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

Seven in ten employers impacted by employee prescription drug use

Seventy-one percent of U.S. employers say drug use among employees has impacted their business, but only 19% of them have comprehensive workplace drug policies in place, according to a survey by the National Safety Council (NSC). While 57% test their employees for drugs, only 41% screen for synthetic opioids – the kind of prescriptions usually found in medicines cabinets and increasingly available on the black market.

The types of incidents experienced in the workplace as the result of prescription drug use are: 39% absenteeism; 39% workers have been caught taking drugs while on the clock; 32% a positive drug test indicated use; 29% a worker had been found to be impaired or showed decreased work output; 29% a family member complained; 22% another employee complained to human resources; 15% an injury or near-miss occurred; and 14% an employee was caught selling drugs in the workplace.

“Employers must understand that the most dangerously misused drug today may be sitting in employees’ medicine cabinets,” Deborah A.P. Hersman, president and CEO of the NSC, said in a statement. “Even when they are taken as prescribed, prescription drugs and opioids can impair workers and create hazards on the job.” Cognitive impairments and physical pain masked by prescription drugs can make employees engage in riskier behaviors and reduce response time.

 

What employers can do

Develop a drug-free workplace policy, including prescription drugs

Most employers have a drug-free workplace policy directed at illegal drugs and an alcohol abuse policy, but most don’t have a prescription drug policy. Since prescription drugs are legal, it’s been difficult to craft a policy, but many addictions begin with legal prescriptions. Even when taken as prescribed, they can impair workers and create hazards on the job.

The NSC provides a free Prescription Drug Employer Kit to help employers create prescription drug policies and manage opioid use at work. The kit recommends actions including:

  • Define the employee’s role in making the workplace safe. A drug-free workplace program (DFWP) should state what employees must do if they are prescribed medications that carry a warning label or may cause impairment. The employer can create a plan around not operating vehicles or machinery while the prescription is in use. The DFWP should also spell out the steps an employer will take if it suspects a worker is using certain medications without a prescription, in larger doses than prescribed, or more frequently than prescribed.
  • Add prescription drug testing to illicit drug testing. Working with legal counsel, the employer should decide if additional testing is warranted for pre-employment screening, or for pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.
  • List the procedures or corrective actions the employer will follow when an employee is suspected of misusing prescription drugs or for an employee with confirmed prescription drug abuse.
  • Obtain legal advice. An attorney experienced in DFWP issues should review the policy before it’s finalized.
  • Train supervisory staff and educate employees. Educate managers and supervisors about prescription drug abuse and what to do if they suspect an employee has a problem. Training also is an underused tool that companies can use to make employees aware of the risks and signs of prescription drug misuse, along with company policies.
  • Review service coverage for behavioral health and/or employee assistance program (EAP) needs. Evaluate the behavioral health portions of health insurance policies and EAP contracts to ensure employees are covered for abuse of prescription drugs.

 

Work with insurers to cover alternative approaches

Hersman advised employers to work with their insurers to cover alternative therapies so that employees can avoid taking opioids or other addictive medications for chronic pain. Alternative therapies include acupuncture, guided imagery, chiropractic treatment, yoga, hypnosis, biofeedback, and others.

While 88 percent of survey respondents were interested in their health insurer covering alternative pain treatments, only 30 percent indicated they would not act on that interest by negotiating expanded coverage with insurers.

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

Lessons from a small company recognized as one of America’s safest companies

EHS Today, a magazine dedicated to the management of risk in the workplace and environment, has recognized America’s Safest Companies since 2002. Most of the companies are large or mid-sized, but this year’s list included Hunter Site Services of Texas that has 40 employees. Providing construction project management for the design and installation of pre-fabricated blast-resistant buildings, Hunter has a 5+ years injury-free record.

Recognizing that new employees are often the ones who experience injuries, the company instituted the Short Service Employee (SSE) Program, which applies to employees who have less than 90 days with the company and/or within his or her craft. The new employees receive an initial orientation of safety requirements prior to performing work under direct supervision of a designated employee who serves as a mentor and trainer. The new employees also wear a visual designation, so that they easily can be identified on a job site.

