implemented.
  • Documenting all training provided to employees.
  • Recognize that new guidance is being issued at the federal and state level almost daily and stay up to date.

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

HR Tip: EEOC expands COVID-19 workplace guidance, delays EEO-1 deadline

Employers cannot exclude employees from working simply because they have an underlying medical condition that the Centers for Disease Control says may pose a higher risk of severe illness if they contract COVID-19. In early May, the Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act.

The newly added questions and answers, G.3, G.4., and G.5., provide information about the accommodation of employees with underlying medical conditions. The answer to G.4. was revised after the initial posting to clarify that the ADA does not allow exclusion of employees simply because they have an underlying medical condition that the CDC says might pose a higher risk of severe illness if the individual contracts COVID-19.

Employers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation. The guidance notes that the “direct threat” requirement is a high standard. It also includes information on what an employee needs to do to request a reasonable accommodation and examples of accommodation. A worker must inform the employer that a change is needed for a reason related to a medical condition, which may be requested in conversation or writing. The employer may then ask questions or seek medical documentation.

EEO-1 filing deadline delayed

The Coronavirus pandemic has delayed the deadline for employers to file both their 2019 and 2020 EEO-1 Component 1 data to March 2021.

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

Ten costly mistakes when reopening and operating a business during COVID-19

These challenging times are a stress test for all companies. Survival mode is not sufficient. What’s needed is an ability to lead employees through the crisis, absorb and respond to uncertainty, agility to modify the operating model quickly, and creativity to improve the experience of customers. The Internet offers an overabundance of information – google “preparing your business to reopen after COVID-19” and there are 1,780,000,000 hits. There’s no argument – it’s a daunting task. Here are ten costly mistakes to avoid:

  1. Fail to have a written, site-specific COVID-19 Exposure Control and Response Plan

    Many states and localities require businesses to develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan and both the CDC and OSHA recommend adopting one. Dustin Boss, a Certified Risk Architect and Master WorkComp Advisor with Ottawa Kent Insurance, notes that any business that operates without an Exposure Control Plan will be exposed to a number of legal or business risks. These include OSHA citations, being shut down by state or local health departments, becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors, and/or guests. Lawyers have already started filing wrongful death suits, including high profile cases against Tyson and Walmart.

    Moreover, there is significant reputation exposure. Recently, a worker on the production line of American Fork (Utah-based Built Brands LLC), who contracted the virus along with her disabled daughter and roommate filed suit against her employer, charging she was threatened with termination when she complained about the company’s safety procedures. The case has received national attention.

  2. Fail to follow appropriate guidance

    While most business owners are responsible for making their plans to keep employees, customers, and vendors safe when reopening and operating their establishments, there are critical guidelines to incorporate. The CDC has issued detailed guidance on reopening businesses, health care facilities and providers, schools, transit, and other industries. This guidance also provides information regarding testing and data to assist with exposure and risk concerns for those industries. Joint guidance by the CDC and the EPA to clean and disinfect surfaces is available here.

    OSHA has provided general guidance for businesses as well as industry-specific guidance, which are offered in both English and Spanish. Its most recent guidance focuses on strategies to implement social distancing in the workplace. Spanish version.

    In addition, most states have provided specific guidelines that must be incorporated into the exposure plan. The best resource is the state’s dedicated webpages for COVID-19. Recognizing that each state has its own guidance, the U.S. Chamber of Commerce established the Essential Critical Infrastructure Workplace Tracker. It provides a state-by-state glance of stay-at-home orders with links to each order, start and current end dates, and other details about each state’s guidance.

    Beyond the federal and state resources, stick with sources you know you can trust such as your trusted advisors and industry and trade organizations. Professional organizations such as the National Safety Council (NSC) and the American Industrial Hygiene Association (AIHA) offer industry-specific guidance. The North America’s Building Trades Unions and CPWR, The Center for Construction Research and Training have developed national guidance on infectious disease exposure control practices for construction sites.

    Keep an open mind, constantly evaluate, and adjust your plan as operations evolve.

