The daunting challenge of maintaining a drug-free workplace

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

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

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

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

Legal concerns

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

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

Marijuana

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

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

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

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

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

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

Workers’ Comp

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

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

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

OSHA

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

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

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

Privacy

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

Conclusion

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

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

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Legal Corner

ADA 
More appellate court decisions support regular attendance as an essential function of most jobs

In Trautman v. Time Warner Cable Tex., LLC, (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., (2d Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., (8th Cir. Dec. 19, 2018), the Fifth Circuit, Second Circuit, and Eighth Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer. While the decisions show that unreliable attendance can render an employee unqualified for his or her job, it’s not a given and rests on the facts of the case- employers need to be vigilant in their documentation and process and consistent in the treatment of all employees.

FMLA 
Employee must turn over social media posts

In Robinson v. MGM Grand Detroit, LLC, the United States District Court for the Eastern District of Michigan found that an employer does have the right to Facebook and other social media accounts when an employee sues for discrimination and violations of the FMLA. The case alleged that an employee of MGM Grand was terminated because of his race and disability and in retaliation for taking FMLA leave. In discovery, the employee refused to provide his social media posts. A federal magistrate ruled that the employee’s Facebook, Google Photo, and Google location accounts were relevant for the case and ordered the employee to turn them over for the time he was out of work.

Workers’ Compensation 
NLRB: independent contractor test overturned

The National Labor Relations Board (NLRB) has returned to a previous standard for evaluating the status of independent contractors versus employees. In the SuperShuttle DFW Inc. case, which involved shuttle-van-driver franchisees of SuperShuttle at the Dallas-Fort Worth Airport, the board concluded that the franchisees are not statutory employees under the National Labor Relations Act, but rather independent contractors excluded from the law’s coverage.

This decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Federal appeals court sends Browning-Ferris joint employer standard back to NLRB

The federal appeals court in the District of Columbia has partially upheld the Obama-era Standard in Browning-Ferris Industries of Cal., Inc. v. NLRB. The court said that it was permissible for the Board to create a standard that considered both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment. However, the Board failed to articulate the scope of what it considers “indirect” control, so the issue was remanded. The impact on the Board’s rulemaking remains to be seen.

Employer not vicariously liable for a fatal car accident caused by an intoxicated employee – California

In an unpublished decision, Pryor v. Fitness International, an appellate court ruled that an employer was not vicariously liable for a fatal car accident caused by an intoxicated employee. When a supervisor determined that a membership counselor was impaired and sent him home early, the counselor’s car struck a bicyclist, who died from his injuries. The widow asserted the company was vicariously liable for the employee’s negligence because he was acting within the scope of his employment when he became intoxicated, and/or when he struck her husband. Further, they were negligent in hiring, retaining and supervising.

The court found that the employee was acting in a purely personal capacity when he became intoxicated and killed the bicyclist. The fact that he was sent home by the supervisor did not implicate the “special errand” rule under workers’ comp. Further, the company had no duty to try to prevent the collision, so it could not be held directly liable for negligence.

Job placement agency can’t be sued by worker who passed drug tests but was not offered job – Florida

In McCullough v. Nesco Res. LLC, the Eleventh Circuit Court of Appeals held that a job applicant who was required to take two drug tests (and passed) but was not offered a position cannot sue the placement agency. The Drug-Free Workplace Program Statute does not provide an aggrieved applicant with a private right of action. The Court said the “penalty” for the employer’s failure to abide by the statute was its loss of the discount in workers’ compensation premiums that it could enjoy with full compliance.

Lawsuit against employer for off-duty worker’s death can proceed – Minnesota

In Henson v. Uptown Drink, the Supreme Court ruled that a lawsuit filed against a bar after the death of an off-duty employee may proceed. The bartender and other employees, including an off-duty employee, forcibly removed two men who had become drunk and belligerent. The off-duty employee fell and hit his head on concrete, causing a traumatic brain injury that led to his death. His family sued, but the district court ruled the suit was barred by the exclusive remedy of workers’ comp.

The Court of Appeals reversed, holding that the evidence was insufficient to establish that the death arose out of and in the course of his employment. The case then proceeded under innkeeper negligence and violation of the Dram Shop Act and went through several appeals. The Supreme Court affirmed the appellate court decision, ruling in part that “a reasonable fact-finder could determine that (the patron’s) intoxication, violent outburst, and subsequent physical resistance, taken together, were the proximate cause of the fall that killed…”

Comp carriers must split death claim in spite of mistaken duplicative coverage – Missouri

In Employers Preferred Ins. Co. v. Hartford Accident and Indem. Co., a husband and wife each procured a workers’ compensation policy for a bakery they owned. An employee died in an automobile accident in the course of his employment and Employers paid the claim, but sought an equitable contribution from Hartford. When a Hartford agent told the husband after the accident that the Hartford policy was active, the husband filed a cancellation request, Hartford retroactively cancelled the policy, and issued the bakery a full refund of the premium and maintained it did not owe any contribution to Employers.

However, the Eighth Circuit found state law barred Hartford from cancelling a policy and eliminating its duty to defend and indemnify, after an insured had become liable for a workers’ compensation claim.

Nebraska resident hired in state but injured in Alaska cannot collect in state – Nebraska

A Washington seafood company recruited, drug tested, and hired prospective employees in Nebraska, but did no actual work in the state, therefore it was not an “employer” for purposes of the Workers’ Compensation Act. In Hassan v. Trident Seafoods & Liberty Mut., an appellate court held that a resident who was hired in Nebraska and later sustained work-related injuries in Alaska, receiving some workers’ compensation benefits from that state, could not maintain a workers’ compensation claim in Nebraska

Worker must sue third party in state that paid benefits – Nebraska

Drivers Management LLC, a Nebraska trucking company, contracted with Eagle KMC LLC, an Arizona company, to train employers. A truck-driver-in-training was injured and collected workers’ comp from Drivers Management. Almost two years later, she filed a personal injury suit against Eagle and other parties. Because Drivers Management had a subrogation claim against any third-party recovery, it was named as a defendant. The suit was filed in Arizona and upon appeal, the court held that Arizona laws do not apply because workers’ compensation benefits were adjudicated and paid in Nebraska, which “governs subrogation, lien, and assignment rights in this action.”

Causal link must be more than a “possibility” – New York

In Bufearon v City of Rochester Bur. of Empl. Relations, a worker was injured in a work-related auto accident and received medical treatment for his left shoulder, left hip, low back,and cervical spine. The self-insured employer accepted liability for all treatment except for the cervical spine.

While a workers’ compensation law judge found that the cervical spine injury was compensable, the Workers’ Compensation Board reversed and the appellate court agreed, noting the Board had the power to determine the causal relationship based on substantial evidence. The court found the medical testimony conflicting, and neither treating physician reviewed the employee’s medical records from his prior cervical spine surgery. Therefore, the Board’s finding the physicians’ opinions regarding causation were mere expressions of possibility and speculation was proper and the injured worker failed to prove that his cervical spine issues were causally related to his accident.

No “grave injury” nixes 3rd party claim for indemnification – New York

In Alulema v. ZEV Electrical Corp., a worker allegedly suffered a brain injury while at work, resulting in disabling cognitive and emotional symptoms and filed a tort claim against a subcontractor. The subcontractor filed a third-party complaint against the employer, seeking indemnity or contribution.

Under state law, if an employee suffers a “grave” injury, the employer may be liable to third parties for indemnification or contribution. To be classified as a grave injury, it must leave the worker unemployable “in any capacity.”

