Things you should know

NSC survey: 75% of employers affected by opioids

Seventy-five percent of U.S. employers say they have been directly affected by opioids, but only 17% of them feel “extremely well prepared” to manage the issue, according to a survey by the National Safety Council. 38% have experienced absenteeism or impaired worker performance as a result of drug use and 31% have had an overdose, arrest, a near-miss or an injury because of employee opioid use.

In spite of the results, employers say they are more concerned about hiring qualified workers, employee benefits costs and worker compensation costs than they are about employee use of legal prescription opioids or illicit use/sale of opioids.

April is distracted driving awareness month

It’s another opportunity to remind employees of the dangers of distracted driving.

Draft brewery resources

The expansion of the craft brewery industry is continuing at a rapid pace and WorkSafeBC has produced resources to assist brewery and distillery employers with their health and safety programs. They include a downloadable guideposters, and a videofeaturing Red Truck Beer Company’s approach to safety.

EPA training designed to help prevent paraquat poisonings

The Environmental Protection Agency is offering training intended to help prevent poisonings among workers who apply the toxic herbicide paraquat, as required by agency regulations.

Guidance on lifting during and after pregnancy

The American College of Obstetricians and Gynecologists has guidance on appropriate limitations throughout pregnancy and immediately after giving birth.

State News

California

  • The number of prescriptions for drugs that do not require a utilization review under the year-old workers’ compensation formulary increased to 38.5% in 2018, up from 35.2% in 2017, and payments for drugs not listed on the formulary increased by more than 10 percentage points, according to the Workers’ Compensation Research Institute.
  • State Fund announced it has launched SafeAtWorkCA.com, a new online safety resource designed to help employers protect their workers and build cultures of safety.
  • The Division of Workers’ Compensation updated four chapters of the state’s medical treatment guidelines, and added a new section covering post-traumatic stress disorder and acute stress disorder.

Illinois

  • The Department of Insurance no longer requires a narrative when errors are discovered in carriers’ aggregated data reports.
  • The legislature approved a bill that allows some workers to sue their employers for occupational injuries, specifically those that have passed the statute of limitations. Currently, an employee’s exclusive remedy lies under either the Workers’ Compensation or Occupational Disease Acts. The new bill allows workers who suffer a disability due to exposure to asbestos more than 25 years after the last exposure not only to file a civil action, but also no longer be confined to the limitations on compensation under the Occupational Diseases Act. The bill was sent to the governor’s office.

Virginia

  • Maximum and minimum compensation rates will increase, by about 1.85% on July 1, the Workers’ Compensation Commission announced. The maximum compensation rate will increase to $1,102 from $1,082, while the minimum rate will increase to $275.50 from $270.50. The reimbursement rate of 55.5 cents per mile has not changed since October 2011.

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

The daunting challenge of maintaining a drug-free workplace

With a national opioid crisis that defies holistic solutions, the legalization of medicinal marijuana in more than 30 states and recreational marijuana in 10 states, increases in deadly overdoses in the workplace, changing state laws, confusion over OSHA’s anti-retaliatory drug testing rule, and concerns about medical privacy, no employer should think they are immune to the problem. In fact, according to the National Safety Council (NSC), 15.6% of American workers live with a substance disorder and The Hartford reports that 64% of HR professionals are ill-prepared to help a worker with an opioid addiction.

These factors, coupled with a tight labor market and low unemployment, have led some employers to soften zero-tolerance policies for jobs where safety is not critical and there is a low risk of injury or error. The decision to relax zero-tolerance policies requires buy-in from company leadership and supervisors as well as serious evaluation of the consequences. Although the legalization of marijuana exponentially increases the complexity of the issue, the reasons for maintaining a drug-free workplace remain constant: safety of employees and customers, lower absenteeism, reduced turnover, fewer workers’ comp claims, fewer workplace conflicts, and reduced liability for workplace accidents.

It’s also troublesome for supervisors because substance abuse often falls below the radar of the workplace. Yet, for five consecutive years, unintentional workplace overdose deaths have increased by at least 25%. Drug testing, which is often a critical component of a zero-tolerance policy, can identify those at risk.

Here are five things to consider when evaluating a drug policy:

Legal concerns

While federal law regulating drug testing affects some heavily-regulated industries, there is no comprehensive federal law regulating drug testing in the private sector. The Drug-Free Workplace Act of 1988 requires all recipients of federal grants and some federal contractors to maintain a drug-free workplace.The ADA does not consider drug abuse a disability and allows drug testing; however, disability discrimination is a significant legal risk. If an applicant is not hired or an employee is terminated because of a positive drug test and the medication was legally prescribed for a disability, the employer could be liable. Reasonable accommodations must be provided at application, hiring, and during employment.