  3. Fail to incorporate the full range of operations in your plan, including remote workers

    Even when the plant or office has been reconfigured to conform to physical-distancing protocols, there’s a need to figure out adaptations for bathrooms, breakrooms, entrances and exits, hallways, elevators, and any other common areas. Determine how visitors, whether customers, vendors, or delivery people, will be managed. If your workforce relies heavily on public transport, you may want to consider other options such as ride-sharing subsidies or more flexible hours to avoid rush hour.

    Stay-at-home orders were issued at such speed that employers had no time for home assessments and ergonomic training. Training and investment in proper desks or chairs for those workers who will continue to work remotely for an extended period should be part of the plan. To the extent that an employer has not created or revisited their telework policy, now is the time to do so.

  4. Fail to properly communicate the plan to employees and customers

    In the early stages of the outbreak, Dr. Fauci said, “… if it looks like you’re overreacting, you’re probably doing the right thing.” If it feels like you are overcommunicating, you are probably doing the right thing, too. The fear of the virus, coupled with the fear of losing a job, is unprecedented. Tell your employees and customers early and often what you are doing to keep them safe. If you have a phased return to work and some employees are furloughed, be sure to communicate with all of them. Keep an open dialogue with employees and be transparent. Do they feel safe?

    Be specific about what you are expecting of the workers. If face coverings are required, is the company going to provide them, when they have to be worn, how they can be cleaned, can they wear a bandana, and so on. What are the consequences if they don’t comply? Identify their responsibilities to help with prevention efforts while at work by following company instituted housekeeping, social distancing, and other best practices at the workplace.

    Of course, communication and training must adhere to social distancing protocols or be safely automated. Studying “essential businesses” that stayed open during the pandemic, McKinsey researchers found that online training and education modules to familiarize employees with the new safety and hygiene protocols before they return to work played a significant role in instilling new habits.

    Ongoing reminders, whether signage, texts, or announcements to sanitize workstations, wash hands, and maintain social distance help to reinforce positive behavior as well as build employee confidence in their safety. Also, don’t assume that employees know what to do in the event of exposure or diagnosis; constant reminders are important.

  5. Fail to properly train managers and supervisors

    Managers and supervisors are the linchpins to successfully reopen and maintain business continuity. Educate and involve them in the development of new protocols before reopening. Be realistic about what the changed working conditions mean for production and discuss expectations. Not only do the managers have to adapt to changed working conditions, but they have to understand the fundamentals of assessing the risk, recognizing the hazard of COVID-19, how to handle a suspected case and even rumors of a suspected exposure. Moreover, they will be working with many employees whose mental and emotional health has been upended by the virus. They’ll need to understand at the most granular level employee sentiment about COVID-19 and their comfort level with the company’s response.

  6. Assume your workers are ready to return to workA nationwide survey of 1000 workers in late April by Eagle Hill Consulting LLC found that 54% were worried about exposure to COVID-19 at their job and 58% said the availability of protective protections like masks, gloves, and hand sanitizer would make them feel safer. Fifty-five percent say mandating employees with symptoms stay home and 53% said making COVID-19 tests available would also lessen concerns, but only 43% support employers testing for symptoms. Seventeen percent worried the test results would affect their employment.

    The good news is that most employees (71%) say their employers will be prepared to safely bring employees back to the workplace. However, there will be some workers who may refuse to work or may upset others if forced to return. Others may want to continue to work remotely. Be prepared about how you will treat these workers in a fair and non-discriminatory way and document your response.

  7. Fail to recognize the toll on physical and mental health

    For many people, this has been the most distressing time in their lives. They’re concerned about their family, economic hardship, and health. Those with physically demanding jobs may not be in shape. Some have had difficulty sleeping or turned to substance abuse and others have been severely stressed. The impact on mental health is real. Knowing that you understand what they are going through and offering resources to those in need can help to ease anxiety.

