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

Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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

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

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

New report weighs in on marijuana’s health benefits – nearly 100 conclusions

A new report from the National Academies of Sciences, Engineering, and Medicine offers a rigorous review of scientific research published since 1999 about the health impacts of cannabis and cannabis-derived products – such as marijuana. It lays out substantial evidence that associates the use of cannabis with the development of psychoses and schizophrenia, but also provides studies that show its potential benefits, such as relief of chronic pain and chemotherapy-induced nausea. Other benefits include: improvement of multiple sclerosis spasticity, improvement of short-term sleep in patients with obstructive sleep apnea, fibromyalgia, chronic pain, and multiple sclerosis, potential improvement of anxiety symptoms, and increasing appetite and decreasing weight loss in patients with HIV and AIDS.

But it also points out potential risks: worsening of respiratory symptoms and more frequent bronchitis with long-term smoking, increase in motor vehicle accidents, low birth weight in offspring of maternal smoker, and higher risk of cannabis overdose in children in states where cannabis is legal.

The report also acknowledges that it has been difficult for researchers to do rigorous research on marijuana, partly because of the federal classification of it as a Schedule 1 substance.

Employer takeaway: This report demonstrates how much more needs to be done – many health questions remain to be answered by better research. The increased legal availability of cannabis products in many states and the uncertain legal landscape has complicated workplace policies. It’s prudent for employers to establish a clear policy and communicate it effectively to employees as well as stay abreast of all legal decisions and regulations in the states where they do business.

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

OSHA watch

Anti-retaliation provisions effective now

The enforcement of anti-retaliation provisions in the injury and illness tracking rule went into effect December 1, after the U.S. District Court for the Northern District of Texas denied a motion that challenged the new provisions.

 

Final rule on walking/working surfaces, fall protection issued

A long-awaited final rule has been issued updating the standard on walking/working surfaces that addresses slips, trips and falls in the workplace and establishes employer requirements for the use of personal fall protection systems. The most significant update to the rule allows employers to choose the fall protection system that is most effective for them based on a variety of acceptable options, including the use of personal fall protection systems.

The rule also allows employers to:

  • Use rope descent systems up to 300 feet above a lower level
  • Prohibit the use of body belts as part of a personal fall arrest system
  • Require worker training on personal fall protection systems and other equipment designed for falls

The final rule does not change construction or agricultural standards. The final rule for general industry updates requirements for ladders, stairs, dockboards, and fall and falling object protection.

It’s expected that this rule will stand under the Trump administration since it is uncontroversial and employer-friendly.

 

Amputation prevention initiative launched in four states

Enforcement initiatives emphasizing the prevention of amputation hazards among workers in Arkansas, Louisiana, Oklahoma and Texas, began November 1. Inspectors will examine operations, working conditions, recordkeeping, and safety and health programs in these states for compliance. The program will also focus on employers in industries using machinery that can be hazardous to workers.

 

Regional emphasis program focuses on retail establishments in Pennsylvania

A Regional Emphasis Program for the Retail Industry will include a program of comprehensive safety inspections of certain retail establishments, with a focus on proper exits, material handling and storage and electrical hazards. The emphasis program will cover each of the counties that fall under the jurisdiction of the Wilkes-Barre area office, including: Bradford, Carbon, Clinton, Columbia, Lackawanna, Luzerne, Lycoming, Monroe, Montour, Northumberland, Pike, Potter, Schuylkill, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne and Wyoming.

 

Guide on silica rule compliance for small businesses

A compliance guide is available for small businesses in the construction industry to help them adhere to a final rule regarding exposure to crystalline silica in the workplace. The guide is intended as an advisory tool and does not create or change any obligations for employers.

 

NIOSH issues recommended exposure limits for chemicals linked to ‘popcorn lung’

NIOSH has released recommended limits for controlling occupational exposure to flavoring chemicals diacetyl and 2,3-pentanedione, both of which have been linked to reduced lung function in food flavoring and production industry workers. Published Oct. 31, Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-Pentanedione lists the recommended exposure limits for diacetyl at 5 parts per billion and 9.3 ppb for 2,3-pentanedione as an 8-hour time-weighted average during a 40-hour workweek.