An appellate court overturned the trial court and found no grave injury. Testing did not substantiate his claims of cognitive and emotional symptoms and he was actively looking for employment and had obtained his GED.

Court dismisses worker’s claim against Trump campaign for distress – North Carolina

In Vincent Bordini v. Donald J. Trump for President Inc. and Earl Phillip, an appellate court ruled it had jurisdiction rather than a workers’ compensation court over a suit alleging a Trump 2016 presidential campaign data director pointed his gun at a co-worker causing emotional distress and other damage. The director, who possessed a concealed carry permit, allegedly took out his gun and held it against the worker’s knee with his finger on the trigger while in the car.

While the campaign contended the case should be heard as a workers’ comp claim, the court noted, “The risk of being intentionally assaulted at gunpoint by a coworker is not one which a reasonable person may have contemplated when accepting an information technology job on a presidential campaign.” Therefore, it was not preempted by workers comp law.

Nevertheless, the court found that the campaign could not be held vicariously liable because the director was an independent contractor, not an employee. He was hired through a political consulting firm, had no set work hours, and was not under a regular employment contract.

Disability commences on the work day following the injury – Pennsylvania

While neither the statute nor case law addresses when a disability commences if an injured employee is paid full wages the day of their injury, the Commonwealth Court ruled the disability commences on the work day following the injury. It noted the bureau’s interpretation states that payment is to be made “on the date the claimant is unable to continue work by reason of injury unless he is paid full wages for the day.”

In Stairs v. Workers Compensation Appeal Board, a worker was injured and taken to the hospital by ambulance and did not return to work, but received full pay for the day of the injury. The employer sent a notice of temporary compensation payable, acknowledging the worker had suffered a back injury on Friday, March 27, 2015, and stated that the 90-day period to contest his claim would run from March 30 through June 27, 2015.

Under state statute, if the employer does not file to contest within 90 days its notice of temporary compensation payable will be converted into a notice of accepting liability for the claim. On the 90th day of the disability the company filed to contest the claim, although the Bureau issued a notice of conversion the following day. The worker appealed but the commonwealth court ruled that the employer’s notice was timely filed and the notice of conversion issued by the bureau was void.

Although symptoms abated, bricklayer entitled to ongoing benefits but not penalties from employer – Pennsylvania

In Kurpiewski v. WCAB (Caretti) and Caretti v. WCAB (Kurpiewski), the Commonwealth Court found a bricklayer was entitled to ongoing benefits, although he no longer had symptoms nor did he need treatment for a skin condition arising from his long-term exposure to chromium. His chromium sensitivity prevented him from working as a bricklayer. The worker also sought penalties, based on the employer’s failure to timely accept or deny liability for his claim.

The court found the employer had violated the law by failing to acknowledge or deny the claim within 21 days. Although it filed an answer contesting his claim, it did not issue a separate notice of denial. However, the court noted not every violation requires a penalty and remanded the imposition of a penalty to the judge.

Worker awarded benefits in spite of “close question” on causation – Tennessee

In Butler v. Tennessee Municipal League Risk Management Pool, a laborer worked on installing a water line at the county landfill. Two days later he was diagnosed with invasive pulmonary aspergillosis and has not returned to work.

While he argued it was a result of working in the trench, the pool said he had developed it on his farm. Since aspergillus spores are everywhere, causation is difficult to prove. However, through the testimony of his coworkers, it was established that several workers developed respiratory ailments after installing the water line at the landfill. In addition, four doctors opined that the invasive aspergillosis was caused by a massive exposure to the aspergillus fungus while digging the trench.

In overturning the denial of benefits, the Supreme Court’s Special Workers’ Compensation Appeals Panel noted it was “strangely coincidental” all of the men fell ill with similar symptoms while working at the landfill and given the beneficent purpose of the workers’ compensation system, it found in favor of the worker.

Falling asleep at the wheel nixes benefits – Virginia

In Norris v. ETEC Mechanical Corp., a master electrician fell asleep while driving home from a job site and suffered serious injuries.The court found that the accident occurred in the course of employment, but did not arise out of his employment. The state uses the “actual risk” test to determine whether an injury arose out of employment. While he said he fell asleep because he was tired, he did not relate the drowsiness to his work.

To keep benefits, employee must be bound by release – Virginia

In Giles v. Prince George Cty. Pub. Sch, a worker suffered multiple injuries and filed several claims. Later, with the help of an attorney, she entered into a settlement agreement that included some exceptions to her treatment and prohibited further claims arising from the accident. Shortly after the settlement, she demanded benefits for her right shoulder, which was an exception in the agreement. The commission treated this as a request to review the settlement, but the worker argued she did not want a review, but wanted additional benefits. The Court of Appeals upheld the commission’s denial of benefits, noting she could not keep the benefits of her agreement and at the same time not be bound by her release.

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

Legal Corner

ADA
Bank pays $700,000 for inflexible disability policy

A bank has agreed to pay $700,000 to settle an EEOC lawsuit for violating the ADA. Hudson City Savings Bank, which merged into Wilmington Trust Co., a subsidiary of Buffalo, New York-based M&T Bank Corp. in 2015, had a long-standing inflexible policy of placing employees with impairment or disabilities on involuntary leave or discharging them until it received a medical provider’s clearance to return to work with no restrictions.

Disability discrimination case of health worker who refused vaccine dismissed

In Janice Hustvet v. Allina Health System, a unit of Minneapolis-based Allina Health System merged with Courage Center in Minneapolis. Allina required Courage Center employees who had patient contact to get a vaccine for measles, mumps and rubella as part of a preplacement health assessment screen. An independent living skills specialist refused noting she had many allergies and chemical sensitivities.

When she was fired, she filed a disability discrimination suit under the ADA. The court found that the requirement to undergo a health screen was job-related and consistent with a business necessity. Further, there was insufficient evidence that her chemical sensitivities or allergies substantially or materially limit her ability to perform major life activities.

Workers’ Compensation
Apportionment for pre-existing, asymptomatic conditions allowed – California

In City of Petaluma v. WCAB (Lindh), a police officer suffered head injuries during a training exercise, experienced headaches and lost vision in his left eye. A medical assessment determined that he had a pre-existing vascular condition that predisposed him to a loss of eyesight. While an administrative law judge and the WCAB granted a 40% permanent disability without apportionment, the 1st District Court of Appeal noted statutes provide that permanent disability must be apportioned based on causation, as long as there is substantial medical evidence that the disability was caused, in part, by nonindustrial factors. The condition does not have to manifest itself; an asymptomatic condition, means a condition that is present but for which there aren’t any symptoms.

The court therefore ordered the case sent back to the board to issue an award apportioning 85% of Lindh’s disability to his pre-existing condition, and 15% to his industrial injury.

Workers’ fraud means carrier can seek modification of benefits – Florida

Florida’s statute allows a judge of compensation claims to change benefits if there is a change in condition or if there was a mistake in a determination of fact. In U.S. Fire Insurance Co. v. Hackett, the carrier had been paying for around-the-clock attendant care provided by the husband and daughter of the injured worker. Over 25 years after the accident, the injured worker stopped seeing her treating doctor.

The carrier then conducted surveillance and found she was not receiving all the attendant care for which they were paying and questioned the need for continued care. While a judge agreed that the husband and daughter were deceiving the carrier, she denied the carrier’s petition for modification, reasoning that the evidence established fraud, not a change in medical condition. She also stated she did not have the authority to compel an IME. The Court of Appeal for the 1st District disagreed and reversed the decision.