  8. Not understanding the privacy and logistic issues of conducting tests, taking temperatures, and contact apps

    Guidance from the EEOC permits certain exceptions to the traditional rules under the ADA, but it doesn’t mean that privacy rights can be ignored. Further, the guidance does not address which tests are appropriate, who should conduct the tests, how tests should be administered, what should be done to protect workers’ privacy, the reliability or frequency of testing, how the tests will be paid for and whether employees should be paid for the time they wait in line to have their temperatures taken.

    It’s important to realize that under OSHA temperatures are medical records, which must be maintained for 30 years. Some legal experts recommend minimizing the amount of data you collect, such as recording only those that exceed the COVID-19 threshold of 100.4 degrees and are sent home. Under the ADA, the information that is recorded should be treated as a confidential medical document and not placed in an employee’s personnel file.

    Employers should also review the CDC guidance on testing and any relevant state guidance.

    Similarly, companies must also decide on whether they use contact apps to track and identify people who might have been exposed when someone tests positive. To date, the EEOC has not issued guidance, but employer-based contact tracing implicates a variety of laws, including workplace laws like the Americans with Disabilities Act (ADA), other federal and state employment, civil rights, privacy, and consumer protection laws.

    Before embarking on testing or tracking, it is best to seek legal counsel.

  9. Discriminate against those considered susceptible to the coronavirus

    The CDC has identified the population that is at high-risk for severe illness, including people over 65 and those with pre-existing health conditions, and recommends that employers protect such employees by encouraging options to telework and offering duties that minimize interaction. The EEOC has also issued guidance that states that if an employer is concerned about an employee’s health being jeopardized upon returning to the workplace, the employer cannot exclude the employee “solely because the worker has a disability that places him at a ‘higher risk for severe illness'” if he gets COVID-19. Such an action is not allowed unless the employee’s disability poses a “direct threat” to his health, and cannot be eliminated or reduced by reasonable accommodation. However, it is appropriate to reach out to employees in high-risk groups and discuss accommodations that may be possible.

    In deciding who will return to work, legal experts suggest employers should follow the same procedures they would in reductions-in-force by statistically analyzing those they are asking to return and see if it is disparately impacting protected classes. If there’s a statistical anomaly, documentation is critical. A good beginning is to look at the skill sets you’ll need in the new economy and employees who are cross-trained.

    Also, employers must pay close attention to employment laws, including exempt and non-exempt classifications, overtime calculations if performing work in two positions at different rates, and benefits for existing and furloughed workers. For workers’ compensation, employers will want to carefully document all changes to their operation and job classifications, as well as employees on paid medical leave.

  10. Lose focus on other health and safety risks

    It’s well-known that distracted workers are prone to make more mistakes and safety incidents increase. There’s little doubt that COVID-19 and concerns about job security are major distractions. Reinforce the importance of safe work practices and while social distancing may make pre-COVID-19 meetings impossible, alternative methods should be used.

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

OSHA changes course again on recording of COVID-19 cases and increases onsite inspections

OSHA’s shifting guidance has employers’ heads spinning. For the third time since the onset of the pandemic, OSHA has issued guidance about recording COVID-19 cases. In March, it sent a memo reminding employers that COVID-19 diagnoses are recordable events, but in April it backtracked, significantly limiting the reporting requirements. Specifically, only cases related to health care workers, first responders, and correctional institution employees had to be recorded. All other employers were exempt except in cases in which “objective evidence” existed that a COVID-19 infection was work-related or the evidence was “reasonably available” to the employer.

New guidance announced on May 19 overrides the April guidance.Essentially, the new guidance requires an individualized work-relatedness analysis for all industries.

Effective May 26, COVID-19 cases are recordable if the illness is confirmed as COVID-19, the illness is work-related as defined by 29 CFR 1904.5 and the case involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include death, days away from work, medical treatment “beyond first aid,” loss of consciousness, and restricted work or transfer to another job. The revised enforcement policy directs that employers “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not work-related.

