HR Tip: Managers are key to culture issues – how to avoid a toxic workplace

In today’s competitive marketplace, it’s distressing to hear that one in two workers have seriously thought about leaving their current job. A recent report by the Society for Human Resource Management (SHRM), The High Cost of a Toxic Workplace Culture: How Culture Impacts the Workforce-and the Bottom Line, notes that many workers consider culture and managers to be closely connected, holding managers responsible for creating a toxic workplace. In fact, 76% of employees say their manager sets the culture of their workplace and 58 percent of employees who quit a job due to workplace culture say that their managers are the main reason they ultimately left.

More findings:

  • 1 in 3 say manager does not know how to lead them
  • 3 in 10 say manager does not encourage a culture of open and transparent communication
  • 1 in 4 dread going to work, don’t feel comfortable expressing their opinions, and don’t feel respected or valued
  • A breakdown in communication is perhaps the most common sign of a toxic atmosphere at work

The report notes that even if the culture is not toxic, but “average,” it’s not enough. Employees still think about leaving and aren’t likely to recommend the organization to a friend. Managers can build strong and positive workplaces by listening to employees, holding workers and leaders accountable for their actions, setting expectations, and clarifying information.

Workplace culture is a critical business asset and employees see the company through their immediate boss. Is the culture you have the culture you want? How well does the individual manager’s behavior reflect the organization’s core values? What steps are needed to keep values and actions aligned?

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

Six reasons you can’t ignore mental health in workers’ comp

Compensability of mental injuries in workers’ compensation is complex and varies widely by state. Some states allow compensability for physical-mental injuries, where a workplace injury leads to a mental condition, such as depression. Less common are allowances for mental-physical claims, where a psychological condition arising out of the worker’s employment causes a physical illness, such as stress leading to a heart attack.

Mental-mental injuries involve a psychological occurrence at work, which leads to a psychological injury or condition, such as post-traumatic stress disorder (PTSD). They’re controversial, limited, and have gotten a lot of attention lately as states have considered new laws, especially for first responders.

Similar to physical injuries, in order to be compensable, the mental injury or condition must arise out of and occur during the course of employment. Given the subjective nature of mental health claims, pre-existing conditions, and the time it takes for conditions to manifest, they can be contentious and difficult to prove under this standard.

However, the issue is not just compensability. Whether or not these injuries are compensable, they can greatly impact the cost of the claim, productivity, and morale.

Here’s how:

  1. They can have a significant impact on the duration of a claim. An expert commentary on IRMI notes that more than 50 percent of injured workers experience clinically-related depressive symptoms at some point, especially during the first month after the injury. Unresolved chronic pain, lack of coping skills, fear of job loss, are just some of the factors that lead to “disability syndrome” – the failure to return to work when it is medically possible, with claim costs spirally out of control. When physical treatments aren’t making progress, it’s time to start thinking about psychological factors.
  2. Mental health conditions are some of the costliest health issues to treat and result in harder-to-quantify costs such as lost productivity and absenteeism. Untreated, employees have the potential to become an unsafe worker, which can affect other employees.
  3. While mental workers’ compensation claims represent a small percentage of all claims, many experts note they are growing. Greater awareness of these injuries by all stakeholders, efforts to reduce the stigma associated with mental health, attorneys advertising on TV, poor work-life balance, the modern 24/7 workplace, successful court cases, all contribute to rising frequency.
  4. According to a recent article in Business Insurance, Reviews of psych claims in comp increase, “requests for independent medical examinations for workers compensation claims with a psychological condition are rising, in part due to greater awareness of post-traumatic stress disorder and an increase in workers seeking treatment for depression and anxiety in conjunction with a physical injury.” Psych IMEs often are costlier than physical exams, driving comp costs higher.
  5. PTSD is increasingly a common condition in claims, but often it’s added later. This makes it difficult to determine if the claim is legitimate or malingering, an attempt to prolong the claim.
  6. Although mental health remains a taboo subject in many workplaces, changing workplace demographics reflect a generational shift in awareness. More and more employees feel a company’s culture should support mental health. According to the American Psychiatric Association, 62% of Millennials say they’re comfortable discussing their mental health issues, compared to 32% of Baby Boomers. Providing employees with the support they need improves not only engagement but also recruitment and retention.

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

Early workplace injuries predictor of frequent filers

Workers injured in the first six months of their employment are more than twice as likely to have three or more lost-time injuries during their duration of employment than other workers, according to a recent study published in the American College of Occupational and Environmental Medicine. For each year employed before the first lost-time injury, the probability of having three or more lost-time injuries decreased by 13%, according to the study.

The study included 7,609 lost-time claims at Johns Hopkins Health System and University from 1994 through 2017. The injuries occurred among 5,906 workers; 84% were health care workers, and the remainder were academic employees. Although only 49 workers (0.83%) had five or more claims, they accounted for 3.5% of claim costs, or $4.8 million. The workers in the study had an average length of employment of 15.7 years.

Other studies have shown that new employee risk of injury is higher than other workers. Earlier research from the Toronto-based Institute for Work & Health (IWH) found that employees in their first month on the job have more than three times the risk for a lost-time injury than workers who have been at their job for more than a year.