Injured worker cannot sue third party – Illinois

In A&R Janitorial v. Pepper Construction Co.; Teresa Mroczko, an employee of a janitorial service was cleaning an office building. At the same time, a subcontractor was replacing carpets and a desk that had been placed in an upright position fell and injured the custodian. She collected workers’ comp benefits from her employer, but did not file a timely personal injury action against the construction company.

Under Illinois law, if a worker does not file a personal injury action, her employer can. While the litigation was pending, the worker filed her own action, but was denied as untimely. Later, she filed a petition to intervene in her employer’s case. While a judge denied the petition, the Appellate Court reversed and the case went to the Supreme Court.

The Supreme Court reversed on res judicata grounds – the matter had already been adjudicated by a competent court and may not be pursued further by the same parties.

Temporary staffing employee cannot sue assembly plant – Indiana

An employee of a temporary staffing agency was assigned to work in an assembly plant. When her hand was crushed by a punch press and a finger was severed, she collected workers’ comp from her employer, the temporary staffing agency. Later she filed suit against the assembly plant, claiming negligence.

The assembly plant argued that it was immune from civil liability since the worker was an employee and the courts agreed. The Indiana statute provides “a lessor and a lessee of employees shall each be considered joint employers of the employees provided by the lessor to the lessee.”

Attorney’s text message to IME does not bar medical report and testimony – New York

In Robert G. Knapp v. Bette & Cring LLC, Workers’ Compensation Board, a divided appellate court ruled that the Workers’ Compensation Board erred in barring the introduction of the IME’s report and testimony at a later hearing because the attorney sent a text message to the physician and not the opposing counsel.

The message requested an update on the loss of use of the worker’s left foot, which had been determined at 40.5% for comp benefits. Following the exam, the IME found an 88% scheduled loss and the Board reopened the case. The Board credited the employer’s physician’s report and awarded a 50% loss, precluding the IME’s report.

In overturning the decision, the appellate court noted the message ‘appears to be a limited communication’ and did not reflect an effort to influence the physician’s testimony or opinion.

Injured employee can continue medication beyond its recommended short-term use – New York

In Matter of Byrnes v. New Island Hospital, an appellate court ruled that an injured nurse could continue use of Amrix, a muscle relaxant, which is recommended for only short-term use on the board’s Non-Acute Pain Management Guidelines, but which she had been using for over 16 years. The injured worker’s doctors argued that the medication, in combination with other therapies, allowed her to perform the activities of daily living and to continue working as a nurse and the effects of the drug vary by individual.

The court supported the board’s finding that the medication was medically necessary.

Additional compensation awards subject to durational limits – New York

In Mancini v. Office of Children and Family Services, the state’s highest court ruled the additional compensation awards permissible under Section 15 (3) (v) of the Workers’ Compensation Law are subject to the durational limits set out under Section 15(3)(w) – those for workers with non-schedule injuries. The ruling is a continuation of the state’s trend toward caps on benefits that started with the 2007 reforms.

Supreme Court overturns compensability award based on preexisting condition – North Carolina

In Pine v. Walmart Associates, a long-time employee fell and was released to return to work, but continued to experience pain. A few months later, imaging revealed nerve damage and she filed a workers’ compensation claim. Walmart accepted liability for the right shoulder and arm injuries, but denied liability for the condition of her cervical spine as well as other injuries, since she had a pre-existing degenerative disc disease.

The Industrial Commission found her injuries and subsequent pain were the result of the earlier fall and were compensable based on the Parson’s presumption that injured workers should not be required to prove their need for treatment was related to the original injury every time they seek further medical care. While noting the commission applied the incorrect standard in determining compensability, the Court of Appeals affirmed.

While this was under appeal, legislation was enacted that amended the statute, Section 97-82(b), to clarify that the Parsons presumption applies only to the specific injury that was accepted on a Form 60. Since the statute was applicable to all cases not yet resolved, the worker was not entitled to a presumption that her other conditions were compensable. Further, it was unclear if the commission made findings of causation independent of the application of the presumption; therefore, the decision had to be set aside.

Petition for civil contempt cannot compel interest payments on benefits delayed while employer appealed award – Missouri

In Smith v. Capital Region Medical Center, a widow was awarded benefits for the death of her husband. When the employer appealed the award, there was a delay of about 1.5 years before the Court of Appeals affirmed it. The widow filed a petition for civil contempt to compel the employer to pay the interest owed, but the court noted Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money.

First employer liable for reoccurrence of injury of worker hired through labor union – Nebraska

In Weyerman v. Freeman Expositions, a stagehand was a member of a local union. The union had a collective agreement with Complete Payroll, which was considered the employer of members of Local 42 when they worked on its jobs, but the union also had agreements with other companies, including Freeman Expositions, which specified it was the “employer” when union members were working on its jobs.

The stagehand was injured while working for Freeman and the treating doctor cleared him to return to work in about a week. Complete Payroll sent the worker to another job, but he was unable to perform because of back pain. Then he was cleared to return to work, but did not go back and began seeing another doctor and filed for workers’ compensation.

The workers’ compensation court found he suffered an injury to his back while working for Freeman Expositions and that he suffered a recurrence of the injury several weeks later and he had not reached MMI. While the Court of Appeals acknowledged conflicting evidence, it affirmed the decision that Freeman was liable for both injuries.

Question of disability limits benefits for daughter with incurable eye disease – Pennsylvania

In Aqua America v. WCAB (Jeffers), a worker was killed in an auto accident, leaving behind a wife and four children. Under the law, payment of benefits to minor children continue until they reach the age of 18 and beyond, if they have a disability.

His daughter suffers from an incurable, progressive eye disease, which will eventually leave her legally blind. The widow sought dependency benefits that would continue after her daughter turned 18.

While a workers’ compensation judge and the Workers’ Compensation Board approved the daughter’s benefits beyond the age of 18, until the employer could prove she was capable of self-support, the Commonwealth Court overturned. It noted disability involves “not merely physical impairment, but loss of earning power” and there was no evidence regarding loss of earning power.

Patient’s ulcer not attributable to pain medications – Tennessee

In Steak N Shake v. Yeager, a restaurant worker suffered serious injuries in a fall and was given prescriptions for several pain medications. A week after his fall, he returned to the hospital complaining of weakness, dizziness and chest pain and a doctor posited that the ulcer was likely caused by the combination of meds. The Department of Labor ordered the restaurant to pay for his care.

His hospital bill was over $48,000 and the restaurant contested it by filing a civil suit against the worker. In so doing, they obtained admissions that the worker had taken more meds than prescribed and he consumed an average of three ounces of liquor daily. While a trial judge upheld the award, the Special Workers’ Compensation Appeals Panel reversed and the Supreme Court upheld the Panel’s decision not to award benefits.

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Important takeaways from recent studies and reports

Outlook for workers’ comp is stable, but rising medical and legal costs and payroll threaten profits – AM Best Co. Inc.

Currently, AM Best has a stable outlook on the U.S. workers’ compensation industry, the largest component of the U.S. commercial lines segment. However, the well-known rating agency sees some threatening headwinds that can alter the industry’s course. In 2017, growing payrolls helped offset rate decreases and overall soft-market conditions, according to the report. The agency believes that the use of technology, which has provided greater insights into underwriting, pricing and claims decisions, has helped support the line’s health and will continue to do so.

Despite the positive results, AM Best believes the trend of declining rates likely will trigger profit margin compression, possibly as soon as 2019. Unemployment has decreased steadily since 2010; however, AM Best notes that long unemployment rate declines typically are followed by sharp spikes in unemployment, and believes that workers’ compensation writers should be prepared for a downside scenario as well.

