Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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

Things you should know

Opioid abuse rises with length of prescription

According to a study by the U.S. Centers for Disease Control and Prevention, the risk of opioid abuse rises with lengthy prescriptions. If received a one-day prescription, 6% were still on opioids a year later; when prescribed for 8 days or more, this rises to 13.5%; when prescribed for 31 days or more, it increases to 29.9%.

Blacklisting rule repealed

President Trump repealed the so-called “blacklisting rule” that required federal contractors to disclose labor violations. The executive order had required employers bidding for federal contracts worth at least $500,000 to disclose any of 14 violations of workplace protections during the previous three years.

FMCSA will not reinstate overnight rest regulations for commercial drivers

The Federal Motor Carrier Safety Administration’s (FMCSA) regulation that required CMV (Commercial Motor Vehicle) drivers to take breaks in the hopes of preventing driver fatigue has been suspended since 2014 so that further research could be done to understand the efficacy of the program. A study from the Department of Transportation found that stricter mandated breaks did not do much to reduce driver fatigue or improve safety. Thus, the rule will not come out of suspension.

Study reveals occupations with sleep deprived workers

If your industry is health care, food service, or transportation, your workers are probably not getting adequate sleep, according to a study published March 3 in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. Workers who averaged fewer than seven hours of sleep per night were classified as having short sleep durations. Occupation groups that failed to average seven hours of sleep included:

  • Communications equipment operators: 58 percent
  • Rail transportation workers: 53 percent
  • Printing workers: 51 percent
  • Plant and system operators: 50 percent
  • Supervisors, food preparation and serving workers: 49 percent
  • Extraction workers: 45 percent
  • Nursing, psychiatric and home health aides: 43 %

The American Academy of Sleep Medicine and the Sleep Research Society recommend that adults 18 to 60 years old get at least seven hours of sleep every day. A lack of sleep can contribute to cardiovascular disease, obesity, diabetes, depression, and other health issues, as well as contribute to more injuries on the job.

NIOSH announces free health screenings for coal miners

A series of free, confidential health screenings will be available for coal miners as part of the NIOSH Coal Workers’ Health Surveillance Program. The first set of screenings will take place from March 26 to April 15 in coal mining regions throughout Alabama. The second set will occur from May 10 to May 31 throughout Indiana and Illinois. Finally, testing will take place from July 30 to Aug. 26 throughout Eastern Kentucky.

NIOSH updates mine hazard assessment software

Mine operators and workers now have access to updated hazard assessment software from NIOSH. According to the agency, EVADE 2.0 – short for Enhanced Video Analysis of Dust Exposures – offers a more comprehensive assessment of the hazards miners face by pulling together video footage and exposure data on dust, diesel and other gases, as well as sound levels.

Study: PT as effective as surgery for carpal tunnel

Physical therapy is as effective as surgery in treating carpal tunnel syndrome, according to a new study published in the Journal of Orthopaedic & Sports Physical Therapy. Researchers in Spain and the United States report that one year following treatment, patients with carpal tunnel syndrome who received physical therapy achieved results comparable to outcomes for patients who had surgery. Further, physical therapy patients saw faster improvements at the one-month mark than did patients treated surgically.

When hospital inspectors are watching, fewer patients die

A recent report in the New York Times cited a study in JAMA Internal Medicine which found death rates dropped when inspectors were onsite. In the non-inspection weeks, the average 30-day death rate was 7.21 percent. But during inspections, the rate fell to 7.03 percent. The difference was greater in teaching hospitals – 6.41 percent when the inspectors were absent, and 5.93 percent during survey weeks. While the difference may seem low, an absolute reduction of only 0.39 percent in the death rate would mean more than 3,500 fewer deaths per year.

Although the reasons for the effect are unclear, it was suggested when docs are being monitored, diligence ramps up.

Wearing eye protection can prevent 90 percent of work-related eye injuries, experts suggest

Ninety percent of on-the-job eye injuries could be avoided if workers wore eye protection, according to the American Academy of Ophthalmology (AAO). AAO offers the following tips for avoiding workplace eyestrain or injury:

  • Wear protective eyewear appropriate for the type of hazard you may encounter
  • Position your computer monitor 25 inches away
  • Follow the 20-20-20 rule: Every 20 minutes, take a break by looking at an object 20 feet away for 20 seconds
  • Reduce glare on your cell phone or digital device
  • Adjust environmental lighting near your workstation

 

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

OSHA watch

Silica safety standard for construction industry delayed

The crystalline silica standard that applies to the construction industry, which was scheduled to go into effect June 23, 2017, has been delayed until September 23, 2017.