Neither study delved into the issue of “why.” Common speculation is that training and mentorship were inadequate or that hiring practices are the root of the problem. It makes sense because newness is the common thread. Workers performing unfamiliar tasks in a new work environment with less knowledge and awareness are at a more significant risk regardless of their age, according to the IWH.

Yet, assumptions should not be made and each company must analyze their own data. Begin by looking at the data on the injuries incurred in the first six months of employment. Was the hiring process rushed or inadequate in anyway? Was there a post-offer physical exam?

Assess the effectiveness of training and acclimation to the job. Were new workers given real-life practice, a clear message about safety, site-specific information, allowed to start in low-risk situations and advance to higher-risk work? While people learn differently, the more they can perform the work, the better they become.

Review the incident investigations to look for commonalities – location, department, job function/procedure, equipment and so on. How effective was the return-to-work experience?

How you intervene depends on what you learn. It may be that you need to shore up your training program, implement a mentorship approach, or alert the supervisor to provide additional oversight so the employee works more safely. If there are “red flags” such as the injured worker immediately hiring a lawyer, conflict with supervisor or other workers, insufficient detail about injury/accident, no witnesses, failure to keep medical appointments, and so on, you should consult your attorney. In most cases, the injuries of new employees are legitimate, but new employees with fraud “red flags” require special attention.

The message to employers is that there is an association between early employment injuries and risks for multiple injuries. Repeat claims are costly. A thorough analysis is an opportunity to develop preventive measures or cut loose a potential serial offender.

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

The new overtime rule and workers’ compensation

The Labor Department estimates that the new overtime rule, which takes effect January 1, 2020, will affect 1.3 million workers. The new rule raises the minimum salary threshold from $455 per workweek to $684 per workweek. This means that salaried workers who earn less than $35,568 per year will be eligible for time-and-a-half overtime pay if they work over 40 hours, up from the current threshold of $23,660. While the new rule updates the earnings thresholds necessary to exempt executive, administrative, or professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements, it does not alter the white-collar exemptions’ duties tests.

Employers need to make decisions about the compensation packages of exempt employees who earn less than the new weekly threshold of $684, but more than the current threshold of $455, before year’s end. The options are to increase salaries to the new level, reclassify employees as non-exempt, and structure workloads to preclude overtime hours.

The rule also permits employers to use non-discretionary bonuses and incentive payments paid at least annually to satisfy up to 10% of the standard salary level. In its FAQ, the DOL notes that, “if an employee does not earn enough in non-discretionary bonuses and incentive payments (including commissions) in a given 52-week period to retain his or her exempt status, the Department permits a “catch-up” payment at the end of the 52-week period. The employer has one pay period to make up for the shortfall (up to 10 percent of the standard salary level for the preceding 52-week period). Any such catch-up payment will count only toward the prior 52-week period’s salary amount and not toward the salary amount in the 52-week period in which it was paid. If the employer chooses not to make the catch-up payment, the employee would be entitled to overtime pay for any overtime hours worked during the previous 52-week period.”

The rule also raises the salary threshold for the highly compensated employee exemption (HCE) from $100,000 to $107,432 per year, but it does not change how employers may use bonuses to meet the salary level component of the HCE test.

How will this affect workers’ compensation premiums?

While the premium calculation can be more complicated, this simple formula gives an idea of how it is done:

Payroll (per $100) x Classification Rate x Experience Modifier = Premium

What’s important is that in almost all states payroll (which is often referred to as the basis for premium) is actually remuneration, which is much more than payroll. Increasing salaries of exempt workers will increase premiums, based on the employee’s classification. However, the issue of non-exempt workers and increased payroll that results from overtime is more complicated. To understand how the new overtime rule will impact premium, you’ll need to know the rules for treating overtime pay in your state.

With the exception of four states (Pennsylvania, Delaware, Utah, and Nevada), overtime pay can be reduced to straight time when determining the workers’ comp premium. Many insurance companies define overtime pay as the wages paid at one-and-a-half times the employee’s hourly rate for overtime hours. So, in most states, if a worker makes $20/hr. and is paid $30/hr. for overtime, the company pays premium on the $20, but not the extra $10.

In Pennsylvania, Delaware, Utah, and Nevada, overtime pay is subject to premium and may be added during the annual comp audit process, if not properly projected in your payroll for the year. So, in the case above, the company pays premium on the full $30.

Next steps for employers

  1. Make decisions about the employees who are affected by the new overtime threshold.
  2. Clearly communicate to all employees the new rule. If employees are being reclassified, it is important not only for them, but for those who report to them, to understand why they are being reclassified. Be sensitive to the perception that changing from exempt to non-exempt can be viewed as a negative change in status. Individual meetings to reinforce that the change is based on regulations, not performance, can help.
  3. Evaluate your time tracking system and train reclassified employees in its use. An automated time tracking system is critical in ensuring accurate overtime pay.
  4. Assess your telecommuting policies and the ability to monitor hours worked, if telecommuters are being reclassified.
  5. Keep adequate records of overtime. In states that allow overtime exclusion for workers’ comp, if adequate records are not maintained, the overtime pay cannot be excluded from the total payroll and you must pay on the entire amount. If the rate of overtime varies, for example, time-and-a-half and double time, be sure the records are distinct, as the adjustment will differ. This information should be in a form that is easily determined by the auditor, summarized by classification on an annual basis.
  6. Keep an eye on your projected payroll for your workers’ comp policy. At the year-end of your policy, an audit will determine if you’ve underestimated payroll. To avoid year-end surprises, be as accurate as possible when projecting annual payroll.