According to EHS Today, the company also offers:

  • A behavior-based observation program, in which employees are selected at random to be the safety observer for a week, noting both good and bad safety habits.
  • An Employee Times newsletter that is distributed monthly to all employees. It includes company news, a safety corner, reasons to work safely and a section for employee input and suggestions.
  • Job Safety Analysis that includes input from all employees about hazard recognition, evaluation and control; correct tools for the job, proper PPE, housekeeping, hazard communication, specialized operations and crew suggestions.
  • A Stop Work program that allows employees to stop work, report issues to supervisors and wait until the issue is resolved to start work.
  • To overcome complacency, Hazard Hunts, in which employees visit other work areas and “hunt for any hazard” that may cause injuries.

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

Key provisions of OSHA’s new rule on walking/working surfaces, fall protection

Although an overwhelming majority of general industry accidents stem from slips, trips and falls, Subpart D of General Industry Standards, “Walking-Working Surfaces,” adopted in April 1971, was inadequate, inconsistent, and unclear, but efforts to update were continually thwarted. Finally a new rule, 513 pages long, went into effect January 17, 2017 and updated requirements for ladders, stairs, dockboards, and fall and falling object protection for general industry. It applies to all general industry workplaces and covers all walking-working surfaces, which include horizontal and vertical surfaces such as floors, stairs, roofs, ladders, ramps, scaffolds, elevated walkways, and fall protection systems. It also addresses training requirements and inspections of surfaces and equipment.

Covering a wide variety of general industry firms including building management services, utilities, warehousing, retail, window cleaning, chimney sweeping, and outdoor advertising, it does not change construction or agricultural standards. OSHA stated that it tried to align fall protection requirements for general industry “as much as possible” with its requirements for construction because many employers perform both types of activities. Many of the requirements are simplified, definitions are unified, and similar types of equipment, such as ladders, are grouped into one section.

Key differences between old and new standard

  1. Fall protectionOld standard: Mandated use of guardrails as the primary fall protection method

    New standard: Gives employers the flexibility to determine what method they believe will work best in their particular workplace situation, such as personal fall arrest, safety net, guard rails, travel restraint, ladder safety, and work positioning systems. Under certain circumstances work can be done without fall protection §1910.28(b)(1)(iii). Personal fall arrest systems do not include the use of body belts. However, body belts may be used instead of harnesses when part of a ladder safety system. The rule also adds requirements on the performance, inspection, use, and maintenance of these systems. The height at which fall protection equipment must be required remains at four feet.

  2. Updated scaffold requirements(§1910.27(a))Old standard: Outdated scaffolding standards inconsistent with construction standards

    New standard: Requires employers to comply with OSHA’s construction scaffold standards and added new requirements for rope descent systems, not previously regulated by either OSHA’s general industry or construction standard

  3. Modified ladder requirements and phase-in of ladder safety systems or personal fall arrest systems on fixed ladders (§1910.28(b)(9))Old standard: Detailed design and specification requirements for portable ladders; cages and wells acceptable form of fall protection on fixed ladders higher than 24 feet

    New standard: Employers must ensure that ladders are capable of supporting at least the maximum intended load, which is the total weight and force anticipated to be applied by employees and equipment or other materials. Mobile ladder stands and platforms must be capable of supporting four times the maximum intended load. Also, all ladders must be inspected before initial use during a work shift, and as often as OSHA deems necessary after that, to identify visible defects that could cause worker injuries. Special requirements for portable ladders include slip-resistant rungs and steps, and finding ways to secure and stabilize use on slippery and other potentially dangerous surfaces. In addition, OSHA now requires that employers ensure when employees ascend or descend a portable ladder, they maintain three points of contact at all times: facing the ladder, using at least one hand to firmly grasp the ladder, not carrying any object or load that could cause them to lose balance and fall.

    Major change: Cages and wells no longer acceptable fall protection on fixed ladders higher than 24 feet. Fixed ladders must now be equipped with ladder safety system or personal fall arrest systems. There is a grandfather and phase-in provision, that grandfathers in cages and wells on existing ladders, but requires during the phase-in period (20 years) that employers equip new ladders and replacement ladders/ladder sections with ladder safety or personal fall arrest systems.

  4. “Qualified climber” exception in outdoor advertisingOld standard: Exception allowed qualified climbers in outdoor advertising to climb fixed ladders on billboards without fall protection.

    New standard: The directive allowing qualified climbers in outdoor advertising to climb fixed ladders on billboards without fall protection will be phased out and workers must follow the fall protection phase-in timeline for fixed ladders.