State laws that do regulate workplace drug testing vary widely and are constantly changing. Generally, state laws allow employers to drug test job applicants. However, many have rules about providing notice, preventing discrimination, and following procedures to prevent inaccurate samples. The laws governing testing of current employees varies widely by state, with some prohibiting random testing and others requiring ‘reasonable suspicion.’ There are also laws governing post-accident testing. It’s critical to understand and stay abreast of the laws in all the states in which you operate.

Marijuana

Marijuana is one of employers’ biggest worries and one of the driving reasons for employers to relax pre-employment drug testing. There is legitimate fear that it will reduce the pool of qualified candidates. Some address this issue by removing marijuana from the test panel for many positions that are not safety-critical.

The laws vary significantly with states that have legalized marijuana and case law is limited and evolving. Some states have card holder anti-discrimination statutes and some states prohibit firing of an employee who tests positive for marijuana while others allow it. Although all marijuana use is still illegal under federal law, state courts across the country are deciding cases on medical marijuana use and accommodation. Employers are wise to consider whether positive drug tests are connected to medicinal use before making employment decisions.

Employers should be careful about penalizing employees for off-duty marijuana use, since some states have statutes protecting employees. However, most states permit employers to prohibit marijuana use on their premises and to discipline employees who come to work under the influence.

While the uncertainty is unnerving for employers, a growing number of states are writing statutes to remove the ambiguities. Statutes in Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania, Rhode Island, Washington DC, and West Virginia address employment protection for medical marijuana patients. It’s still possible to restrict marijuana use in these states, but care needs to be taken in crafting and enforcing a policy.

If you choose to differentiate marijuana policies from other drug policies, consider these questions:

  • Will treating marijuana differently create problems in the workforce?
  • Under what circumstances will employees be tested for marijuana?
  • What are the consequences of not testing (i.e. more injuries, absenteeism)?
  • What is the process to determine a medical exception to the policy?
  • What happens when an employee fails the test?

Workers’ Comp

Substance abuse can contribute to workplace accidents and a drug-free workplace helps prevent accidents, thus lowering workers’ comp costs. In some states, employers implementing a drug-free workplace receive a premium discount. As of October 2018, 13 states had such laws. While the requirements and discounts vary, the states include Alabama, Arkansas, Florida, Georgia, Idaho, Kentucky, Mississippi, Ohio, New York, South Carolina, Tennessee, Virginia, and Wyoming.

In addition, some states have enacted laws to make it easy for employers who properly drug test to deny workers’ compensation benefits. For example, Florida law provides that if the employee tests positive for drugs, then “it is presumed that the injury was occasioned primarily by…the influence of the drug upon, the employee.”

Medical marijuana raises thorny issues for employers. Can a claim be denied if an employee tests positive for using state-approved medical cannabis? Can an injured employee receive medical marijuana to treat a workplace injury? Both are new and evolving issues that will be the subject of future court cases and state regulations. The Minnesota Department of Labor & Industries issued rules allowing cannabis as a reimbursable form of medical treatment.

OSHA

The anti-retaliatory provisions of OSHA’s e-Recordkeeping rule resulted in considerable confusion about post-injury drug testing policies, which was somewhat clarified in a guidance memo in October 2018. Before doing post-accident drug testing, employers should:

  • Have a reasonable basis to conclude drug use could have contributed to the injury
  • Test all employees whose conduct could have caused an accident, even if they were not injured
  • Identify high hazard work as a reason for testing
  • Determine if the drug test can provide insight to the root cause of incident
  • Consider whether drug test is capable of measuring impairment at the time the injury occurred
  • Ensure employees are not discouraged or dissuaded from reporting injuries

Remember, the rule does not affect new hires, random testing, or testing to comply with state or federal laws or required by Workers’ Comp insurers.

Privacy

Although challenges to workplace drug testing policies on the grounds that they violate employees’ privacy have generally not been successful, the manner in which the test is conducted and how the results are used have been successfully challenged. Drug test results are considered protected health information and must be kept confidential. Further, as laws on employee privacy continue to evolve, testing that is not clearly authorized by law could be open to legal challenges.