It’s important to note that the new rule does not take precedence over more stringent state rules. Generally, businesses must comply with the law that provides the most protection for the employee. Many states have higher thresholds and additional criteria for exempt status than under federal law. Multi-state employers should look at compliance on a state-by-state basis.

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

OSHA watch

Proposed revisions to Beryllium Standards for Construction and Shipyards finalized

The June 27, 2017 proposal to revise the construction and shipyards standards was finalized on September 30. A news release notes the rule:

  • Does not implement the proposal to revoke all of the standards’ ancillary provisions, but
  • Extends the compliance dates for the ancillary provisions to September 30, 2020 to account for the new proposal to revise or remove specific provisions; and
  • Maintains enforcement of the permissible exposure limit

Final rule issued for new respirator fit testing protocols

final rule which becomes effective September 26, 2019 adds two fit testing protocols to the agency’s respiratory protection standard (1910.134) was published in the Federal Register on September 26.

The additions are:

  • The modified ambient aerosol condensation nuclei counter quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators
  • The modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators

These new methods are in addition to the standard’s four existing protocols and are variations of OSHA’s original ambient aerosol CNC protocol, but have fewer test exercises, shorter exercise duration, and a more streamlined sampling sequence.

New secretary of labor

Eugene Scalia is the new secretary of labor, after the Senate confirmed him Sept. 26 in a 53-44 vote. Scalia, a corporate lawyer and the son of late Supreme Court Justice Antonin Scalia, replaces acting Secretary of Labor Patrick Pizzella who has been in charge of the department since R. Alexander Acosta resigned on July 19.

New weighting system for inspections

Under the current enforcement weighting system, certain inspections are weighted based on the time taken to complete the inspection or, in some cases, the impact of the inspection on workplace safety and health. The Weighting System (OWS) for fiscal year (FY) 2020 adds enforcement initiatives such as the Site-Specific Targeting to the weighting system and other factors, including agency priorities and the impact of inspections. It will incorporate the three major work elements performed by the field: enforcement activity, essential enforcement support functions (e.g., severe injury reporting and complaint resolution), and compliance assistance efforts.

For more information.

Tribal business not subject to OSH Act

In Secretary of Labor v. Red Lake Nation Fisheries Inc., an administrative judge dismissed citations levied against a fishery after two of its workers drowned, finding that the 8th U.S. Circuit Court of Appeals in St. Paul, Minnesota, had previously held that the U.S. Secretary of Labor does not have the authority to enter tribal lands to inspect a workplace. Red Lake Nation Fisheries Inc., based in Redby, Minnesota, is owned and operated by federally recognized Indian tribe the Red Lake Band of Chippewa Indians.

New alert: working safely near overhead powerlines

The latest alert offers solutions for working safely near overhead power lines.

Oil and gas training tool

The updated Oil and Gas Well Drilling and Servicing eTool includes solutions to common well site incidents, hot work, and hydrogen sulfide hazards.

Joint guidance on GHS pictogram requirements

In concert with Health Canada, joint guidance on pictogram requirements for three hazard communication categories has been released. The categories are Hazards Not Otherwise Classified, Physical Hazards Not Otherwise Classified, and Health Hazards Not Otherwise Classified.

Cal OSHA overhauls reporting requirements for serious injuries

Changes to the definition of “serious injury or illness” bring California injury reporting requirements more in line with the federal hospitalization and amputation rule. The new rule:

  • Eliminates the old 24-hour minimum time for a stay at the hospital for an inpatient hospitalization to become reportable;
  • Specifies an inpatient hospitalization must be required for something “other than medical observation or diagnostic testing”
  • Replaces “loss of a member” with the term “amputation”
  • Includes loss of an eye as a specific type of reportable injury
  • Deletes the exclusion for serious injuries or deaths caused by a violation of the Penal Code
  • Narrows the exclusion for injuries caused by auto accidents on a public street; accidents that occur in a construction zone are now reportable

Recent fines and awards

Florida

  • Twins Twins LLC, a tortilla company, was cited for exposing employees to amputations at the company’s facility in Labelle. The company faces $81,682 in penalties. Conducted under the National Emphasis Program on Amputations and Regional Emphasis Program for Powered Industrial Trucks, the inspection found several violations related to lockout tagout, machine guarding, and failure to report a partial finger amputation within 24 hours of the employee’s hospitalization. The company was placed in the Severe Violator Enforcement Program.
  • Hough Roofing Inc., based in Palm Bay, was cited for exposing employees to fall hazards after a worker suffered a fatal injury from a fall while performing roofing activities at a work site in Melbourne. The roofing contractor faces $26,142 in penalties
  • UPS Inc. was cited for failing to protect employees working in excessive heat after an employee suffered heat-related injuries near the Riviera Beach facility. The company faces $13,260 in penalties, the maximum penalty allowed by law for a serious violation.