  5. Rope descent systems (RDS) and certification of anchorages (§1910.27(b))Old standard: Previously regulated under General Duty Clause

    New standard: Codifies OSHA’s memorandum for employers who use RDS to perform elevated work. Prohibits employers from using RDS at heights greater than 300 feet above grade unless they demonstrate it is not feasible or creates a greater hazard to use any other system above that height. In addition, requires building owners to provide and employers to obtain information that permanent anchorages used with RDS have been inspected, tested, certified, and maintained as capable of supporting at least 5,000 pounds per employee attached.

Training requirements

Employers must make sure that workers who use personal fall protection and work in other specified high hazard situations are trained, and retrained as necessary, about fall and equipment hazards, including fall protection systems. For each fall hazard that is identified, employees also must understand how following the procedures that have been established will protect them from injury or death [29 CFR 1910.30(a)]. Instruction must include how to properly use any tools and equipment such as ladders and safety net systems, portable guardrails, mobile ladder stands and mobile platforms. Employees also need to understand any limitations that these devices present and how misuse can cause injury or death. If personal fall protection systems will be used, training must include proper hook-up, anchoring, tie-off techniques, inspection and equipment storage [29 CFR 1910.30(a)(3)].

Employers can determine the type of training: classroom, audio-visual, demonstrations, field training, web-based, computer-based or other forms of training to meet the requirements of the standard. Training must be performed by a qualified person [29 CFR 1910.30(a) (2)] and if web, video or computer-based methods are used, a qualified person must be available to answer questions. While there are no specific annual requirements for retraining, training requirements “impose an ongoing responsibility on employers to maintain worker proficiency. As such, when workers are no longer proficient, the employer must retrain them.”

Inspection requirements

The standard requires that employers inspect walking-working surfaces regularly and as needed and correct, repair, or guard against hazardous conditions.

Important transitional dates

Some provisions have delayed effective dates to assist with the transition:

  • Training workers on fall and equipment hazards – (5/17/2017)
  • Inspection and certification of permanent building anchorages – (11/20/2017)
  • Installation of fall protection (personal fall arrest systems, ladder safety systems, cages, wells) on existing fixed ladders (over 24 feet) (including outdoor advertising structures) that do not have any fall protection – (11/19/2018)
  • Installation of ladder safety or personal fall arrest systems on new fixed ladders (over 24 feet) and replacement ladders/ladder sections – (11/19/2018)
  • Replace cages/wells and installation of ladder safety systems or personal fall arrest systems on all fixed ladders (over 24 feet) – (11/18/2036)

State plans

States with OSHA-approved state plans have six months to adopt standards that are at least as effective as Federal OSHA standards. Many state plans adopt standards identical to OSHA, but some state plans may have different or more stringent requirements.

For more information on the changes, visit OSHA’s webpage on the Walking-Working Surfaces standard.

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Things You Should Know

EEOC issues guidance on mental health discrimination and reasonable accommodations

A resource document titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” is now available from the EEOC, reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the ADA.

Sound level meter mobile app from NIOSH

NIOSH has developed a sound level meter mobile app designed to measure noise exposure in the workplace. The app, available for Apple devices, provides noise exposure metrics, including instantaneous sound levels in A-weighted, C-weighted or Z-weighted decibels, as well as parameters intended to aid with lowering occupational noise-induced hearing loss. Users can save and share measurement data and receive general information about noise and hearing loss prevention.

NIOSH recommends using the app with an external microphone and acoustical calibrator for better accuracy. The app is not intended for compliance or as a substitute for a professional sound level meter or a noise dosimeter, the agency cautions.

Mine safety inspection rule delayed

The Mine Safety & Health Administration’s newly issued workplace examination rule, is another one of the rules delayed 60 days by the Trump administration’s Jan. 20 regulatory freeze and review instructions. The rule, which was to go in effect May 23, is intended to improve miner safety and health by requiring examinations take place before miners are exposed to adverse conditions and notifying miners when a hazardous condition is found.

Five warning signs of employee fatigue

  1. Unusual emotion: employees acting out of character, such as showing emotional distress, moodiness, or having a bad attitude in the workplace.
  2. Consistent lateness: if a normally punctual employee arrives late to work every morning, it can indicate poor work-life balance.
  3. A cluttered workspace: Pay attention to employees’ desk and workstations. While some people prefer a more chaotic environment, a messy workspace can be a symptom of overwork.
  4. Forgetfulness and disregard for the team at large: It can also be a sign that the employee in question has too many things to think about and isn’t on top of their workload.
  5. Productivity dips despite longer hours: Productivity often decreases the longer employees spend at work.