Effective date of new beryllium rule delayed again

Employers will have some additional time to comply with the new beryllium rule as the effective date has been extended 60 days to May 20, 2017. The extended effective date will not affect compliance dates.

Website for electronic submission of injury and illness records delayed – employers advised to sign up for email notification

The online reporting system for the electronic submission rule of injury and illness data, which became effective January 2017, has not yet been completed. While the site was planned for February 2017, there is no date or estimate for the reporting site to become live.

Employers are advised to sign up to receive recordkeeping reminders as well as updates on electronically submitting injury and illness logs, and if, when, and how to do it. This year’s deadline is July 1, 2017.

Severe injury reporting stats

The severe reporting rule, which went into effect in 2015, mandated that all workplace fatalities be reported within eight hours and added a new requirement that employers report the hospitalization of one employee, rather than three or more as previously required, as well as all amputations and loss of an eye within 24 hours. In 2016, employers reported 10,887 severe injuries, up from 10,395 in 2015, with the increase driven mostly by a rise in hospitalization reports.

The agency responded to 73% of the hospitalization reports and 51% of the amputation reports filed last year by asking employers to conduct their own incident investigations – known as rapid response investigations – and propose remedies to prevent future injuries.

Overturn of Volks Rule expected

A disapproval resolution of the controversial “Volks” rule, already approved by the House of Representatives, was adopted by the U.S. Senate and is expected to be signed by President Trump. The so-called “Volks” rule increased the threshold for citing employer violations from six months to up to five years.

Campaign to address fatalities in Kansas, Missouri and Nebraska launched

The recently launched Safe and Sound Campaign is designed to make companies more aware of the services available as well as address some common hazards that have led to fatalities, including confined space and struck by incidents. Twelve fatality inspections were conducted in Kansas, Missouri and Nebraska from Oct. 1, 2016 through February 1, 2017, up from seven for the same period last year and there was a significant increase in fatalities associated with confined space entry and trenching and excavating.

New Regional Emphasis Program focuses on crane safety

The OSHA Region VI office in Dallas, Texas, established a Regional Emphasis Program (REP) covering employees in the construction industry who perform crane operations. The program conducts safety inspections of workplaces in Texas, Arkansas, Louisiana, Oklahoma and sites in New Mexico that are under federal OSHA jurisdiction.

$afety Pays Program updated with recent NCCI information

The $afety Pays Program, which helps employers understand the impact of workplace injuries and illnesses on their company’s profitability, has been updated with the most recent NCCI data. This program uses a company’s profit margin, the average costs of an injury or illness, and an indirect cost multiplier to project the amount of sales a company would need to cover those costs.

California Workplace Violence Standard goes into effect April 1

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.

 

Enforcement notes

California

Aftermath of the CA Soberanes Fire brings Cal/OSHA citations and penalties to two private contractors

Czirban Concrete Construction of Madera County was cited for five workplace violations and fined $20,000 for an incident that resulted in the death of a bulldozer operator. The largest fine was for failure to make sure the operator was wearing a seat belt. Industrial Defense Development of Tuolumne County was fined $6,000 for an incident where an employee suffered serious injuries when the water tender he was operating rolled over and down a hill. Its largest fine was for not reporting the injury.

Georgia

Hitachi Automotive Systems Americas of Monroe cited for numerous violations

Inspected in response to a complaint, Hitachi faces numerous violations, including deficiencies in the company’s hearing protection and hazard communication programs, as well as an emergency eye wash station that wasn’t installed. Citations were also issued to the staffing agency, which supplied the temporary workers.

Kansas

Contract worker dies at Goodyear’s Topeka plant just weeks after company reached $1.75 million settlement in earlier fatality case

A 61-year-old contract worker was fatally injured at Goodyear Tire & Rubber Co.’s Topeka manufacturing facility. The fatality came just weeks after Goodyear Tire reached a $1.75 million settlement after four fatalities occurred at its Danville, Va. plant over the course of a year.