Georgia

  • Hyundai Transys Georgia Powertrain Inc., operating as Powertech America Inc., was cited for exposing employees to struck-by and fall hazards after a fatality at the company’s West Point facility. The automobile transmission manufacturer faces $68,194 in penalties.

Illinois

  • Polo Masonry Builders Inc., based in Park Ridge, was cited for exposing employees to fall and scaffolding hazards while working on a commercial building project in Chicago and faces penalties of $252,136. The company, which has been cited for fall protection violations 13 times since 2010, was placed in the Severe Violator Enforcement Program.

Michigan

  • A settlement was reached with Kamphuis Pipeline Company, based in Grand Rapids, to resolve trenching hazard-related citations. The company agreed to cease business operations and pay penalties of $509,071 for willful and serious violations. Company owner and founder Daniel J. Kamphuis agreed to surrender his North Dakota contractor license and both he and the company also agreed not to have any ownership or managerial interest in any construction business conducting trenching and excavation activities within the United States in the future.

New York

  • Rex Harper, doing business as REH Property Maintenance, was cited for improper asbestos removal and disposal at Superior Steel Door & Trim Co. Inc. in Jamestown. Harper faces $168,772 in proposed penalties.

North Carolina

  • Oldcastle APG South Inc., based in Greensboro, and operating as Coastal, was cited for exposing employees to amputation, struck-by and silica hazards at the company’s facility in Riviera Beach, Florida. Oldcastle APG South Inc. faces $132,037 in penalties.

Wisconsin

  • Koller Industries operating as Aurora Castings Services was cited for continually exposing employees to machine hazards at the facility in Niagara. The company is contesting the citations that total $ 206,291 in penalties.
  • Wood Sewer & Excavation Inc. was cited for willfully exposing employees to excavation hazards at a construction site in Fox Point. The company faces $65,921 in penalties.

For additional information.

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

Legal Corner

ADA

Inflexible maximum leave policy leads to $550,000 settlement

Delaware-based Connections CSP provides services in correctional and other state facilities. The EEOC determined the company fired people with disabilities who needed additional unpaid leave beyond the required 12 weeks under the Family and Medical Leave Act and did not provide other requested reasonable accommodations. The company agreed to pay $550,000 in monetary relief to five former employees and to implement and disseminate a new, reasonable accommodation policy to all employees, among other provisions.

Workers’ Compensation

Injured employee not entitled to TDI for wage loss to go to medical appointments – California

Originally an unpublished decision, Skelton v. WCAB, involved an employee who suffered on-the-job injuries in 2012 and 2014. She continued to work full-time, but took time off to go to medical appointments, using sick and vacation leave. When her leave was exhausted, she lost wages for the time away from work and sought temporary disability indemnity (TDI) benefits to reimburse her wage loss.

The decision of a WCJ that she was not entitled to benefits was upheld by the Workers’ Compensation Appeals Board and the 6th District Court of Appeals. The court reasoned that once she had returned to work full-time, her wage loss was not a result of an incapacity to work, but rather a scheduling and leave policy issue.

Saturdays not counted as a working day in UR decisions – California

In Puni Pa’u v. Department of Forestry the Workers’ Compensation Appeals Board ruled that Saturdays don’t count as working days when determining whether a utilization review decision was timely.

Workers’ comp, not CGL, must cover injury – Florida

In Endurance American Specialty Insurance Co. v. United Construction Engineering Inc., Carlos Marroquin Lopez, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court’s decision that a commercial general liability (CGL) insurance policy did not cover injuries sustained by a worker in the course of his job but, rather, that the worker’s injuries fell under Florida’s workers’ compensation law. The general commercial liability policy issued to Weston-based United Construction Engineering Inc. had two exclusions, one that specifically excluded injuries that would be covered by a workers’ compensation claim and a second that excluded bodily injuries of workers injured in the course of their employment.

United Construction hired a subcontractor for a roofing repair project and neither carried workers’ comp insurance when a temporary employee slipped and fell into a pool of hot tar on the job site. The employee sued United, arguing that the use of the word employee in the policy created an ambiguity such that the employee exclusion does not apply. The court, however, noted this argument did not address the workers’ compensation exclusion that independently nixed the claim.

Teacher receives benefits for injuries incurred performing tasks not in job description – Massachusetts

In Boston Retirement Board v. Contributory Retirement Appeal Board, an Appeals Court affirmed a Superior Court ruling granting accidental disability retirement benefits to a teacher. In Fall 2009, she incurred injuries from lifting and carrying a computer to her classroom, moving tables, and breaking up an altercation among several students. The Boston Retirement Board argued the tasks she was performing were not part of her job duties and did not occur during working hours, therefore, they were not compensable.

The court disagreed. It noted even though the specific activities were not mentioned in the job description, teachers were required to maintain a classroom that was attractive and assume general responsibility for the welfare of the students. Moreover, although the incidents occurred before school hours or at lunch, she was engaging in the performance of her duties. Thus, her disability was “the natural and proximate result” of personal injuries sustained in the course of her job duties.