In addition, while there has been a decline in loss frequency, medical cost inflation, as well as the potential for accelerating frequency if employers hire less-qualified candidates are a concern. Rising medical loss cost severity, the declining benefit from prior accident year reserve redundancies and high average settlements on cases stemming from attorneys’ growing involvement and litigation, also put pressure on pricing.

Employer takeaway: The report is good news about the stability of rates in the short term. It also provides insights as to how insurers will be evaluating risk. The continued growth of technology in underwriting and pricing means that a company’s risk profile is critical. Insurance companies have become quite sophisticated and rates will be based on their perception of your risk. The way to get the best rates is to improve your risk profile – not bidding and quoting. There are trends and claims that are red flags for underwriters, including claim severity, high medical costs, and excessive attorney involvement. If you have claims in these categories, it’s a good idea to document special circumstances as well as actions taken to prevent future occurrences.

Employee care concern and satisfaction -WCRI

An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested, according to Comparing Outcomes for Injured Workers reports by the Workers Compensation Research Institute (WCRI). Telephone interviews were conducted with close to 10,000 injured workers from 15 states who were hurt at work between 2010 and 2014. The workers interviewed live in Arkansas, Georgia, Kentucky, Florida, Iowa, Indiana, Tennessee, North Carolina, Virginia, Minnesota, Michigan, Pennsylvania, Wisconsin, Massachusetts, and Connecticut.

Among the findings:

  • An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested.
  • Between 12% and 21% of injured workers reported “big problems” getting the service they or their primary provider wanted, with 10 of the states falling in the 17% to 18% range. Pennsylvania had the lowest rate of 12%.
  • Between 11% and 20% reported being “very dissatisfied” with their care.
  • Thirteen percent of workers said they did not return to work for at least a month after their injury.
  • Between 6% and 11% of injured workers report a significant loss of income due to injury at the time of the interview.

Employer takeaway: The data reinforces the message that employers must be proactive and vigilant in managing workers’ comp. This is not new “news” – recovery-at-work programs, medical management best practices, and open lines of communications among all stakeholders are the cornerstones of a successful program.

First-ever industry breakdown of drug use in the American workforce – Quest

Quest, a leading drug-testing provider, announces the rate of positive drug test results annually based on an analysis of 10 million urine tests. The new data marks the first time Quest has broken it down by industry.

The rate of positive test results for illicit drugs was highest in retail (5.3%), health care and social assistance (4.7%), and real estate rental and leasing (4.6%) sectors in 2017, while the utilities (2.8%) and finance and insurance (2.6%) sectors had the lowest rates. Drug use by the workforce increased each year, and by double-digits over the two years between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed. The highest rates were in consumer-facing industries.

Marijuana was the most commonly detected substance, with the highest drug positivity rate of all drug classes across the majority of industry sectors. Marijuana positivity was highest in accommodation and food services, at 3.5 percent in 2017, more than 34 percent higher than the national positivity rate of 2.6 percent for the general U.S. workforce.

Employer takeaway: With low unemployment and tight job markets as well as legalized recreational marijuana in many states, many employers have dropped pre-employment drug tests for positions that aren’t safety sensitive. The analysis suggests that employers can’t assume that workforce drug use isn’t an issue in their industry. Employers are responsible for ensuring the safety of workers, customers, and members of the general public and this is one of the more vexing areas. Review your written drug policies, clearly communicate expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment.

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

Things you should know

EEOC issues FY 2018 Performance Report

In its performance report, the U.S. Equal Employment Opportunity Commission (EEOC) reported significant increases in its outreach efforts and enforcement actions to prevent and remedy employment discrimination. The EEOC secured approximately $505 million and other relief for over 67,860 victims of discrimination in the workplace. The EEOC’s legal staff resolved 141 merit lawsuits, filed 199 more in FY 2018, and filed 29 amicus curiae briefs on significant legal issues in employment discrimination cases.

Non-fatal injuries and illnesses decline – BLS report

The Bureau of Labor Statistics (BLS) report on workplace injuries and illnesses showed a slight decline from 2016 to 2017. There were 2.8 million nonfatal workplace injuries and illnesses reported by private industry employers in 2017, a rate of 2.8 cases per 100 full-time equivalent workers, compared with 2.9 cases in 2016. In manufacturing, sprains, strains and tears were the leading type of injury with a rate of 27.5 cases per 10,000 FTE workers which was unchanged from 2016. For more details

Recreational and medicinal marijuana – midterm results

  • Michigan became the 10th state to legalize the possession and use of recreational marijuana for adults.
  • Missouri and Utah approved the use of marijuana for medicinal purposes.
  • North Dakota rejected a measure to legalize recreational marijuana.

Crashes up in states with legalized marijuana

Crashes have increased by up to 6% in four states that have legalized marijuana for recreational use compared with neighboring states that have not done so, said the Insurance Institute for Highway Safety and the Highway Loss Data Institutes. Data from Colorado, Nevada, Oregon and Washington, which have legalized marijuana, was compared with the control states of Idaho, Montana, Utah and Wyoming. The combined state analysis is based on collision loss data from January 2012 through October 2017.

Bad commutes have driven more than 20 percent of office workers to quit a job, survey shows

Nearly one in five U.S. office workers say they’ve quit a job because their commute was too much, according to the results of a recent survey conducted by global staffing firm Robert Half.

In a survey of more than 2,800 office workers from 28 cities, 23 percent cited a bad commute as a reason for quitting a job. The cities with the most workers resigning for commute-related reasons were Chicago, Miami, New York and San Francisco.

Managing fatigue risk in the tugboat, towboat and barge industry: New guide available

The American Waterways Operators has released a guide on various principles of fatigue risk management.

State News

California

  • Workers’ Compensation Insurance Rating Bureau (WCIRB) released their Workers’ Compensation Aggregate Medical Payment Trends report, which compares medical payment information from 2015 to 2017. There was a cumulative 8% reduction in medical payments per claim from 2015 to 2017. More information
  • Average losses on newer indemnity claims are starting to tick up even as costs for older claims continue to level out or decline, the Workers’ Compensation Institute (CWCI) reports.

Florida

  • The Insurance Commissioner has issued a final order for a 13.8% workers’ compensation rate decrease for 2019, which applies to both new and renewing workers comp policies effective in the state as of Jan. 1. The reduction is slightly larger than that submitted by NCCI (13.4%).

Illinois

  • Legislature overturned the Governor’s veto of the workers’ compensation law to allow medical providers to sue insurers over interest stemming from unpaid bills, among other changes to the way medical claims are managed between doctors and payers. Attached to the new law is an amendment that specifies the medical treatment must be approved under workers’ compensation – and oftentimes by the commission – before interest can be accrued and then collected via the circuit court.

Massachusetts

  • Falls to a lower level were the leading cause of fatal worker injuries from 2014 to 2015, representing nearly 17 percent of the workplace fatalities, according to a report released Oct. 16 by the Department of Public Health.

Minnesota

  • The workplace injury rate fell to the lowest level ever recorded in 2017, to 3.3 nonfatal injuries per 100 full-time workers, reports the Department of Labor & Industry.

North Carolina

  • The nonfatal workplace injury and illness rates reached an all-time low in 2017, according to a new report from the state Department of Labor.

Tennessee

  • The Department of Commerce and Insurance Commissioner approved a 19% reduction in workers’ compensation rates, consistent with NCCI’s recommendation. The reduction will become effective on March 1.

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

OSHA watch

Final rule on crane operator certifications issued

As anticipated, the final rule clarifying certification requirements for crane operators, requires certification by type of crane or type of crane and lifting capacity. “Certification/licensing” must be accomplished via an accredited testing service, an independently audited employer program, military training, or compliance with qualifying state or local licensing requirements. Employers also are required to “train operators as needed to perform assigned crane activities” and provide training when it is necessary to operate new equipment.