 

Recent fines and awards

California

  • Elite Electric Inc. of Riverside faces $130,125 in proposed fines for serious and willful safety violations after a worker installing solar panels fell 29 feet through a skylight.
  • AAA Roofing was fined $24, 575 after a foreman’s instructions to use a propane torch to loosen a discharge pipe on a tanker filled with liquid asphalt caused an explosion that injured two workers.

Florida

  • Flacks Painting & Waterproofing of Lauderdale-By-The-Sea faces nearly $90,000 in fines after an employee suffered neck and back injuries when the balcony he was working from collapsed. A willful citation was issued for not ensuring the walking and working surface where employees were working was strong enough to support the workers. There were also four serious and two other-than-serious safety and health violations.
  • Collis Roofing Inc. of Deland faces nearly $143,000 in penalties for failing to protect employees from falls. The inspection took place as part of the Regional Emphasis Program on Falls in Construction.

Illinois

  • A mobile medical trailer fell and fatally crushed a 58-year-old electrician on his first day on the job at Advanced Mobility’s location in Monee. The company faces $58,792 in fines.
  • Coilplus Illinois Inc., a steel processing facility, faces penalties of $53,628 following the death of a 50-year-old employee after being pulled into a scrap metal baller. Penalties related to violations of confined spaces, machine guarding, and lockout/tagout standards.

Missouri

  • Magna Seating doing business as Excelsior Springs Seating System, a manufacturer of automotive seats, was cited for one serious health violation of the agency’s general duty clause after a May 2016 agency investigation found musculoskeletal disorder injuries. Proposed penalties are $12,471.
  • A Jefferson City roofing contractor, Weathercraft Incorporated, was cited for one serious violation of the general duty clause after a 47-year-old laborer died from suffering heat stroke on his third day on the job. Proposed penalties are $12,471.

Nebraska

  • Prinz Grain & Feed was cited for multiple violations at its West Point facility after a worker died when a wall of corn debris collapsed in a grain bin. Proposed penalties are $526,633 and the company has been placed in the Severe Violator Enforcement Program.

New York

  • A 23-year-old tree service worker was killed on the first day of his job after a wood chipper pulled him into the machine. Albany-based Countryside Tree Service was cited for willful, serious safety violations including failure to train and lack of PPE. Proposed fines total $141,811.

North Carolina

  • Smithfield Farmland Corporation in Clinton faces $77,000 in fines for failing to properly guard workers from a cutting band saw, exposing workers to amputation hazards.

Pennsylvania

  • An administrative law judge recently affirmed nine cited federal safety and health violations and assessed $344,960 in fines against Lansdowne masonry contractor, J.C. Stucco and Stone. The company has been cited 41 times since 2011 for exposing workers to life-threatening scaffolding hazards.
  • Philadelphia contractor, Hua Da Construction, was fined $72,000 for fall and trenching safety violations.
  • Crystal Window & Doors was cited for 8 violations at its Dalton facility and fined nearly $75,000 for not correcting safety hazards following the amputation of a workers’ finger.
  • Dollar General in Jonestown fined for blocking emergency exit again and faces $215,000 in penalties.

Wisconsin

  • KG Marketing and Bag Company of Waukesha, a manufacturer of plastic bags for commercial use, was cited for one willful violation of the machine-guarding standard and one other-than-serious violation for failing to report an amputation within the required 24-hour reporting period. The proposed penalty is $78,325.

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

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Things you should know

DOL overtime rule on hold

In late September 2016, 21 states led by Texas and Nevada, along with the U.S. Chamber of Commerce and other business groups, challenged the new overtime exemption rule and sought a nationwide injunction preventing the rule from taking effect. The states argued that the DOL unconstitutionally overstepped its authority and took issue with the policy behind the rule change, arguing that salary level alone does not reflect the type of work an employee performs, and that the DOL’s regulation disregarded the text of the FLSA by imposing a salary threshold without regard to whether an employee actually performs bona fide executive, administrative or professional duties.

 

Workplace injuries decline in private sector

The number and rate of nonfatal workplace injuries and illnesses in the private sector declined last year, according to a Bureau of Labor Statistics (BLS) report. Private industry employers reported about 2.9 million nonfatal workplace injuries and illnesses in 2015, representing a decline of about 48,000 from 2014, despite an increase in total hours worked. The rate of cases recorded was 3.0 cases per 100 full-time workers, down from 3.2 in 2014. Nearly 2.8 million, or 95.2%, of the cases were injuries, with 75% of these injuries occurring in service-providing industries and the other 25% occurring in goods-producing industries.