Reimbursement for overpayment possible without showing fraud – Michigan

In Fisher v. Kalamazoo Reg’l Psychiatric Hosp, the employer overpaid benefits for approximately three months following an injury of a worker and applied for reimbursement. The Compensation Appellate Commission has repeatedly held that when an employer has voluntarily but mistakenly overpaid, it had to show fraud on the part of the injured employee. The court of appeals, however, said the commission exceeded its statutory authority in setting a fraud requirement. The legislature had promulgated the right of reimbursement for overpayment of workers’ compensation benefits, allowing recovery of the overpayment made within one year of the recoupment action and that should govern. Thus, the Court reversed the denial of an employer’s petition for reimbursement.

Disability benefits for PTSD and wife’s nursing services for truck driver upheld – Missouri

In Reynolds v. Wilcox Truck Line Inc., an appellate court affirmed a Labor and Industrial Relations Commission decision that awarded worker’s compensation benefits to a truck driver whose tractor-trailer overturned and caught fire on the side of a freeway. While he escaped with no physical injuries and briefly returned to work, he later was diagnosed with post-traumatic stress disorder (PTSD) and was rated as permanently and totally disabled. His request for nursing services was denied and his wife left her job to provide daily home care.

The Commission overturned an ALJ denial of nursing services. While the employer argued that the employee was capable of other types of employment, the appellate court noted that a worker does not need to be “completely inert or inactive” to qualify as permanently and total disabled, and found that the employer failed to consider a vocational rehabilitation report finding the employee “totally vocationally disabled from employment.”

Noting that the law allows for compensation for nursing services, there is no statutory definition of nursing, and the phrase “nursing” puts the focus on the type of service rendered, not the person providing it, the Court found the wife’s services compensable.

$1.1 million settlement for tree trimmer from Mexico – Missouri

The $1.1 million settlement was reached fourteen years after a tree trimmer from Mexico, who was working on an agricultural visa, was paralyzed in a fall just three weeks after beginning work. He returned to Mexico and received $200 a week in temporary disability payments for a total of almost $150,000, plus medical expenses of over $2.3 million. The settlement provides $1.1 million, including an immediate payment of $500,000, plus $3,400 monthly for 15 years.

“Attachment to Labor Market” amendment not always retroactive – New York

In 2017, the statute was amended to relieve some workers classified as permanently partially disabled of having to demonstrate an ongoing attachment to the labor market to continue receiving wage replacement benefits. In Matter of Pryer v. Incorporated Village of Hempstead, a worker injured his back in 2012, was classified as having a permanent partial disability and an 85% loss of wage-earning capacity and did not return to work. The Workers’ Compensation Board (WCB) discontinued benefits in August 2014, finding he was not sufficiently attached to the labor market.

After the amendment passed, he filed a request for further action and a WCLJ determined the amendment applied and awarded benefits. However, the WCB and an appellate court overturned, noting that where the Board specifically determined, prior to the effective date of the amendment, that the worker failed to demonstrate continued attachment to and had voluntarily withdrawn from the labor market, the amendment did not apply.

Police officer suicide not compensable for survivor benefits – New York

In Matter of Delacruz v. Incorporated Village of Freeport, an Appellate Division of the Supreme Court ruled the family of a police officer who took her own life are not eligible for survivor benefits because it remains unproven that the officer’s suicide was related to a mental injury caused by work. While a WCLJ approved benefits, the decision was reversed by the WCB and upheld by the court. Although the suicide occurred while she was on duty, the court noted that other factors, such as marital counseling and stress and depression during the holiday season, may have contributed to her suicide.

Perception theory not valid in retaliatory discharge suit related to workers’ compensation – Pennsylvania

In Bamat v. Glenn O. Hawbaker, Inc., a federal district court construing Pennsylvania law, noted that the “perception theory” had been recognized in retaliation claims alleged under the ADA, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA). However, the theory is insufficient for a retaliatory discharge case based on a workers’ comp claim. It is not enough for a discharged worker to show that the former employer believed the worker was going to seek workers’ compensation; the employee must either have filed a claim for benefits or expressed his intent to do so.

Sixth Circuit overturns ruling that federal immigration law preempted state law on retaliatory discharge – Tennessee

In Torres v. Precision Industries, the Sixth Circuit Court of Appeals reversed a decision of the U.S. District Court that the retaliatory discharge provision of the state’s Workers’ Compensation Act was preempted by the Immigration Reform and Control Act of 1986 (“IRCA”). According to the Appeals Court, it is necessary to first determine if state law had been violated in the first place. The case was vacated and remanded.

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

HR Tip: Employees cannot decline FMLA leave even when a collective bargaining agreement says otherwise

In March 2019, the DOL issued an opinion letter that neither an employee nor an employer may decline FMLA leave when an eligible employee is absent for an FMLA-qualifying reason. The letter noted this is particularly true even if the employee wants the employer to delay the designation of FMLA leave.

Apparently, this created confusion in union environments where there is a collective bargaining agreement that allows the employee to use paid leave first and then use FMLA leave after paid leave is exhausted. In a new opinion letter , the DOL made it clear that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement.