Recognizing employee privacy concerns, OSHA indicates that employers are “not expected to undertake extensive medical inquiries” and may rely only “on the information reasonably available to the employer at the time it made its work-relatedness determination.” According to Conn Maciel Carey LLP, an OSHA/MSHA Workplace Safety, Labor and Employment Boutique Law Firm, it will be sufficient in most cases for employers to:

  1. Ask the employee how he believes he contracted the COVID-19 illness
  2. Discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
  3. Review the employee’s work environment for potential SARS-CoV-2 exposure (which should be informed by any other instances of workers in that environment contracting COVID-19 illness).

During the investigations, employers need to consider workers’ privacy and refrain from disclosing the names of those who have tested positive for the virus to others in the workplace and should document all aspects of the investigation. OSHA notes, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

To assist employers in identifying work-relatedness, OSHA describes the types of evidence that may weigh in favor of or against work-relatedness. For instance, OSHA says, COVID-19 illnesses “are likely work-related” if:

  • Several cases develop among workers who work closely together and there is no alternative explanation;
  • The illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation; and
  • Job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

The guidance also indicates that an employee’s COVID-19 illness likely is NOT work-related if:

  • Only one worker in a general vicinity in the workplace contracts COVID-19;
  • Job duties do not include having frequent contact with the general public, regardless of the rate of community spread;
  • Outside the workplace, the infected employee associates closely and frequently with a non-coworker (e.g., a family member, significant other, or close friend) who has COVID-19.

As Conn Maciel Carey LLP points out, the biggest differences between the April 10 guidance and the May 19 guidance are:

  1. There is no exemption from conducting case-by-case work relatedness analyses for medium and low-risk exposure workplaces; and
  2. The new memo expands the examples of the type of objective evidence of likely work-relatedness from just a cluster of positive cases, to also include cases where someone contracts the illness after a lengthy exposure at work or has job duties that involve frequent, close exposure to the general public.

The firm also notes the importance of the term “no alternative explanation.” Where there is widespread community spread, it is important to document if an employee acknowledges such interactions away from work.

When determining whether an employer has complied with the revised policy, OSHA instructs compliance officers in a memo issued the same day to apply these considerations:

  • The reasonableness of the employer’s investigation into whether the COVID-19 case was work-related
  • The evidence available to the employer
  • The evidence that COVID-19 was contracted at work

Consistent with existing regulations, employers with no more than 10 employees and certain employers in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalization, amputation, or loss of an eye.

It is important to remember that even if a COVID-19 is recordable, it does not mean that it will be compensated by workers’ comp. OSHA recordability does not impact workers’ comp determinations and vice versa.

What employers should do now

For employers to prove a reasonable and full faith inquiry, Dustin Boss, a fellow Certified WorkComp Advisor offers this advice:

  • Implement preventive measures and methods for contact tracing as employees return to the workplace
  • Develop procedures to respect employee privacy during investigation into work-relatedness of a confirmed case of COVID-19
  • Update 2020 OSHA records and retrain staff members responsible for tracking injuries (if late, submit 2019 data which was due March 2)
  • Focus on minimizing the risk of transmission in the workplace and develop procedures to investigate the circumstances surrounding employees who test positive for COVID-19

Beyond the recording requirements, employers are exposed to the possibility of OSHA citations. As the fear of contracting the novel coronavirus permeates the workplace, thousands of employees have complained to OSHA regarding the insufficiency of their employers’ protection against COVID-19. In the same news release announcing the new enforcement guidelines, OSHA announced that it is increasing in-person inspections at all types of workplaces. “The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.”

Boss points out that enforcement of COVID-19 issues falls under the catch-all General Duty Clause that employers will provide a place of employment free from recognized hazards that are likely to cause death or serious harm to his employees. He notes that citations for COVID-19 exposure will rely on guidance the employer did not meet, including OSHA’s.

Both OSHA and the CDC recommend employers adopt exposure control plans. (see post for more detail)

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

Things you should know

Medical payments per comp claim rise: WCRI

Medical payments per workers compensation claim increased in most states in 2018 after a period of relative stability, according to studies of 18 states by the Workers Compensation Research Institute (WCRI).