Michigan

Michigan OSHA cites Dunn Paper Company for machine guarding and other violations

MIOSHA inspectors determined that the company failed to adequately protect workers from amputation hazards posed by cooling fan blades, spinning flywheels and belts and pulleys. Other citations included failing to provide fall prevention barriers around an open-sided elevated platform and open holes, and not properly training workers on the safe use of rented aerial work platforms.

Tennessee

Nissan North America fined after worker death

After the maintenance crew of the car manufacturer repaired the roller drive motor for an elevator, which is designed to move car seat pallets from one conveyor system to another, it neglected to place the machine guarding back properly when checking whether the elevator was functioning correctly. An employee’s head was crushed between the counterweight, which weighed 1,275 lbs., and the top of the metal guarding system.

The company faces $29,000 in fines for failure to perform routine equipment inspections and a Repeat-Serious violation because lockout/tagout devices were not replaced once maintenance was completed.

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

OSHA watch

Beryllium standard delayed

The beryllium standard, published 11 days before President Trump’s inauguration, is one of the rules delayed 60 days by the Trump administration’s Jan. 20 regulatory freeze and review instructions. Federal agencies are to send no new rules to the Federal Register, withdraw rules sent but not yet published, and delay the effective date by 60 days of any rule published that has not taken effect.

The rule, which was to go in effect March 10, reduces the eight-hour permissible exposure limit from the previous level of 2.0 micrograms per cubic meter to 0.2 micrograms per cubic meter. Above that level, employers must take steps to reduce the airborne concentration of beryllium. It also requires additional protections, including personal protective equipment, medical exams and other medical surveillance and training and establishes a short-term exposure limit of 2.0 micrograms per cubic meter over a 15-minute sampling period.

Fines increase

The penalty increases, effective Jan. 13, mean that the maximum fine faced by employers for willful and repeat violations will rise to $126,749, while the maximum penalties for serious and other-than-serious citations will increase to $12,675.

See related article OSHA fines increase and some startling facts about them in this edition.

Recommended best practices to guard against retaliation

Recommended practices to guard against retaliation against employees reporting workplace safety concerns were recently released.

The recommendations provide examples of what anti-retaliation training should entail; provides helpful guidance to employers by outlining five key elements of an effective anti-retaliation program: management leadership, commitment and accountability; a system for listening to and resolving employees’ safety and compliance concerns; a system for receiving and responding to reports of retaliation; anti-retaliation training for employees and managers; and program oversight.

The recommendations are advisory only and do not carry the weight of regulations.

Recent fines and awards

Florida

  • Jasper Roofing Contractors and its CEO face a lawsuit after a safety manager alleges retaliation for cooperating with a safety investigation.

Georgia

  • Atlanta-based paper, plastic recycler, Nemo Plastics Inc. was cited with 21 serious health and safety violations for exposing workers to fire, explosion, and machine guarding hazards. Proposed penalties are $133,443.

Illinois

  • A Chicago metal container manufacturer, B-Way Corp, faces more than $81,000 in penalties after a third worker suffered an amputation injury in 18 months. Investigators found the company did not properly install the machine’s safety guards, nor properly train workers in lockout/tagout procedures.
  • Belleville roofing contractor, Robert Barringer III, which operates as Barringer Brothers Roofing, is facing $214,782 in proposed penalties for exposing workers to fall hazards and has been placed in the Severe Violator Enforcement Program.
  • Winnetka-based Redhawk Roofing was cited for four repeated safety violations when workers roofing a residential home were exposed to fall hazards and faces $63,494 in proposed penalties.
  • A Park Ridge masonry contractor, Polo Masonry Builders Inc., was cited with two repeated and eight serious safety and health violations after inspectors observed the workers atop a four-story building. The company faces $77,606 in proposed penalties.
  • Under terms of a settlement agreement, a pipefitter, previously employed by John Deere, will receive a total of $204,315 in back wages and “front pay” and $70,685 in other damages. The lawsuit alleged the pipefitter was terminated from the Moline facility after reporting unsafe working conditions and filing a complaint after the company failed to correct one of the unsafe conditions.