Source: WorkForce Software (WFS Australia)

FDA approves long-acting opioid painkiller, Arymo ER.

The U.S. Food and Drug Administration (FDA) has approved Egalet Corp.’s long-acting opioid painkiller, Arymo ER. An independent panel recommended the drug be labeled as an abuse-deterrent product. Arymo ER is a long-acting variation of morphine that is intended to treat pain severe enough to require daily, around-the-clock, long-term opioid treatment. It comes in the form of a very hard pill that is difficult to crush and otherwise manipulate by people looking to abuse the product.

EPA updates

  • Final rule sets standards on ‘restricted use’ pesticides
    Certified workers who apply “restricted use” pesticides must be at least 18 years old and have their certification renewed every five years, according to updated standards finalized Dec. 12 by the Environmental Protection Agency.
  • Risk Management Program rule for chemical facilities amended
    Amendments to its Risk Management Program rule are an effort to improve chemical process safety and keep first responders safer.
  • Requirements to help prevent paraquat poisonings
    The herbicide paraquat can result in death or injuries through ingestion or skin or eye exposure. Paraquat is used for weed control and as a defoliant on some crops before harvest.

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

Things you should know

ACP latest medical guideline to discourage opioids for treatment of low back pain

A new low-back pain treatment guideline from the American College of Physicians (ACP) is the latest to discourage the use of opioids, instead encouraging the use of such treatments as exercise, acupuncture, massage, or biofeedback. When low-back pain becomes chronic, defined as lasting longer than 12 weeks, ACP recommends that patients start with non-drug therapy, which might include exercise, acupuncture, biofeedback, cognitive behavioral therapy or spinal manipulation. The guideline applies to cases of nonradicular low-back pain, where pain is not radiating into the patient’s legs.

If patients wish to take medication, they should use nonsteroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen, or skeletal muscle relaxants prescribed by a doctor. Acetaminophen and steroids are not recommended for low back pain, according to the guideline.

Guide offers advice on choosing the right slip-resistant footwear

Intended for workers, purchasers, and safety and health committees, a Montreal scientific research organization offers a free pamphlet detailing the procedures for choosing footwear with proper grip and protection against hazards. It also lists necessary steps, including creating a selection committee, considering risk factors, selecting the proper sole and verifying the selection before purchase.

ISHN annual update on hand protection

The Industrial Safety and Hygiene News February edition features its annual update on hand protection.

FMCSA delays effective date for CMV driver minimum training standards

The Federal Motor Carrier Safety Administration (FMCSA) rule establishing national minimum training requirements for entry-level commercial motor vehicle drivers has been pushed back until at least March 21 based on the executive order to temporarily postpone certain regulations that have yet to take effect. The agency could delay the minimum training rule beyond March 21, if necessary.

NIOSH publishes workbook on Total Worker Health

NIOSH has released a workbook it calls “a practical starting point for employers, workers, labor representatives, and other professionals interested in implementing workplace safety and health programs aligned with the approach.” The Total Worker Health concept emphasizes a work environment that is free of hazards and uses “a modern prevention approach” that acknowledges that occupational factors can affect the well being of employees, their families and their communities.

New Jersey’s toughens opioid laws

The New Jersey law limits doctors’ ability to issue first-time opioid prescriptions for more than five days, mandates doctors to create a pain-management treatment plan regarding the use of opioids and review prescriptions every three months, and requires doctors to obtain a written record that the risks of taking opioids were discussed with the patient. The law also mandates state-regulated health insurers to cover the first 4 weeks of inpatient or outpatient substance abuse treatment without the need for authorization. Insurers must provide additional coverage for up to 6 months of treatment, including medication-assisted treatments, if deemed medically necessary.

The prescription drug limit would not apply to patients with cancer and for end-of-life hospice care.

IRS will accept tax returns from individual filers without health care status but employer requirements remain the same

The IRS announcement that it will not reject taxpayers’ 2016 income tax returns that are missing health coverage information applies to personal income tax returns. Employers still must distribute 1095 forms to employees and report employee health coverage to IRS. Also, it is not a repeal of the individual mandate; penalty provisions are still in place and are currently being enforced.

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