Managers’ attitudes toward worker well-being can lead to safe and healthy behaviors: study

Employees who sense their managers are invested in their well-being at work may be more likely to practice safe and healthy behaviors on the job, results of a recent study from the Colorado School of Public Health suggest. The study was published in the February issue of the Journal of Occupational and Environmental Medicine.

Worker suicide: CDC study explores which industries, occupations have the highest rates

Comprehensive suicide prevention strategies that target certain industry and occupational groups are needed particularly in the extraction and construction industries, according to a report from the Centers for Disease Control and Prevention.

Early care can help mitigate mental issues tied to workplace injuries

An article in Business Insurance cites several studies finding that people who were injured at work have an increased risk of both opioid dependence and depression.

Preventing opioid misuse: New guide for employers in rural areas

Aiming to assist rural communities in the fight against opioid misuse, the Office of National Drug Control Policy has partnered with the U.S. Department of Agriculture on a guide for employers.

State News

California

  • COVID-19 resources for businesses can be found here.

Georgia

  • COVID-19 resources for businesses can be found here.

Illinois

  • COVID-19 resources for businesses can be found here.

Indiana

  • COVID-19 resources for businesses can be found here.

Massachusetts

  • COVID-19 resources for businesses can be found here.
  • The Division of Insurance approved an average 6.8% rate cut for policies incepting on or after July 1.

Michigan

  • COVID-19 resources for businesses can be found here.

Minnesota

  • COVID-19 resources for businesses can be found here.
  • According to a WCRI report, medical payments remained fairly stable between 2013 and 2017 before rising in 2018 at a rate of 6.5% for claims with more than seven days of lost time at 12 months’ maturity. Indemnity benefits per claim were approximately $15,500 for 2016 claims evaluated in 2019.

Missouri

  • COVID-19 resources for businesses can be found here.

Nebraska

  • COVID-19 resources for businesses can be found here.

New York

  • COVID-19 resources for businesses can be found here.

North Carolina

  • COVID-19 resources for businesses can be found here.

Pennsylvania

  • The Governor’s office has issued several COVID-19 guidances related to worker safety, manufacturing, building safety, and construction.

Tennessee

  • COVID-19 resources for businesses can be found here.

Virginia

  • COVID-19 resources for businesses can be found here.
  • The average medical payment per claim decreased 13% after the state implemented a workers compensation medical fee schedule in 2018, according to study details released by the WCRI.

Wisconsin

  • COVID-19 resources for businesses can be found here.

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

 

Legal Corner

FMLA
ABA’s summary of 2019 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 November 1, 2018 through October 31, 2019 in a user-friendly manner.

 

Workers’ Compensation
“Borrowed servant” provisions prevent temporary worker’s tort action against employee – Georgia

In Sprowson v. Villalobos, Waste Pro USA entered into a contract with Labor Ready for providing temporary employees to perform work under Waste Pro’s general or direct supervision. A temporary employee was working on a sanitation truck driven by a Waste Pro employee when he was pinned between the truck and a tree. He received comp benefits from Labor Ready and filed tort action against Waste Pro and the driver of the truck.

A judge dismissed the case against Waste Pro, noting it was barred by the exclusive remedy provisions, but allowed the case against the driver to proceed. The Court of Appeals found that the driver was “an employee of the same employer” and, thus, was protected by the exclusive remedy provisions. The court explained that even if the worker works for a different employer, when he is a “borrowed servant,” he is the co-employee of the borrowing employer’s regular employees, even though temporarily.

 

Case to watch: Worker who died from COVID-19 sues Walmart – Illinois

The family of a Walmart worker who died from complications of COVID-19 is suing the retailer in Estate of Wando Evans vs. Walmart, Inc. Four days after her death, another employee at the Chicago area store died of complications from COVID-19 and other employees exhibited symptoms. The case alleges that the retailer failed to cleanse and sterilize the store, failed to adhere to social distancing guidelines, failed to provide proper PPE, failed to notify employees of known cases, failed to follow OSHA and CDC guidelines, failed to provide employees with soap and wipes, failed to train personnel to minimize threat of COVID-19, failed to monitor employees for symptoms, and hired by phone without verifying they did not have the virus.