Massachusetts

  • Bellingham-based, John’s Used Autos and Parts LLC, faces $27,157 in proposed penalties for failing to provide adequate training and safeguards to protect workers, following the death of an employee when he was struck in the head by a chain come-a-long device as he attempted to inflate and mount a multi-piece rim wheel.

New York

  • Inspected in response to a complaint, The Landtek Group Inc., a general contractor faces $197,000 in fines for exposing workers to excavation hazards at a high school construction site.

Pennsylvania

  • BHC Northwest Psychiatric Hospital LLC, doing business as Brooke Glen Behavioral Hospital, of Fort Washington faces fines of $32,000 for exposing employees to workplace violence and other hazards. The hospital was cited under the General Duty Clause.
  • Pennsylvania-based SanCasT faces $235,879 in fines at its Ohio casting and foundry facility for machine and fall hazards found during a follow-up inspection.

Wisconsin

  • Monroe Clinic, Inc., a local medical clinic, failed to tell maintenance workers they were being exposed to hazardous asbestos material – which the company identified in 2008 – and did not provide workers with protective equipment. The clinic faces $261,890 in proposed penalties.
  • Green Bay manufacturer, Bay Fabrication, faces more than $219,000 in proposed penalties for failure to properly guard machines, after two workers suffered severe injuries within 10 days.
  • A Marathon-based lumber company, Menzner Lumber and Supply, faces fines of $260,113 after a worker suffered a partial amputation of his finger because the company lacked adequate safeguards and workers were not properly trained in isolating energy to machines.
  • An investigation prompted by the death of a 17-year-old worker, two weeks after starting the job at a Columbus metal fabrication facility, G.D. Roberts & Co. Inc., has resulted in multiple safety and health violations and proposed penalties of $119,725.

Detailed descriptions of the citations above and other OSHA citations can be found here.

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

Top 10 Workplace Trends in 2017

Performance Management tops the list

The Society for Industrial and Organizational Psychology (SIOP) asked its members – who study workplace issues of critical relevance to business, like talent management, coaching, training, organizational development, and work-life balance – about their predictions for 2017. Topping the list of top ten is the changing nature of performance management.

While much has been written about companies ending annual performance reviews and ratings, it’s unclear what will take its place. The group predicts, “Organizations can expect to rely less on once-a-year performance appraisals and more on frequent feedback and coaching to put the focus on improving performance. Strategies, such as continuous performance management, will lead to a greater emphasis on real-time feedback, daily manager-employee relationships and an increased need for managers to acquire the skills to coach and deliver timely feedback to employees.”

For the Top 10 Workplace Trends for 2017

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

Deadly Skyline: An annual report on construction fatalities in New York State

According to the report “Deadly Skyline: An Annual Report on Construction Fatalities in New York State,” from the New York Committee for Occupational Safety and Health, 464 construction workers died in New York between 2006 and 2015, and fatality rates have trended up 40% between 2011 and 2015. Falls are the leading cause of fatalities, accounting for 49% of construction deaths in the state and 59% in the city.

“Employing approximately (4%) of the state’s workforce, the construction industry sees one-fifth of workplace fatalities,” the report said. In addition, OSHA found safety violations at two-thirds of the site inspections it conducted in New York in 2014. A high percentage of sites where fatalities occurred – 87% in 2014 and 90% in 2015 – were found to have safety violations when inspected by OSHA. The report also noted non-union construction sites were especially dangerous for workers. Eighty percent of construction fatalities occurred at non-union sites in 2014, and 74% of fatalities were at non-union sites in 2015.

Latino workers also face a disproportionate risk of dying in construction incidents; 57% of construction workers who died in 2015 were Latino even though they comprise only 30% of the construction workforce.

Employer takeaway: Construction is the most dangerous industry in the country with the highest number of fatalities. In addition to tougher legislation and higher penalties, NYCOSH’s recommends:

  • require OSHA’s 10-Hour Construction training program or equivalent training for all construction workers as well as apprenticeship programs on large sites
  • preservation of New York’s Scaffold Safety Law, which holds building site owners and employers liable for worker injuries and deaths resulting from unsafe conditions at elevated worksites
  • expanded monitoring and enforcement of construction sites, including criminal prosecution of contractors, and revocation of licenses and permits for contractors convicted of a felony related to a worker fatality

 

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

Pressure to meet earnings expectations negatively impacts worker safety

New research in the Journal of Accounting and Economics, “Earnings expectations and employee safety” examined the relation between workplace safety and managers’ attempts to meet earnings expectations. The finding: significantly higher injury/illness rates in firms that meet or just beat analyst forecasts compared to firms that miss or comfortably beat analyst forecasts.