Conclusion

Zero-tolerance policies are strong stands that send an important cultural message, but like any policy it should be evaluated periodically. How effective has it been? Has it hampered recruitment and retention efforts for positions that are not safety-critical? Has it prevented workers from seeking the help they need to deal with substance abuse? Does it impede flexibility?

Anecdotally, more employers are tailoring drug testing to the job and adding a fitness-for-duty component. Any policy changes require serious consideration as protecting employees remains the top priority. However, no change in policy should excuse an employee who is impaired while working. There’s just too much at risk.

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

Things you should know

Updated Workers’ Compensation Medicare Set-Aside Reference guide issued

The updated guide, version 2.9, addresses spinal cord stimulators and the inclusion of off-label prescription drugs, particularly Lyrica as well as updating Life Tables and examples of settlements not meeting The Centers for Medicare & Medicaid Services (CMS) review thresholds, but which would still require consideration of Medicare’s interests.

The NGHP User Guide was also updated and CMS will maintain the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibly for medicals.

Some experts suggest that the changes are another indication that CMS intends to make Medicare Secondary Payer (MSP) enforcement a priority in 2019.

New app can help determine what’s allowed in MSAs

The CMS launched its “What’s Covered” app to give consumers more information about their Medicare benefits. It also can be a valuable assist for injured workers with MSAs.

Study: Most manufacturing workers experience fatigue

study by the American Society of Safety Professionals suggests that the automation of manufacturing processes may be contributing to worker fatigue, which was found in 58% of the workers studied. Fatigue monitoring, such as wearables that monitor heart rate, are a possible solution. The report also notes three interventions to help mitigate fatigue: posture variance, chemical supplements and rest breaks.

Work comp insurers cite top concerns

Every year for the past decade, the National Council on Compensation Insurance (NCCI) surveys carrier executives in the workers’ compensation industry to better understand their market perspectives, needs, and challenges. Learn what keeps them up at night.

New guidance for pain management in the age of the opioid epidemic

draft report from the Pain Management Best Practices Inter-Agency Task Force, which acts in an advisory capacity for the federal government, calls for individualized, patient-centered pain management. Public comments are welcome.

Study: Injured workers in the mining and construction industries and those in rural areas more likely to receive opioid prescriptions

study by the Workers Compensation Research Institute (WCRI) found 33% of injured workers employed in mining and 29% in construction received opioids for certain injuries and are more likely to receive higher doses and for longer time periods. The study also found that older workers were more likely to receive opioid prescriptions compared with younger workers, with 49% of injured workers age 49 or older receiving opioids compared to 42% of workers between the ages of 25 and 39.

Meanwhile, a higher percentage – 66% to 79% – of workers who sustained fractures, carpal tunnel and neurologic spine pain received at least one opioid prescription for pain relief. It’s postulated that those in rural areas receive more opioids because there are fewer pain management options available.

New video on performing tower modifications

new video from the National Association of Tower Erectors highlights the importance of understanding and following the proper sequence of performing tower modifications.

Injured Massachusetts teen workers lacked health and safety training: report

Nearly half of the teen workers in Massachusetts who were injured on the job between 2011 and 2015 said they did not receive health and safety training from their employer, according to a Massachusetts Department of Public Health annual report on teen worker safety. Four industries – accommodations and food service (37 percent), retail trade (19), health care and social assistance (11), and construction (4) – accounted for more than 70 percent of all work-related injuries involving teens in the state.

NIOSH releases resources on dampness and mold assessment

NIOSH recently introduced checklists to help employers assess damp areas and identify mold. The Dampness and Mold Assessment Tool has two versions – one for general buildings and one for schools – as well as a four-step assessment cycle.

CPWR releases alert, toolbox talk on lightning safety

Stressing the importance of lightning awareness while working outdoors, the Center for Construction Research and Training (CPWR) has published a hazard alert and toolbox talk addressing the topic.

State News

California

  • Division of Workers’ Compensation has updated its formulary for injured workers to include drugs to treat traumatic brain injury, effective Feb. 15
  • FMCSA granted a petition to pre-empt the state’s meal and rest break rules for commercial motor vehicle drivers

Florida

  • OSHA resumes normal enforcement activity following Hurricane Michael

Massachusetts

  • A new law applies OSHA standards to all public employees, including municipal workers and quasi-public agency workers

Michigan

Minnesota

  • New law recognizes post-traumatic stress disorder as a compensable condition for first responders

New York

  • Governor vetoed bill that would have regulated and permitted acupuncturists to treat injured workers in the state’s workers compensation
  • WC Board launches virtual hearing app, WCB VHC, which is free in the iOS App Store

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