 

Additional evidence allowed to support claim of mental injury – Missouri

In Department of Transportation v. Labor and Industrial Relations Commission, a worker for the Department of Transportation (DOT) worked for more than 20 years responding to accident scenes. Her case went through several appeals and ultimately the Supreme Court vacated the finding of compensability, noting that the wrong standard was applied to determine if the work-related stress was “extraordinary and unusual.”

The case was remanded with the directive to review the case against the proper standard, “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.” In turn, the worker filed a motion to submit additional evidence and the DOT filed a request for writ relief, which was denied by the courts.

 

High court denies benefits for injury at doctor’s office – Missouri

In Schoen v. Mid-Missouri Mental Health Ctr., a charge nurse had a reaction to an insecticide that was sprayed around air conditioning units to control ants. The health center sent her to a physician for an evaluation. As she was being escorted by the doctor to a pulmonary function test, the doctor tried to divert a dog and accidentally tripped the nurse. She fell and allegedly sustained permanent injuries to her knees, lower back, hip, and neck, although the physician completed his exam and found she could return to regular duty.

The case made its way to the Supreme Court. Although the employee argued that her tripping injuries were the natural consequence of her cypermethrin exposure, the Court found that the risk of being tripped accidentally was a risk to which she was equally exposed outside of her employment.

 

Future wage replacement benefits denied because of misrepresentation – New York

In Matter of Teabout v. Albany County Sheriff’s Dept., an appellate court confirmed a WCLJ’s and WC Board’s ruling that an employee could not receive future wage replacement benefits because she had misrepresented her work activities and failed to disclose important information to the examining physician. The worker had sustained a foot injury and received a permanent total disability classification. However, while she denied working following the injury, she was running a photography business.

Further, she had denied any psychiatric history prior to her work accident, as well as any family psychiatric history. Based on those denials, the treating physician diagnosed adjustment disorder with a depressed mood that was causally related to her 1997 injuries. However, later the physician received medical records that revealed a strong history of psychiatric issues.

 

Traveling employee rules lead to benefits for traumatic brain injury – New York

In Matter of Wright v. Nelson Tree Serv., an appellate court affirmed a decision by the Workers’ Compensation Board that awarded benefits to a worker who suffered a traumatic brain injury in a motor vehicle accident. The tree service worker was assigned to various locations, sometimes over six hours from his home when he opted to stay at a local hotel for the workweek. He was paid a per diem for food and lodging.

He and his coworkers would drive from the hotel to the same parking lot to pick up a bucket truck and proceed to the designated work site. En route to the parking lot, he was seriously injured. While a WCLJ found the injury was not compensable, the Board reversed and the Appellate Court agreed. It applied the traveling employee exception, where injuries may be compensable even if the employee at the time of the accident was not engaged in the duties of his or her employment, provided that the employee was engaged in a reasonable activity.

 

Traveling employee’s fall in hotel laundry room not compensable – North Carolina

In McSwain v. Industrial Commercial Sales & Serv., LLC, a worker was part of a crew working on a project in California. They finished a day early, but the company opted not to change their flight due to the high cost. On the day off, one worker started a load of laundry then joined his coworkers on the patio for some drinks. When he returned to retrieve his laundry he slipped on a wet spot and fell in the hotel lobby and filed a WC claim.

The Court of Appeals upheld the denial of the claim. While the court noted that when employees are required to stay overnight away from home, they are treated as being within the course of their employment for the duration of the trip “except when a distinct departure on a personal errand” is shown. Doing the laundry was not considered a personal need, such as eating a meal.

 

Court overturns worker’s reinstatement petition – Pennsylvania

In Communication Test Design v. WCAB (Simpson), the Commonwealth Court held that a WCJ erred in granting a worker’s reinstatement petition and awarding unreasonable contest fees. The employer accepted liability for medical bills for an eye laceration. Soon after the company began paying disability benefits, it stopped and denied that the employee suffered a work injury.