Changes in operations or production, specifically increased workloads and abnormal reductions of discretionary expenses, that are meant to increase earnings impacted the number of workplace injuries. The relation between benchmark beating and workplace injuries is stronger when there is less union presence, when workers’ compensation premiums are less sensitive to injury claims, and among firms with less government business.

Employer takeaway: When pressure is applied on managers to meet earning expectations, they can detract from safety by increasing workloads, hours, speed of workflow or cutting corners. Contrast these findings to a study published in the January 2016 issue of the Journal of Occupational and Environmental Medicine (JOEM), that found 17 publicly held companies with strong health and/or safety programs significantly outperformed other companies in the stock market. Two additional studies also found that financially sound, high-performing companies invest in employee health and safety. Rather than deviate from normal business practices to meet earnings expectations in the short-term, these companies have an ongoing, long-term commitment to a healthy and safe workforce that tangibly contributes to the bottom line.

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

Top 10 Non-Fatal Work Related Injuries

Overexertion tops list of serious, nonfatal work injuries for third straight year – Liberty Mutual

The 2017 Liberty Mutual Workplace Safety Index uses Liberty Mutual workers’ comp claims data, as well as information from the U.S. Bureau of Labor Statistics and the Washington-based National Academy of Social Insurance, to determine the costliest workplace injuries and those that result in employees missing six or more days of work.

For 2014, the injuries cost employers more than one billion dollars a week, or close to $60 billion a year.

The top ten include:

  1. Overexertion ($13.79B) 23%
  2. Falls on same level ($10.62B) 17.7%
  3. Falls to lower level ($5.50B) 9.2%
  4. Struck by object or equipment ($4.43B) 7.4%
  5. Other exertions or bodily reactions ($3.89B) 6.5%
  6. Roadway incidents involving motorized land vehicle ($3.70B) 6.2%
  7. Slip or trip without falling ($2.30B) 3.8%
  8. Caught in or compressed by equipment or objects ($1.95B) 3.3%
  9. Struck against equipment or object ($1.94B) 3.2%
  10. Repetitive motions involving micro-tasks ($1.81B) 3.0%

While overexertion, which includes lifting, pushing, pulling and other actions involving objects did decrease somewhat from 2013, falls on the same level and roadway incidents continue to trend upward.

Employer takeaway: Many employers have done a good job of implementing safety measures, adopting automation and new processes that reduce injuries, and fostering a strong safety culture, but injuries still happen. Understanding injury causation is a complex process. Factors ranging from human error, unsafe behavior, stress, and inadequate skills to unsafe conditions, insufficient training, faulty equipment, lack of supervision and so on come into play. Analyzing data to discover trends and problem spots that are driving the serious workplace injuries can help develop safety programs that target those causes. Moreover, employers have found success by increasingly involving employees in safety leadership, encouraging workers to be the “eyes and ears” of safe working practices, including the authority to stop work without fear of repercussion.

Related article: Overexertion accounts for more than 25% of the top ten injury costs: Liberty Mutual WorkComp Adv!sory – December 2015

 

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

OSHA watch

Court denies preliminary injunction on new rules on drug testing, retaliation claims, and accident reporting

The Federal District Court has denied industry’s request to enjoin new rules on mandatory post-accident drug screenings and safety incentive programs, workplace retaliation, and requiring employers to post OSHA logs electronically. (see the article, OSHA’s revised recordkeeping rule in effect: are you ready?)

New rule stresses maintaining injury and illness records for five years

Effective Jan. 18, 2017, a new final rule clarifies that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years. The U.S. Circuit Court of Appeals rejected this position in 2012 and some still argue the continuing obligation does not exist, but it is a long-held agency stance.