Most requirements in the final rule became effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. Employers who have evaluated operators prior to Dec. 9, 2018 will not have to conduct those evaluations again, but have to document when those evaluations were completed.

New publication on lockout/tagout and temporary workers

A new bulletin on lockout/tagout explains the joint responsibility of host employers and staffing agencies to ensure that temporary employees are properly protected against the sudden release of stored energy. Prior to beginning work, both employers should review the task assignments and job hazards to identify, eliminate, and control the release of hazardous energy before workers perform service or maintenance on machinery.

Regional Emphasis Program (REP) in Pacific Northwest for fall protection in construction

Enforcement of the REP, which includes Alaska, Idaho, Oregon and Washington, will begin after a period of outreach and education. Enforcement activities will include “onsite inspections and evaluations of construction operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.”

Cal/OSHA emergency regulations approved for electronic submission form 300A by December 31, 2018

The Office of Administrative Law approved the emergency regulations that businesses required to submit the Cal/OSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

Enforcement notes

California

  • Oakland-based general contractor, Bay Construction, Inc., was cited for dismantling a trench box while an employee was still working inside and later killed by a loosened support rail. The company was issued nine citations with $141,075 in proposed penalties, including five classified as general, two serious, one serious accident-related and one willful-serious accident-related.
  • Amazon Landscaping Co. faces six citations and $54,750 in penalties after a worker was fatally injured when a rope he had around his body became entangled in the stump grinder and he was pulled into the cutting wheel.
  • After a series of appeals relating to citations issued to Pinnacle Telecommunications Inc. after an employee suffered serious head injuries from a 7-foot fall from a telecommunications structure, the Alameda County Superior Court affirmed that fall-protection safety orders apply to elevated indoor telecommunications structures and the penalty of $25,560.

Florida

  • PGT Industries Inc., operating as CGI Windows and Doors Inc. in Hialeah, was cited for machine guarding hazards after an employee suffered a partial finger amputation while working on an unguarded punch press. The window and door manufacturer faces $398,545 in penalties, including the maximum amount allowed by law for the violations that can cause life-altering injury.
  • Inspected under the REP on falls, Crown Roofing, LLC, was cited for exposing employees to fall hazards, including installing roofing materials without the use of a fall protection system. The roofing contractor was issued the maximum allowable penalty of $129,336.
  • Inspected under the REP on falls, Panama City Framing LLC was cited for exposing employees to fall hazards at a worksite in Panama City. The company faces $113,816 in proposed penalties.
  • Tom Krips Construction Inc. and Etherna Services Inc. were cited after a lattice boom section of a crane fell onto an employee during disassembly, crushing his foot and ankle at a Fort Lauderdale worksite. Tom Krips Construction Inc. faces $29,877 in penalties, and Etherna Services Inc. penalties total $5,174.

Georgia

  • Dollar Tree Distribution Center, Inc., and U.S. Xpress, Inc., were cited for exposing workers to hazards after an employee was fatally struck by a forklift and face penalties of $130,112 and $12,934 respectively. Both companies were cited for failing to ensure that employees wore high-visibility vests while working at night inside the center and Dollar Tree Distribution Center Inc. was also cited for using a vehicle with a non-functioning headlight, failing to guard a nip point on a conveyor discharge belt, and storing unstable materials on racks.

Massachusetts

  • Northeast Framing Inc., based in Lunenberg, was cited for exposing workers to falls and other hazards following an employee’s fatal fall at an East Boston worksite. The company faces $311,330 in penalties, the maximum allowed by law.

Nebraska

  • Rivera Agri Inc., a provider of temporary agricultural labor, was cited for failing to protect employees working in excessive heat after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island. The company was cited for a serious violation of the General Duty Clause, and faces proposed penalties totaling $11,641.

For more information.

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

Legal Corner

ADA
PA company faces charges of hiring bias against applicants in drug treatment

The Equal Employment Opportunity Commission (EEOC) filed suit against Clearfield-based Appalachian Wood Products Inc., a major supplier of cabinet components to the kitchen and bath industry. The suit alleges that the company unlawfully barred job applicants from certain positions if they were taking prescribed medications for drug addiction treatment without evaluating whether the medications affected their ability to perform the job safely. Also, unlawfully, the company required applicants to disclose their use of medications prior to making conditional offers.

FMLA
Retaliation claim by fired auditor can go to trial

In Batson v. The Salvation Army, the 11th U.S. Circuit Court of Appeals ruled an employee who was fired after returning from medical leave and unsuccessfully applying for a position she previously held can go to trial on her retaliation claim under the FMLA. The employee, who had multiple sclerosis, was promoted to an audit manager position when the audit secretary became ill. When the audit secretary died, the new position was eliminated and around the same time the employee took FMLA leave.

When she returned to work, she was told her position was eliminated but she could apply for her old position as a senior auditor, which she did and was the only one to meet the application deadline. At the same time, a new audit secretary was hired. When she was interviewed, she was asked many questions about her health. In making the decision not to hire her, the new audit secretary noted she performed poorly in the interview, and she had “recent performance issues” as an audit manager.

The court, however, found that the health-related questions during the interview suggested the audit secretary was concerned about the need for FMLA leave, not her interview performance and had no experience supervising the applicant. Emails also suggested the audit secretary decided not to hire her because of her illness but recognized the need to come up with an alternative justification.

Employer takeaway: Under the FMLA, if a position was eliminated for legitimate reasons, reinstatement rights no longer exist. However, several mistakes were made in this process. The employee was told she could apply “as a formality” for a recently posted senior auditor position (her former position) and would be transferred and she was the only applicant to apply before the deadline. The focus on health-related questions during the interview was inappropriate and the emails during the selection process were incriminating.

Workers’ Compensation
Exclusive remedy defense can be added to case after several appeals – Illinois

In Hiatt v. Ill. Tool Works, an employee of Western Plastics was seriously injured when both his arms got caught in a metal roller and had to be amputated. He filed suit against multiple parties, including Illinois Tool Works (ITW), which sold products to Western and was housed in the same building. All suits were settled or dismissed except for the ITW case, which went on for five years and involved seven amended complaints and over 40 dispositions.

The employee claimed that ITW was engaged in a joint venture with Western and had knowledge that the machine involved in the incident was dangerous. ITW moved for summary judgment, which was granted by a trial judge, but reversed by the Appellate Court. The trial judge, on her own initiative, raised the exclusive remedy defense.

The case went through more appeals and ITW raised the exclusive remedy defense for the first time, while the employee argued the law-of-the-case doctrine, which limits re-litigation of a previously decided issue in the same case. The Appellate Court noted that its prior decision had not explicitly said ITW could not raise an exclusive remedy defense on remand and that ITW, as a member of the joint venture, is an agent entitled to the same immunity afforded to the employer by the exclusive-remedy provision.

PTD granted to worker unable to find work – Mississippi

In Harris v. Stone County Board of Supervisors, the Court of Appeals reinstated permanent total disability benefits to a maintenance worker who could not find a job after reaching maximum medical improvement for a knee injury. A functional capacity examiner found that he was able to work full-time, mostly sitting; however, he had done manual labor all his working life. A vocational rehabilitation counselor noted very limited job skills and found 12 low paying jobs, which the worker applied for without success.

After several appeals, a Court of Appeals noted a worker is presumed to be permanently and totally disabled (PTD) if he reports to work after reaching MMI but is not reinstated. The employer failed to meet its burden to prove otherwise.