Workplace illnesses accounted for the other 4.8% of the cases reported by private industry employers in 2015, with service-providing industries accounting for 64.7% of illnesses and goods-producing industries accounting for 35.4%, according to the report. Wholesale trade was the only sector with an increase in the rate of injuries and illnesses in 2015, rising from 2.9 cases in 2014 to 3.1 cases in 2015.

Important to note: More than half of the nonfatal injury and illness cases involved days away from work, job transfer, or restriction, according to the report.

 

Workers’ comp medical severity dips for the first time in two decades

Workers’ compensation medical severity fell about 1% from 2014 to 2015, marking the first time that medical severity has fallen since 1994, according to a report released by the National Council on Compensation Insurance Inc. (NCCI). A 3% decline in physician service utilization was “a major driver” in lower workers comp medical severity, which some attribute to more insured workers under the ACA. The mix of injuries covered under workers’ comp has remained stable between 2012 and 2015, with musculoskeletal and connective tissue injuries comprising the majority of workers’ comp medical payments each year.

The study concluded that prescription drug costs continue to represent a “significant portion” of medical costs, and “one of the most active subjects” of workers’ compensation-related legislative activity. For every $100 paid for medical services to workers injured in 2014, $17 was for prescription drugs. For claims older than 10 years, the prescription amount rises to 45% to 50%. The study did not include three of the four highest-population states – California, Texas and New York.

 

Health care law not limiting workers’ comp doctor access

According to a report released by the NCCI, a study of the first full year of the impact on workers’ compensation of the health care law found that the law has not limited workers’ comp claimants’ access to doctors. The report, “Impacts of the Affordable Care Act on Workers Compensation,” used medical data from workers’ compensation claims from 2012 to 2014 to compare primary care utilization per claim. The timeline included the first year of expanded medical insurance under the national healthcare reform law.

 

Workers in stressful, low-control jobs have higher risk of early death: study

Workers in high-stress jobs who have little control over workflow and other key decisions are at a higher risk of dying early, according to a study from Indiana University’s Kelley School of Business. Researchers examined a seven-year, longitudinal sample of 2,363 Wisconsin residents in their 60s who worked high-demand jobs. They found that workers in “low-control” jobs had a 15 percent higher risk of death. In contrast, workers in “high-control” positions had a 34 percent lower risk of death.

 

CDC resource to help reduce smoking

To help combat the use of tobacco in the workplace, the CDC foundation is offering resources in the latest edition of Business Pulse. Included are an infographic and a Q&A with Corinne Graffunder, director of CDC’s Office on Smoking and Health.

 

Communication tower association releases video on anchor corrosion

A new safety video from the National Association of Tower Erectors highlights the conditions and factors that contribute to anchor corrosion on guyed towers.

 

Workplace weight management lowers costs, improves quality of life

Employees who participate in a workplace weight management program-even those without significant weight loss-have reduced health care costs and improved quality of life (QOL), reports a study, Effect of workplace weight management on health care expenditures and quality of life, in the November Journal of Occupational and Environmental Medicine, official publication of the American College of Occupational and Environmental Medicine (ACOEM).

 

State news
Florida – Workers’ comp attorney fees jump after high court ruling

A recent Florida Supreme Court decision has caused workers compensation attorney fees to increase 22% in the state, according to the NCCI. The average Florida workers’ comp claimant attorney fee per award was $4,978 between May and September 2016, compared with $4,095 for May through September 2015.

 

Pennsylvania battles opioid addiction crisis with slate of new laws

Legislation, including five separate bills that will go into effect within the coming months, is aimed at the opioid crisis. Among the new laws is the Safe Emergency Prescribing Act – House Bill 1699 – which prohibits hospital emergency rooms and urgent care centers from prescribing opioids for longer than seven days and bans refills for opioid prescriptions.

Senate Bill 1202, which amends Pennsylvania’s Achieving Better Care by Monitoring All Prescriptions Program Act, requires continuing education for medication prescribers and dispensers related to pain management, addiction and dispensing, and requires prescribers use of the prescription drug monitoring database every time they prescribe an opioid or benzodiazepine.

Three other bills will now require more training on pain management in medical schools, restrict the ability to prescribe opioids to minors and permit certain facilities to serve as drop-off locations for unused prescription drugs.

PA.gov provides a summary of the five bills.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com