Update to construction safety guidelines

Recommended Practices for Safety and Health Programs in Construction is an effort to help small and medium-sized construction businesses improve workplace safety. The practices are advisory and do not establish legal obligations.

Add worker safety and health to sustainability plans

A new white paper documenting a link between workplace safety and sustainability calls for safety to be fully integrated into sustainability initiatives.

Final rule for handling retaliation complaints in the automotive industry

A final rule establishing procedures and time frames for handling employee retaliation complaints under the Moving Ahead for Progress in the 21st Century Act (MAP-21) became effective Dec. 14, 2016.

Recent fines and awards

Florida

  • Four contractors, Southern Chills Inc., Capri Construction Corp., SB Painting & Waterproofing Inc., and Brothers Carpentry Corp., received eight citations when a worker died after falling through an unprotected floor opening while performing punch-list work at a housing development in Miami. Combined, the four contractors face $91,536 in penalties.

Illinois

  • Molinee-based Deere & Co. has agreed to pay a former employee about $275,000 to settle complaints it violated the anti-retaliation provisions after terminating an employee who reported unsafe work conditions.
  • Just six weeks after a machine amputated a maintenance worker’s left hand at Kerry’s, Inc. Melrose Park bread products facility, the company reported a second worker’s right forearm suffered multiple fractures as he cleaned another machine. Proposed penalties are $86,942 for allowing employees to service machinery without isolating operating parts.
  • Spotted in a drive-by inspection, Joiner Sheet Metal & Roofing of Greenville faces fines of $61,721 for failing to provide fall protection.
  • JW Construction and Plastering faces fines of $80,741 for failure to provide gloves, goggles, fall protection and protection from silica hazards.

Massachusetts

  • A Dudley packaging firm, Shield Packaging Co. Inc., and two temporary agencies, Leominster-based ASI Staffing Group Corp. and Worcester-based Southern Mass Staffing, face a total of $338,000 for failure to call 911 when a temporary employee was seriously injured and for not providing the required training.
  • An employee of Ned Stevens Gutter Cleaning and General Contracting fell nine feet from a garage roof in Lexington and the company is facing fines of $45,500 for lack of fall protection.

Michigan

  • Inspected in response to an employee complaint, Ypsilanti automotive exhaust component manufacturer, Bosal Industries Georgia Inc., received 19 citations and faces fines of $265,600.
  • Warren-based Central Transport L.L.C. will pay $265,400 in penalties as a part of a settlement agreement that commits the company to improving forklift safety at more than 100 terminals in 26 states.

Minnesota

  • Berwald Roofing paid $113,200 and Mortenson Construction paid $34,300 in a settlement after an August 2015 fatality in which an employee fell from the roof of U.S. Bank Stadium.

Missouri

  • A federal court order allowed investigators to respond to complaints of unsafe working conditions at a sheet metal manufacturing facility, Hammond Sheet Metal, which operates as Barrington Manufacturing Corp in El Dorado Springs. Proposed fines are $138,430 for more than a dozen alleged violations relating to chemical and machine hazards.

New York

  • A Queensbury manufacturer, RWS Manufacturing Inc., failed to verify that it corrected previous violations and faces penalties of $197,820 for failure to abate and new and reoccurring hazards.

Pennsylvania

  • A Plymouth Meeting contractor, Vanilson Da Silva, doing business as Real Contractors LLC, has been fined $87,000 after a compliance officer observed workers exposed to fall hazards.
  • The Doylestown campus of Universal Health Services, a behavioral health facility, was fined $36,701 for failing to protect workers from assaults by patients, among other issues.
  • The sexual assault of an employee of Epic Health Services resulted in a citation for failure to protect employees from workplace violence. Proposed fines are $98,000.

Wisconsin

  • The death of a 51-year-old chemical technician at Crystal Finishing Systems Inc. in Mosinee results in fines of $171,169 for improper machine guarding, inadequate PPE, and failure to properly train workers.
  • Alliance Laundry Systems faces fines of $124,709 after a 65-year-old-employee’s right middle finger tip was amputated, the third employee who suffered an amputation in the past year.