Physician assistant does not meet definition of physician in workers’ comp – Nebraska

In Bower v. Eaton Corp., an employee who injured his shoulder underwent four surgeries and the company accepted responsibility for three of the surgeries. The employee appealed an award of the Nebraska Workers’ Compensation Court that concerned a number of issues, including his impairment rating.The Supreme Court held that the Workers’ Compensation Court appropriately failed to consider the medical report as evidence of the worker’s impairment. The medical report which indicated the injured worker suffered a 15 percent permanent impairment to the right upper extremity was signed by an orthopedic surgeon’s physician assistant and not by the surgeon.

Injury incurred while scanning parking pass at kiosk not compensable – New York

In a divided decision, Matter of the Claim of Shelly A. Grover v. State Insurance Fund, Workers’ Compensation Board, the Appellate Division of the Supreme Court ruled that an employee’s injuries sustained while stopping to scan her employee parking pass were not compensable. The privately-owned parking garage that she was accessing is located underneath the building where she worked. The garage is open to the public, but there is a section of the garage exclusively dedicated to employees located in the building.

Although a law judge found the injuries compensable, the Workers’ Compensation Board ruled that the incident did not arise out of and in the course of her employment and the Appellate Court agreed. The Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage.

Special employer liable for half of comp benefits – New York

A truck driver worked for Eaton’s Trucking Service, which exclusively hauled cargo for Quality Carriers. Eaton operated under Quality’s logo and license without which Eaton could not have conducted its hauling operation. When the driver filed a claim for injuries to his right hand, wrist, arm and shoulder, he identified both Eaton and Quality as his employer. Following a hearing, a WCLJ determined that the driver had an occupational disease of right carpal tunnel syndrome and found that Eaton was his general employer and Quality was his special employer, and that each was liable for 50% of the workers’ compensation awards. The Board upheld that determination.

Upon appeal to the Supreme Court’s appellate division, the court noted that while Quality did not control the day-to-day oversight of the driver, Eaton and the driver operated entirely under Quality’s authority and pursuant to its policies. The Court also stressed that when there is a general and special employer, the Board is empowered to make an award against either or both of the employers.

Ordinary supervision does not warrant claim of mental injury – New York

In Matter of Lanese v. Anthem Health Servs.,a registered nurse case manager alleged that she suffered a relapse of preexisting depression and anxiety and had to stop working as a result of harassment and bullying by her managers. The court found, however, that she was receiving normal oversight and monitoring to assist her in correcting deficiencies and improving her performance that were no greater than what other workers experienced in the normal work environment.

Work Comp case file can’t be sealed from public access – North Carolina

In Mastanduno v. National Freight Industries, an employee asked the Industrial Commission to keep the information related to his workers’ compensation claim out of the public record, which includes a searchable online data base. He was concerned the information would affect his ability to obtain a visa, his insurance premiums, his qualifications to adopt a child, and his eligibility to secure a line of credit, as well as expose him to identity theft and cyberbullying.

The Court of Appeals affirmed the denial of the request, noting the general statute specifies that all commission records, aside from awards issued by the Commission, are not public and the exclusion of awards meant that the General Assembly intended for awards of the Industrial Commission to be public.

Employee’s fall on premises after clocking out is compensable – Pennsylvania

In Wegmans Food Markets v. WCAB (Tress), a cashier had finished her shift and was walking across the store to pick up a hamburger, which she had ordered from the store’s pub. She slipped and fell and was injured.

The Commonwealth Court noted that in order to be compensable the fall must have occurred on the employer’s premises, be caused by a condition of the premises, and be required by the nature of the job to be on the premises. In this case, the first two were clearly met and the court noted that getting to and from the work station is a necessary part of employment. In Pennsylvania, injuries that occur on the employer’s premises while the worker is coming to or leaving work are in the course of employment if they occur within a reasonable period of time before or after the worker’s shift.

Supreme Court reduces burden of proof in firefighter cancer cases – Pennsylvania

While the state had created a presumption of an occupational disease for firefighters with cancer, the Commonwealth Court read the language as requiring firefighters to prove they had industrial exposure to known carcinogens that caused the form of cancer. In a recent decision, City of Philadelphia Fire Department vs Workers’ Compensation Appeal Board (Sladek), the Supreme Court lowered the burden of proof, noting that a cancer-stricken firefighter has the burden of proving the “occupational disease” but did not have to prove that an identified Group 1 carcinogen actually caused the cancer. This involves showing they spent four or more years working as a firefighter after passing a physical examination that they were cancer-free, as well as direct exposure to a Group 1 carcinogen.

Gradually incurred injury not an injury by accident and not compensable – Virginia

In Daggett v. Old Dominion Univ., an appellate court upheld the denial of benefits, noting that an injured employee must demonstrate an “identifiable incident” or “sudden precipitating event” to receive workers’ comp benefits. In this case, a shoulder injury was a result of repetitive trauma. On the day of the alleged injury, the employee repeated the same combination of movements to rotate and move 14 smart boards, each weighing between 28 and 48 pounds.

Employer must protect workers’ family from asbestos exposure – Virginia

In Quisenberry v. Huntington Ingalls, a divided (4-3) Supreme Court ruled that an employer has a duty to protect its employees’ family members from potential exposure to asbestos fibers that employees may carry home on their work clothes. The daughter of a former employee, who regularly laundered her father’s clothing, died from mesothelioma and her son filed a wrongful death suit.

In reaching its decision, the court noted there does not need to be actual interaction between the parties, so the fact that the alleged harm occurred at a location removed from the employer’s business and after hours was irrelevant. Because the shipyard owed the duty to the family members, it was susceptible to tort liability.

Bus driver’s failure to wear seat belt nixes benefits – Virginia

In Mailloux v. American Transp., a bus driver, who sustained serious injuries in an accident in which his bus was struck from behind, causing it to careen against a guard rail and flip over, ejecting the driver, was found to have violated his employer’s safety policy and disqualified from receiving benefits. The appellate court showed that he did not sustain the injuries while in the driver’s seat, but only after being ejected from the vehicle, and that the driver was aware of the employer’s safety policy requiring seatbelt use at all times. Thus, the proximate cause of the driver’s injuries was his failure to use the seatbelt and he was not entitled to benefits.

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

OSHA watch

OSHA softens hard line on workplace safety incentives and post-incident drug testing

See post – Much needed clarification from OSHA on anti-retaliation

FY 2018 preliminary list of top ten violations

See second article above – Preliminary list of top ten OSHA violations includes eye and face protection for first time

Employers targeted in record-keeping crackdown

Under this site-specific program, inspections will target employers the agency believes should have provided Form 300A data, but did not for the calendar year 2016, which had to be electronically submitted by Dec. 15, 2017. It will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection, but will not include construction worksites.

Regulatory agenda update

Released in October, the regulatory agenda had few surprises. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, Crane Operator Qualification in Construction, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, and Tracking of Workplace Injuries and Illnesses are in the final rule stage.

National Emphasis Program (NEP) on trenching and excavation safety

The updated NEP on trenching and excavation safety became effective October 1. It provides education and prevention outreach during the first 90 days of the program, and will respond to trench-related complaints, referrals, hospitalizations and fatalities. Enforcement activities will begin once the outreach program expires. State Plans are expected to follow suit.

Regional Emphasis Program (REP) addresses ammonium hazards in farming industry

Covering seven states, Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas, this REP addresses hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonium. The program began Oct. 1, 2018 with three months of education and prevention outreach and enforcement will follow and continue until Sept. 30, 2019, unless the program is extended.