The bottom line is that in all cases once the employer has sufficient information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave.

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

Seven ways to improve Workplace Health Promotion Programs for all-sized employers

While workplace wellness programs began as a niche industry, they eventually morphed into comprehensive programs for worksites of all sizes. They’re touted as an effective business strategy to improve the health and productivity of workers, reduce health care costs, attract new employees, and retain existing ones.

Studies of wellness programs have produced conflicting results. Some find that the programs are a good investment with a 3 -1 return, while others have found they may change certain behaviors, but don’t improve job performance. Although the result vary, there’s a common thread – utilization did not live up to expectations.

A recent study, “Availability of and Participation in Workplace Health Promotion Programs (WHPP) by Sociodemographic, Occupation, and Work Organization Characteristics in US Workers” by The National Institute for Occupational Safety and Health (NIOSH) found that just under half of employees have access to them and among those who do have access, just about half utilize them. The study found that although approximately 47 percent of workers have access to WHPPs, only 58 percent of those with access actually participate. That’s roughly one in every four workers.

Occupations such as farming, fishing, forestry, food preparation and serving, construction, and extraction had the lowest availability of WHPP’s and workers in these occupations were also the least likely to participate in the programs. Workers who worked less than 20 hours a week, worked regular night shifts, were paid by the hour, or worked for temporary agencies were also less likely to participate. Researchers also identified barriers that keep workers from participating, including time constraints, lack of awareness, low supervisory support, and perceived need, but noted such barriers vary by industry.

The report concludes that employers should gauge workers’ priorities before designing and implementing WHPPs to customize programs to their employees’ specific needs and maximize participation. Another recent survey by Future Workplace and View sought to identify which wellness perks were most important to workers and how these perks impact productivity.

The results were surprising. It was not fitness facilities or technology-based health tools that topped the list, but air quality and natural light. Air quality and light were the biggest influencers of employee performance, happiness and wellbeing. Only 1 in 4 of the 1,600 employees surveyed say the air quality in their office is optimal for them to do their best work and nearly one-half say the quality of air makes them sleepy. In the number three spot was water quality, followed by comfortable temperatures, then acoustics and noise levels.

Just as people want to have a personalized consumer experience, employees want to be able to customize their work environment – control the temperature, mask noise, have natural light and so on. It’s not as impossible as it sounds. Cisco, for example, has managed the acoustic levels in their space by creating a floor plan without assigned seating that includes neighborhoods of workspaces designed specifically for employees collaborating in person, remotely, or those who choose to work alone. Similar arrangements can be made for temperature and light.

Here are seven steps employers can take to improve their results:

  1. Make WHPPs employee-centric. Complement the workplace health assessment with a survey of your employees to determine their workplace wellness priorities and tailor or modify the program accordingly.
  2. Integrate WHPPs with workplace safety programs. The synergistic possibilities of integrating common safety issues such as work schedules, workplace culture, ergonomics, substance exposures, noise levels, fatigue, and so on with the wellness program are significant.
  3. Personalize as much as possible. Employees expect the ability to personalize their workspace. More workers expect the company that employs them to take their well-being into account in all aspects of work.
  4. Recognize that workplace wellness is more than physical health. Studies show that most worksite health programs focus on physical activity, nutrition, and stress management. Environmental factors such as air, light, temperature, and acoustics are overlooked.
  5. Recognize the challenge of changing human behavior. Personal behaviors, including health and safety, are very difficult to change. They are embedded in routines and habits. It’s going to take time, effort, and reinforcement and there will be setbacks. Employees who are cynical and are distrustful of their employer will not be committed.
  6. Give employees a sense of ownership. Much like a culture of safety, employees must buy into a culture of wellness. Consider a wellness committee from a cross-section of departments and employees to provide input and drive participation.
  7. Monitor employee satisfaction. While employers often struggle with measuring the ROI of WHPPs, common factors include health care costs, absenteeism, disability claims, and workers’ comp claims. It’s important to incorporate “soft” measures such as satisfaction and morale.

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

Things you should know

NSC offers free toolkit to fight opioid abuse

The National Safety Council (NSC) is offering a free toolkit to help employers address the opioid crisis. The Opioids at Work Employer Toolkit addresses warning signs of opioid misuse, identifying employee impairment, strategies to help employers educate workers on opioid use risks, drug-related human resources policies, and how to support employees struggling with opioid misuse.

Workplaces most common site of mass shootings: Secret Service report

In its second Mass Attacks in Public Spaces report, the Secret Service examined 27 incidents in 18 states that involved harming three or more people. Most occurred in workplaces (20) and were “motivated by a personal grievance related to a workplace, domestic or other issue.”

Worker participation key to preventing safety accidents: CSB

The U.S. Chemical Safety Board (CSB) published a new safety digest discussing the importance of worker participation to avoid chemical mishaps. The report outlines how the shortage of worker engagement was a factor in various incidents examined by the CSB.

2018 guidelines more effective in preventing carpal tunnel: NIOSH

Previous studies showed that the 2001 American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Value (TLV) for Hand Activity was not sufficiently protective for workers at risk of carpal tunnel syndrome (CTS) and led to a revision of the TLV and Action Limit in 2018. A new study compares the effectiveness of the 2018 and 2001 guidelines, concluding that the 2018 revision of the TLV better protects workers from CTS.