Detailed descriptions of the citations above and other OSHA citations can be found here.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.PremiumReductionCenter.com

Award-winning employers’ successful workers’ comp strategies

Risk & Insurance’s Teddy Awards recognize excellence in workers’ compensation risk management that reduces the number and cost of injuries to workers in the for-profit and nonprofit sectors. This year’s winners include:

Hampton Roads Transit – a public transportation agency

Problem: driver accidents, passenger violence, and overexertion. Claims system had been doubling annually with little accountability built into it. There was a pressing need to change the safety perception among workers.

Solution: a complete overhaul of their workers’ compensation and safety programs.

  • Surveyed employees and learned they did not feel they could talk openly about safety issues.
  • Conducted meetings with safety departments, mechanics, supervisors and union representatives and, ultimately, created a task force. Established new policies and procedures, including safety videos, to reinforce the safety message. Trained supervisors how to communicate the safety message.
  • Marketed the light duty program to managers. Made managers aware of how light-duty works and the variety of positions available to them. For example, since the bus drivers know the routes, they could help with customer service.
  • Hosts an annual workers’ compensation open house with case managers, doctors and workers’ comp attorneys to show them the work environment and provide them with a binder of all positions, including a list of all the restrictions they can accommodate.
  • Saw a 98 percent decrease in lost-time claims frequency, a 94 percent decrease in average number of days lost per lost-time claim, a 48 percent decrease in frequency of injuries and a 78 percent decrease in total incurred costs per claim.

 

Harder Mechanical Contractors – a specialty mechanical contractor

Problem: injured workers were getting lost in the mix among their multiple locations without receiving the proper attention. Exposures include dangerous equipment and changing environments.

Solution:

  • Involved workers to help create return-to-work duties. Performed a review involving the employees to help determine their employees’ skills that would match them to modified duty jobs. This helped to build trust and also helped the company better understand their workforce.
  • Used sparingly, employees write a letter to their families about their commitment to safety when the company sees indications of safety concerns.
  • Created an atmosphere of trust. Communicate openly to employees why it benefits them to remain on modified duty. Empower workers to stop work when they feel the environment has become unsafe.
  • Have logged 17 million hours without a lost-time claim.

 

Excela Health – health care network

Problem: Blood-borne pathogens, combative patients and lift injuries. Injured hospital workers were going to their co-workers in the emergency room for care.

Solution:

  • Decreased use of emergency room for employee injuries that do not require emergency care. Created a nurse on-call program to replace the costly habit. This took a lot of time and effort to change behaviors, but has become the most cost-effective program.
  • De-escalated workplace violence through training. Created a video teaching mental mapping, using the run, hide, fight method, which is hard for healthcare workers, who want to stick around and care for people. Showed employees where they would run, where they would hide or what they would use to fight. This is made part of new-hire orientation and is also reinforced on a monthly basis to the entire workforce.
  • Started a continuous improvement focus on safety. The first thing employees discuss in their employee meetings is safety. Employees are empowered to address the safety problems immediately through a “just do it” form. Once the project has been completed to fix the safety concern, they communicate the solution company-wide. They measure results and have received over 3,000 safety suggestions.
  • Excela Health reduced workers’ comp claims costs by hundreds of thousands of dollars over the past eight years.

 

Target – major retailer and distributor

Problem: a company-wide reorganization in March 2015 left the risk management department with fewer team members, not utilizing its third-party vendors in the most efficient way, and broad safety and work comp challenges due to size and logistics.

Solution:

  • Rebuild the expertise of the safety and workers’ comp team by cross-training so everyone had a well-rounded understanding of risks on both the retail and the distribution side. Made greater use of predictive analytics to streamline and expedite its processes. Dove deeper into claims data to pinpoint where injuries are happening.
  • Turned to professional associations like the American Society of Safety Engineers and the Minnesota Safety Council to stay updated on the latest guidelines and training.
  • Training programs for powered equipment were simplified and adjusted to allow trainers and supervisors to control when an employee is ready to be certified and move on to independent work.
  • Developed a formal advocacy-based program, The Workers’ Comp Assistance Center. A Center employee, not the claims adjuster, contacts injured employees to say we care and we’re there for them, to familiarize them with the workers’ comp process and answer questions. Return-to-work coordinators are another critical component of the advocacy approach, and the retailer’s return-to-work program is a differentiator in the industry.

 

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.PremiumReductionCenter.com