Fact sheet on initiating a naloxone program

NIOSH has published a new fact sheet Using Naloxone to Reverse Opioid Overdose in the Workplace. It provides a series of steps for employers to consider when deciding whether to make the overdose reversal medication available in the workplace.

Revised webpage makes state plan information easier to find

A redesigned State Plans webpage has a new color-coded, interactive map to simplify finding contact and jurisdictional information for each state. Users can also access frequently asked questions and details about State Plan activities.

Rejection of OSHA inspection upheld – Georgia

In an unpublished decision, United States of America vs. Mar-Jac Poultry, Inc., the 11th Circuit Court of Appeals ruled that a poultry plant could not be compelled to submit to a company-wide inspection after a worker suffered an electric shock injury. The company reported the incident in a timely manner and when the inspectors requested access to the entire facility, rather than just the hazards involved in the incident, the company refused.

OSHA argued it had the right to expand the scope of the inspection based on (1) a National Emphasis Program (“NEP”) on poultry processing facilities and (2) the company’s recordkeeping forms, such as the 300 Logs. An magistrate judge held that OSHA did not have reasonable suspicion of the other hazards based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP. Upon appeal, the decision was upheld. The court concluded that the mere recording of work-related injuries or illnesses does not mean that they were the result of a violation of an OSHA standard, rule or regulation.

Cal/OSHA issues notice of emergency regulation for electronic submission form 300A by December 31, 2018

Cal/OSHA issued a notice of emergency regulation that businesses required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

30-day time limit for employer to challenge safety citation – California

In RAAM Construction v. Occupational Safety and Health Appeals Board, an appellate court ruled that a contractor has 30 days from the date of a decision by the Appeals Board to bring a challenge, without extra time to account for the mailing of the decision. RAAM argued that its petition was timely, since it was filed within 30 days of learning of the denial, but the court said the trigger of the time period is the filing of the order, not the date of service.

Enforcement notes

California

  • Cal/OSHA issued two willful-serious accident-related citations totaling $225,500 in proposed penalties to Rancho Santa Margarita-based house-framing contractor, Circle M Contractors Inc., for failure to train workers on nail guns and failure to ensure safe operation of these tools after a carpenter was seriously injured. A review of the employer’s injury log showed 34 instances of nail gun injuries suffered by employees since 2016.

Florida

  • C.W. Hendrix Farms Inc. was cited for failing to protect workers from recognized hazards after lightning struck and killed an employee at the Parkland farm. The company faces a penalty of $12,934, the maximum amount allowed.
  • Kasper Roofing & Construction Inc. was cited for exposing employees to fall and other hazards after an employee suffered fatal injuries at a Maitland worksite. The Orlando-based roofing contractor faces $134,510 in penalties, the maximum allowed by law.

Georgia

  • An administrative law judge with the OSHRC vacated a violation stemming from an incident at a chicken processing plant, Norman W. Fries Inc. d/b/a Claxton Poultry Farms, in which an employee’s arm was fractured when it got caught under a conveyor belt. The judge found inspectors failed to prove that the company did not ensure that conveyor belts were protected by a metal frame to prevent such injuries.

Massachusetts

  • Springfield Terminal Railway was ordered to pay $85,000 to an employee who was subjected to retaliation after reporting a work-related injury at its facility in Andover.
  • An administrative law judge with the OSHRC vacated in part and affirmed in part violations following a 2015 fatality at a pharmaceuticals plant in South Easton. Pharmasol Corp. successfully contested a serious violation under the general duty clause for underride hazards.

Missouri

  • An administrative law judge with the OSHRC affirmed a citation against Kansas City-based Adam Ham Construction LLC for violating residential fall protection requirements and assessed a $3,741 penalty. The owner did not follow through in contesting the citations.
  • Blue Springs-based Arrow Plumbing LLC admitted to willfully violating the safety standards to require and enforce the use of trench boxes or other trench protection techniques at a home construction site in Belton. An employee was killed when an unprotected trench collapsed on him. Along with its successor company R2 Plumbing LLC, it agreed to implement several safety enhancements and it will pay a civil monetary penalty of $225,000.

Pennsylvania

  • Harmony-based Insight Pipe Contracting LLC was placed in the Severe Violator Enforcement Program and faces $331,101 in fines following a safety inspection initiated after an employee suffered a fatal electrocution at a worksite in Johnstown. Violations included failing to develop and implement procedures for confined space entry, train employees on confined space hazards, conduct atmospheric testing before permitting entry into a sewer line, use a retrieval line, and complete proper permits.
  • Toy Factory TX LLC was cited for workplace safety violations after an employee suffered an arm amputation while cleaning machinery at the company’s Elysburg plant. Proposed penalties of $112,523 relate to hazardous energy and lockout/tagout violations.

Wisconsin

  • Dura-Fibre LLC, based in Menasha, settled a whistleblower suit and will pay a machine operator $100,000 in back wages and compensatory damages after it terminated him for reporting injuries he and a co-worker sustained.
  • Superior Refining Company LLC, based in Superior, was cited for failing to control the use and release of highly hazardous chemicals after an explosion and fire injured several employees. The company faces $83,150 in proposed penalties for eight serious violations of the process safety management procedure.
  • JBS Green Bay Inc. was cited for machine guarding violations when an employee suffered serious injuries after becoming caught in an unguarded machine. The Green Bay-based company was cited for one willful and 10 serious violations, and faces proposed penalties of $221,726.

For more information.

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

Much needed clarification from OSHA on anti-retaliation provisions

My fellow Certified WorkComp Advisor, Dustin Boss, has allowed me to share his summary of the OSHA anti-retaliation clarification that the U.S. Occupational Health and Safety Administration (OSHA) just issued.

OSHA issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing.

Why is this important? Many employers struggled to understand the anti-retaliation provisions since they were published in May 2016 in guidance materials accompanying the new regulations. Up until now, OSHA’s explanations have been extremely vague and confusing. But with this new publication, the confusion ends as the interpretation supersedes all the prior guidance on this topic.

So what changed?

OSHA clarifies that it does not prohibit workplace safety incentive programs or post-incident drug testing. It allows that incentive programs can be an important tool to promote workplace safety and health and encourages programs that reward workers for reporting near-misses or hazards and involvement in a safety and health management system.

OSHA also provides that rate-based incentive programs are permissible under the rule as long as they are not implemented in a manner that discourages reporting. If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus, or a slice of pizza, because of a reported injury, OSHA will not cite the employer under the anti-retaliation provisions as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness. It hints that the more “substantial” the reward, then the more the employer may need to do to reassure employees they are free to report without retaliation. In other words, pizza parties are back.

In addition, it states that most instances of workplace drug testing are permissible. Examples of permissible drug-testing include:

  • Random drug testing
  • Drug testing unrelated to the reporting of a work-related injury or illness
  • Drug testing under a state workers’ compensation law
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

What should employers do now?

Employers should keep in mind that the regulations do not mention safety incentive programs or drug testing policies. The discussions about prohibitions on drug testing and incentive programs were included in prior guidance given by OSHA, as is yesterday’s interpretation rolling back that position. Thus, this position could change with the next election. For now, employers have some more certainty that the current OSHA is not going to pursue these types of retaliation claims unless there is some strong indications that the employer took action to discourage reporting.

That said, employers need to remember that the key aspect for determining whether their incentive programs are OSHA “compliant” is to treat all employees in a consistent manner and ensure that employees feel free to report an injury or illness.

Regarding employer drug testing programs, to strike the appropriate balance, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

For additional information, see OSHA’s memorandum entitled, “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv).”.

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

Are Employees Covered when they leave the state? Maybe Not!