NIOSH notes that many workers are exposed to forceful repetitive hand activity above the guidelines and urges compliance with the updated guidelines.

First aid provisions in workers’ compensation statutes and regulations: NCCI

The National Council on Compensation Insurance, Inc. (NCCI) has compiled state statutes and regulations related to First Aid in Workers’ Comp. The document does not include review or analysis of the statute or regulation, of relevant caselaw, or other guidance and is subject to change.

Mandatory treatment guidelines may lead to fewer back surgeries

States with mandatory use of medical treatment guidelines in utilization review, reimbursement and dispute resolution may lead to lower rates of lumbar decompression surgery among workers with low back pain, according to a new report by the Workers Compensation Research Institute.

The 27 states in the study include Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

Engineered-stone fabrication workers at risk of severe lung disease

Exposure to silica dust from cutting and grinding engineered stone countertops has caused severe lung disease in workers in California and three other states. The CDC released information on cases in Washington, California, Colorado and Texas in an article published in the agency’s Morbidity and Mortality Weekly Report. According to the article, 18 cases of silicosis were identified in the four states from 2017 – 2019. Two of those workers died from the illness.

Campbell Institute offers a guide on how to get started with leading indicators

An Implementation Guide to Leading Indicators is intended to help employers initiate the process when implementing leading indicators for the first time.

Annual wind energy safety campaign focuses on hands

The American Wind Energy Association will offer several free resources in October as part of its annual month-long safety awareness campaign aimed at helping protect renewable energy workers from on-the-job injuries. The theme of the 2019 campaign is Take a Hand in Safety: Protect These Tools.

NIOSH releases international travel planner for small businesses

The 36-page travel planner is a new resource intended to help small-business owners ensure the health and safety of employees who travel internationally.

State News

California

  • Governor Newsom has signed two bills relating to workers’ comp. A.B. 1804 will require the immediate reporting of serious occupational injury, illness, or death to the Department of Industrial Relations’ Division of Occupational Safety and Health. A.B. 1805, modifies the definition of “serious injury or illness” by removing the 24-hour minimum time requirement for qualifying hospitalizations, excluding those for medical observation or diagnostic testing, and explicitly including the loss of an eye as a qualifying injury for the new reporting requirements. Both bills will take effect Jan. 1, 2020.
  • Legislators approved a landmark bill that requires companies like Uber and Lyft to treat contract workers as employees. The Governor is expected to sign it after it goes through the State Assembly. Uber, Lyft, and DoorDash have vowed to fight it.
  • Insurance Commissioner Ricardo Lara approved the Workers’ Compensation Insurance Rating Bureau’s annual regulatory filing that will, among other things, lower the threshold for experience rating.
  • The Division of Workers’ Compensation (DWC) announced that the temporary total disability rate will increase 3.8% next year, not more than 6% as the agency previously announced.
  • The DWC has issued an order modifying its evidence-based treatment guidelines for work-related hip and groin disorders. Effective October 7, 2019, the changes involved two addendums to the workers’ compensation medical treatment utilization schedule and incorporate the American College of Occupational and Environmental Medicine’s most recent hip and groin disorders guidelines.
  • The DWC launched an updated free online education course for physicians treating patients in the workers’ compensation system.

Illinois

  • Beginning July 1, 2020, hotels and casinos will be required to have anti-sexual harassment policies that include, for certain workers, access to a safety button or notification device that alerts security staff under the newly created Hotel and Casino Employee Safety Act.
  • Gov. J.B. Pritzker signed legislation requiring freight trains operating in the state to have at least two crew members, challenging the Federal Railroad Administration’s recent effort to prevent states from regulating train crew sizes. Scheduled to go into effect January 1, 2020, S.B.24 is to be known as Public Act 101-0294.

Minnesota

  • Department of Labor and Industry has posted new workers’ compensation medical fee schedules that took effect Oct. 1. The schedules update reimbursement for ambulatory surgery centers, hospital inpatient, and outpatient services, and provide new resource-based relative values for providers.
  • The workplace fatality rate in Minnesota grew to 3.5 per 100,000 full-time workers in 2017, the highest rate in at least a decade, according to new data from the Safety Council. Almost one in three fatal workplace injuries involved driving a vehicle.

North Carolina

  • The Industrial Commission announced that the maximum for temporary and permanent total disability will go from its current level of $1,028 to $1,066, starting Jan. 1.

Pennsylvania

Tennessee

  • New rules for medical payments went into effect September 10, 2019. Not only are reimbursement rates increasing for providers and hospitals, but the conversion factor may now “float” or follow Medicare’s changes, rather than being fixed.
  • The NCCI is recommending a 9.5% decrease in loss costs for the voluntary market in 2020, a figure that’s half of what the rating organization recommended for this year.