The worker argued the company failed to issue a notice that it was stopping its payment of benefits within five days after the last payment of temporary compensation. However, the court found that there was no evidence to prove this and the act provides no remedy for non-compliance. Moreover, the worker had never established disability prior to the filing of the Reinstatement Petition and it was his burden to establish his right to reinstatement. The court noted, the employer not only contested the Reinstatement Petition, but it also proved that the worker did not suffer a disability. Accordingly, the WCJ erred by awarding unreasonable contest fees.

 

Injuries not compensable caused by “Act of God” – Virginia

In Sylvia Martin v. Virginia Beach Schools and Corvel Corp., a school security guard fell when a gust of wind suddenly caused a metal gate, through which she had just passed, to close behind and strike her. The guard, who was on work restrictions from an earlier fall, filed a claim more than four months after the second incident, asserting that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand, and right hand.

The Workers’ Compensation Commission denied the claim and the appeals court affirmed. Applying the “risk test,” the Commission noted that she did not face a risk that was any greater than the public at large. The fall was caused by a natural wind force which, standing alone, had to be considered an “act of God.”

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

OSHA watch

Recent fines and awards

Florida

  • Cathcart Construction Company-Florida LLC was cited for exposing employees to excavation hazards at worksites in Orlando and Winter Garden. The general contractor faces $303,611 in penalties.
  • Skanska-Granite-Lane, a joint venture operating as SGL Constructors, was cited for exposing employees to safety hazards at the I-4 Ultimate Improvement Project worksite in Orlando. One worker suffered fatal injuries and another was hospitalized. The contractor faces $53,976 in penalties.

Georgia

  • Creative Multicare Inc., a carpet restoration, plumbing, and resurfacing contractor based in Stockbridge, was cited for exposing employees to safety and health hazards after a fatal incident at a worksite in Perry. The company faces $183,127 in penalties for failure to properly manage the handling and labeling of hazardous chemicals.
  • Martin-Pinero CPM LLC, a construction contractor based in Atlanta, was cited for exposing employees to fall hazards after a fatal incident at a highway construction project in Atlanta. The company faces $170,020 in penalties. The inspection was conducted in conjunction with the Regional Emphasis Program on Falls in Construction.

Illinois

  • Three employers, Northwestern University, Hill Mechanical Corp., and National Heat & Power Corp., were cited for exposing workers to permit-required confined space hazards associated with underground steam vaults. Northwestern University was cited for failing to provide required information to contractors and coordinate activities, identify and evaluate high-pressure steam as a hazard, isolate steam energy, perform air monitoring, provide required signage, complete entry permits, evaluate their confined space hazard program and ensure the ability to rescue employees from a confined space. It faces penalties of $105,835. Hill Mechanical Corp. was cited for failing to obtain information from the host employer and coordinate activities, identify and evaluate hazards of the space, isolate steam energy, perform air monitoring, complete entry permits, provide required confined space training and ensure the ability to rescue employees from a confined space. The company faces penalties of $105,835. National Heat & Power Corp., the contractor brought in to complete the repairs, faces penalties of $24,292 for four serious violations involving failing to obtain information from the host employer, adequately isolate steam energy, provide required confined space training, and complete entry permits.

Missouri

  • Skinner Tank Company, based in Yale, Oklahoma, was cited for lack of fall protection after an employee constructing a storage tank suffered fatal injuries in a 50-foot fall at a Missouri agricultural facility. The company faces $415,204 in penalties for two willful and 11 serious safety violations and has been placed in OSHA’s Severe Violator Enforcement Program.

Virginia

  • A $5,000 citation against a naval contractor that trains sea lions to detect trespassers was upheld after the Occupational Safety and Health Review Commission determined that a failure to mitigate drowning hazards led to the death of an employee. The Reston-based Science Applications International Corp was cited under the General Duty Clause.

Wisconsin

  • MODS International Inc., a fabrication company that converts shipping containers into commercial and residential structures, was cited for exposing employees to multiple hazards at their facility in Appleton. The company faces penalties of $216,299 for seven repeat and seven serious safety and health violations. The company is contesting the citations.

For more information.

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