You have a workers’ compensation policy that covers your employees. So when your employee travels for work, you assume that they are covered should they be injured while “on the job”. Assuming wrong, and you may be opening up your own checkbook. Where the employee goes to, and how long they are there, does have barring on if your employee’s injury is covered.

On Monday, March 12th, 2018, I posted my monthly Legal Corner blog post about recent case rulings that impact employers when it comes to HR & Safety Compliance as well as Workers’ Compensation. After every blog post I usually receive a dozen or so calls or emails from people that were looking for more information on the subject of the post, however, in this post’s case, I have received a hundreds of questions, from employers to insurance agents, stemming from one specific Workers’ Compensation Case Law Ruling in that Legal Corner post.

Here is the case I referenced: Employer discovers lower quote does not mean same coverage when out of state accident is not covered – Indiana

Custom Mechanical Construction (CMC) is an Indiana-based mechanical contractor but is authorized to do business in Kentucky. Since its establishment in 2005, it had used the same insurance agent and the same carrier for workers’ comp. In 2015, the agent solicited bids from other carriers and secured a $3,000 lower quote. The company claims that it was led to believe that the coverage was the same. When a CMC worker was injured on a job in Kentucky, the carrier filed suit in a federal trial court in Indiana seeking a judicial determination that its policy does not cover claims from Kentucky. CMC counterclaimed that the carrier wrongly and unreasonably denied coverage, and that the broker is liable for failing to procure adequate coverage. The judge found that CMC had no viable claim for bad faith nor negligence and that the broker was not an agent of the carrier. Accident Fund Insurance Co. of America v. Custom Mechanical Construction.

So, does a workers’ compensation policy have a coverage territory/travel restriction? The answer is yes/no.

The Employers Liability portion of the policy provides coverage for suits brought in the USA, its territories or possessions, or Canada. Sounds fair, and aligns with your business auto and general liability policy definitions of a coverage territory. If you are doing business only in the USA and Canada, you might think you are OK. If your employee travel outside of the USA and Canada, even for a day, you need to make sure you have Foreign Voluntary Workers’ Compensation Coverage, and should also make sure you have appropriate liability coverages as well.

However, the Workers’ Compensation portion of the policy does not define a territory, so that sounds even better does it not?  Not really. It does something that should cause all employers to ask more questions. A Workers’ Compensation policy provides statutory coverage for an employer for the specific state(s) listed in 3. A. on the declaration page of the workers’ compensation policy. So two little, abbreviated letters, in one big, multi-page policy actually defines where you have coverage

If you have physical locations in MD, NY and PA, and MD, NY, and PA are listed in 3.A. of your policy, you think you are all set. But what if your employee travels to NJ, VA, DC, NY or OH?

What if you have a telecommuter that works from home in another state? What if you have a employee that lives in OH but works from your PA location, but then travels back into OH for business purposes? This is where things actually get confusing.

With 50 states, and several territories including PR & DC, explaining all possible variations would cause this to be an extremely long blog post, so I am not about to address every issue. Therefore, I am going to point out the key issues you need to look into to make sure you are properly covered. The best thing to do, is to ask questions.

  • Effective Date of the Policy – The workers’ compensation policy defines that you have coverage for the states listed in 3.A. of the declaration page.  It also defines that if on the effective date of the policy.  If you have employee(s) working in another state not listed in 3.A. on your actual renewal date, or have an ongoing operation in another state, you do not have coverage in that state during the remainder of that policy year. It does have a provision to allow you 30 days from the effective date to inform the insurance company.  If you forget, you have an issue.
  • With 50 states, and several territories including PR & DC, each state and territory has their own rules. The two key provisions you need to understand are:
    • Extraterritoriality – what your state’s workers’ compensation laws allows in terms of coverage when an employee leaves the covered state.  A state may provide coverage for an unspecified period of time, or it might allow for a limited number of days such as 30 or 90 days.  If you meet the extraterritoriality provisions, your employee may be covered when out of the covered state
    • Reciprocity – is whether or not the state’s workers’ compensation laws, of the state that the employee is in when injured, allows allow the your policy to provide coverage for the employee in that state while there.  A state’s law may allow another states coverage to ally for an unspecified period of time, or it might allow for a limited number of days such as 30 or 90 days, or not allow any coverage to extend to that state.  Therefore, if that state does not allow your coverage to extend to the state, you would need to add that state as a covered state in 3. A.
    • For example, due to OH reciprocity with PA, a PA based construction employee can work in OH for up to 90 days in any 12 month period before the employer would need to purchase OH workers’ compensation coverage for that PA employee. (Note: an OH BWC employee has recently told me this is now 30 consecutive days.) However, if that PA employee travels to a NY jobsite, even for a day, the employer would need to purchase NY workers compensation due to the NY reciprocity rules.  A similar rule applies to an construction employee going to work in FL.
  • All States Endorsement – Many employers believe they have coverage in every state as some insurance agents leave them to believe that since there may be a provision that says something like “all other states…” is listed in Other States Coverage of 3.C. on the declaration page.  There is no such thing as a “All States Endorsement”. If you look at it closely, at best, it will state “All other states except 3.A and monopolistic states”. Plus, once again, with 50 states, and several territories including PR & DC, each state and territory has their own rules.
    • Other states (“3.C.”) coverage allows the your workers’ compensation policy to comply with the statutory benefits required by the other state where an employee is injured but in which you do not currently have on-going operations, and do not plan to have on-going operations during the policy period.  If you did, doing so would require that state to be scheduled as a primary coverage state in 3. A. Employees injured while working in a listed 3.C. state will receive the benefits under that state’s law if made necessary by law or court decision. Basically, the workers’ compensation policy responds and pays benefits in listed 3.C. states just as if the state was scheduled under 3.A.
    • Monopolistic States – OH, WY, WA, ND – are states that the only way to provide coverage in that state in section 3 of a policy is by purchasing coverage from that state’s workers’ compensation bureau.  No insurance company can provide coverage in those state, however, your states’ extraterritoriality or that monopolistic state’s reciprocity may allow for temporary coverage.
    • However, do not assume that if a state is listed in 3.C. that you have coverage as the listed state my not allow that due to reciprocity rules.  I point out once again, that NY will require a contractor to have NY in 3.A., and not 3. C. for even 1 day of work.
    • Although there might be a small charge on your policy, listing your bordering states, or ones you frequently travel to, might be a good idea.
  • Telecommuting employee – if you have an employee that lives and works from home in another state, although you as an employer do not have a physical location in that state, you do have an ongoing operation in that state.  Therefore, you need to add that state to your policy and list it in 3.A.
  • Employee Residing out of state – you may have an employee that lives in one state, and commutes to your state to work.  If they are injured in your state (listed in 3.A.), than your workers’ compensation policy will respond.  However, if that employee needs to travel back into their state of residency for business purposes, most likely their state’s laws will supersede your state’s laws, or the employee may chose to file for that states benefits especially if they are higher than in your state.  Either way, you may need to have coverage in any state that an employee both resides and works in.
  • Subcontractors
    • Should you hire a subcontractor that is based out of another state, you need to make sure that they have coverage in your state.
    • If you are hiring a subcontractor to work for you at a job in another state, you need to make sure you have coverage in 3.A of that state.  If that subcontractor somehow ends up not having workers’ compensation coverage, you as the hiring “general” contractor would be responsible to provide the statutory coverage in that state.

I cannot spell out every variable that you may be thinking of when it comes to your operations and employee travel, the main point of this post is help to create more awareness that you should not assume that your workers’ compensation will cover your traveling employees. You should speak with a Certified WorkComp Advisor, or an experienced agent, and make sure you get your answers in writing.

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