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

OSHA’s Top 10 violations: three action steps for employers

For the ninth consecutive year, Fall Protection – General Requirements is the most frequently cited standard, OSHA announced at the 2019 National Safety Council Congress & Expo. The rest of the preliminary list of the Top 10 violations for fiscal year 2019 also remained largely unchanged from FY 2018, with one minor change. Lockout/Tagout, which ranked fifth in FY 2018, advanced to No. 4, trading places with Respiratory Protection.The data, which covers violations cited from October 1, 2018 through August 31, 2019, is preliminary, and therefore, the numbers may change. However, the ranking is likely to remain consistent when the final numbers are released later this year.

Here are the top 10 violations:

  1. Fall Protection (construction) – General Requirements (1926.501) – 6,010 violationsCommon violations included failure to provide fall protection near unprotected sides or edges and on both low-slope and steep roofs. Roofing, framing, masonry and new single-family housing construction contractors were among the most frequently cited. Although the fall protection standard was updated in 2016, some experts suggest it will take several years for employers to get the necessary facility updates into their budgetary cycle.
  2. Hazard Communication (1910.1200) – 3,671 violationsConsidered low-hanging fruit for inspectors, hazard communication has been #2 for several years. Lack of a written program, inadequate training, and failure to properly develop or maintain safety data sheets (SDSs) are common citations. Auto repair facilities and painting contractors were among the industries that received many hazard communication citations.
  3. Scaffolding (construction) – General Requirements (1926.451) – 2, 813 violationsMasonry, siding, and framing contractors are the most commonly cited employers for this violation. Lack of proper decking, failure to provide guardrails where required, and failure to ensure that scaffolds are adequately supported on a solid foundation are common violations.
  4. Lockout/Tagout (1910.147) – 2, 606 violationsEmployers cited under this standard failed to establish an energy control procedure, did not train employees in proper lockout/tagout procedures, failed to conduct periodic evaluations of procedures, and failed to use lockout/tagout devices or equipment. Plastics manufacturers, machine shops, and sawmills were frequently cited.
  5. Respiratory protection (29 CFR 1910.134) – 2,450 violationsCitations related to failure to fit test, establish a program, and medically evaluate employees who wore respirators were common violations issued. Auto body refinishing, painting contractors, masonry contractors, and wall covering contractors received many citations.
  6. Ladders (construction) (1926.1053) – 2,345 violationsLadders continued to be a common violation in the roofing, siding, framing and painting trades. Frequent violations include, ladders with structural defects, failure to have siderails extend three feet beyond a landing surface, using ladders for unintended purposes, using the top rung of a step ladder, and ladders with structural defects.
  7. Powered Industrial Trucks (1910.178) – 2,093 violationsForklift violations dominated this standard, including deficient or damaged forklifts that were not removed from service, failure to safely operate a forklift, operators who had not been trained or certified to operate a forklift, and failure to recertify forklift drivers and evaluate every three years. Violations were widespread across many industries, but particularly prominent in warehousing and storage facilities and fabricated and structural metal manufacturing.
  8. Fall Protection (construction) – Training Requirements (1926.503) – 1,773 violationsViolations of this standard include failing to provide training to each person required to receive it, failure to certify training in writing, inadequacies in training leading to the failure of retention by the trainee, and failing to retrain in instances where the trainee failed to retain the training content.
  9. Machine Guarding (1910.212) – 1,743 violationsWhile cited in many industries, machine shops and fabricated metal manufacturing saw many citations for failing to ensure that guards are securely attached to machinery, improper guarding of fan blades, and failure to properly anchor fixed machinery.
  10. Personal protective and lifesaving equipment (construction) – eye and face protection (29 CFR 1926.102) – 1,411Appearing on the list for the first time in FY 2018, this standard includes failing to provide eye and face protection where employees are exposed to hazards from flying objects, failing to provide protection from caustic hazards, gases, and vapors, and failing to provide eye protection with side protection. Violations were concentrated in the housing industry, with roofers, house framers and other contractors cited often.

Three action steps for employers

With little variation from year-to-year, this list is a reminder to employers that the same violations are putting employees at risk and costing employers thousands of dollars in citations. Here are three steps to take:

  1. Drill down to your industryEmployers can drill down even further and look at the most frequently cited Federal or State OSHA standards by industry for a specified 6-digit North American Industry Classification System (NAICS) code. If your facility is inspected, there’s a very good chance it will include these issues.
  2. Be strategicA common approach is to conduct walk throughs, which can be helpful to identify new or previously missed hazards and failures in hazard controls. However, this is reactionary, not strategic. OSHA states, “an effective occupational safety and health program will include the following four main elements: management commitment and employee involvement, worksite analysis, hazard prevention and control, and safety and health training.” Having a risk management approach is the best possible defense.
  3. Continually reinforce training and commitment to safetyLearning does not start and stop with training. Safe practices have to be practiced and applied to be lasting. While most workers know not to stand on the top rung of a step ladder, it happens because they are in a hurry, careless, or not paying attention. Signage, toolbox talks, digital reminders all help; but most important is effective leadership and employee engagement. When managers enforce the safety rules and stand behind them 100%, workers understand it’s important to their health and well-being and are empowered to take ownership of their own and other’s safety.Further, employee complaints triggered 41% of the unprogrammed inspections and over 23% of all inspections. Employees who feel safe at work and believe the employer cares about their safety, are less likely to file a complaint.

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