Legal Corner

FMLA 
PTSD triggered by supervisor warrants suit reinstated under FMLA but disability charge dismissed under ADA

In Cindy Tinsley v. Caterpillar Financial Services Corp., a former financial services worker complained about a hostile work environment created and allowed by her supervisor (allowing coworkers to bounce stress balls off the ground), unrealistic deadlines and excessive workload. She requested a transfer or leave and was granted the leave, but not the transfer. Shortly after completion of 18 weeks of leave, she received a negative performance review and was placed on an improvement plan, which she would not sign. She then retired because the company denied her requests for additional leave or a new supervisor.

She filed lawsuits alleging Caterpillar had violated the ADA by not providing her with reasonable accommodations and had retaliated against her for making an FMLA claim. While she argued her PTSD limited only her ability to perform the major life activity of “work,” the three-judge panel of the 6th Circuit upheld the dismissal because her PTSD did not substantially limit her from performing a class of jobs or broad range of jobs.

The ruling, however, reinstated her FMLA retaliation charge. It said she had succeeded in making the prima facie case of availing herself of a protected right under the FMLA and that the company had not provided a legitimate, non-discriminatory reason for the adverse employment action. The case was remanded to the district court.

Workers’ Compensation 
Bunkhouse rule means farm-related injury compensable – California

In Gonzalez v. Athwal Farms, a farm worker lived on the farm in a rented trailer and was seriously injured on a Sunday when he was driving across the farm to check several agricultural pumps before heading to a store. Prior to the accident, he had been drinking beer with friends. The “Bunkhouse Rule,” which applies when the nature of work necessitates the employee live on the employer’s premises and the injury has a causal relationship to the employment, was applied by the WCJ and affirmed by the panel. While evidence was presented that the employee had consumed four to eight beers, the farm failed to establish an affirmative intoxication defense.

IMR physician required to review entire record – California

In Bowen v. County of San Bernardino, the WCAB affirmed the WCJ’s decision granting the applicant’s appeal of the denial of the continued use of the prescription drug, Norco. While the IMR found that there was no documentation of functional improvement with the use of Norco, the reviewer had not looked at all the submitted reports nor considered the entire record prior to rendering the determination.

Asbestos exposure has very long tail – Florida

In Meehan v. Orange County Data & Appraisals, an appellate court overturned a judge’s decision allowing an employer to end its coverage of asthma medications for a worker who suffered breathing problems after exposure to asbestos in the late 1990s. Fifteen years later, the employer terminated coverage for treatment based on a peer review of the case.

The judge found the doctor for the insurer who determined that treatment was no longer necessary more credible and approved the termination. The appeals court reversed, finding that no “competent, substantial evidence” existed to deny treatment and that the employer and the insurer had accepted the claim as compensable. Once the compensability of an injury is established, an employer cannot challenge the causal connection between the work accident and the injury.

Employer must authorize treating physician but cannot be compelled to pay excessive fees – Florida

In MarineMax Inc. v. Blair, a worker who had received treatment after a fall from a ladder sought to resume treatment with the same physician. The physician had begun his own practice and demanded payments in advance which were beyond legislative statutory rates. The company authorized treatment with another physician but the employee refused, arguing he had an existing patient-physician relationship.

A judge of compensation claim (JCC) ordered the employer to “authorize and pay” the doctor, but a majority of the District Court of Appeals reversed in part. While it acknowledged that the company could not “deauthorize” the doctor, the company could not be compelled to provide payments that exceed the applicable fee schedules.

Fall during lunch break not compensable – Georgia

In Daniel v. Bremen-Bowdon Investment Co., an employee on lunch break was walking to her car, which was parked in the employer’s lot. She fell on a public sidewalk on the way to her car. While an ALJ found she was entitled to benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

State law provides an “ingress and egress” rule, which allows benefits if the injury is on employer’s premises in the act of going to or coming from the workplace. However, there is a “scheduled break exception,” which does not allow benefits for injuries occurring during a regularly scheduled break when the worker is free to do as he/she chooses. Since the injury occurred while she was leaving her workplace during her regularly scheduled lunch break, it was not compensable.

Supreme Court to decide whether workers’ compensation settlement can be exempt in a bankruptcy proceeding – Illinois

In Re Hernandez, No. 18-1789, the 7th U.S. Circuit Court of Appeals certified the question whether the proceeds of a workers’ comp settlement can be exempt from the claims of medical care providers who treated the injury or illness associated with that settlement. When the worker filed for Chapter 7 bankruptcy, she reported as exempt her pending workers’ comp claim, which was settled for $31,000 two days after her filing. She owed over $125,000 to three health care providers.

The circuit said it was not willing to decide because the Act never said which assets were available to healthcare providers and both parties had plausible arguments.

Discrimination suit not barred by exclusive remedy – Minnesota

In a split decision, the Supreme Court ruled that an employee, who sustained a work-related injury and who was receiving workers’ compensation benefits, may proceed with a suit against his employer under the state’s Human Rights Act (“HRA”). In Daniel v. City of Minneapolis, a firefighter received workers’ comp for injuries to his right ankle and was reimbursed for the cost of a pair of tennis shoes, rescue boots and orthotic inserts.

After a few weeks he was told he could not wear the black tennis shoes because they did not comply with the Department’s policy for station shoes. He reinjured his ankle and later injured his shoulder when he lost his footing.

He was placed on light duty, but not allowed to wear the tennis shoes, which he considered necessary to perform the light duty.The Department then placed him on leave and said he could return if his work restrictions allowed him to wear shoes that were compliant with their footwear policy. While there were several meetings to try and find a shoe that would work for both parties, no agreement was reached.

The firefighter alleged that the city had violated the HRA by not providing the reasonable accommodation of allowing him to wear doctor-prescribed shoes inside the station house. He also alleged that the city retaliated against him for requesting an accommodation. A trial court determined the claim under the HRA was not barred because the workers’ comp act did not provide a remedy for his discrimination claim; however, a court of appeals reversed. The Supreme Court held that the employee could pursue claims under each act (Workers’ Compensation Act and Human Rights Act) because they each provide a distinct cause of action that redresses a discrete type of injury to an employee.

Disability benefits can’t offset TTD award – Minnesota

In Bruton v. Smithfield Foods, the Supreme Court has ruled that an employee’s claim for temporary total disability benefits cannot be offset by benefits paid to the employee for the same period of disability under the employer’s short-term disability plan. While the court recognized the decision penalized the employer for their wage-loss benefit, it noted “there is no statutory authority for an offset of workers’ compensation benefits by the amount of benefits paid under an employer’s self-funded, self-administered STD plan in state law governing workers’ comp.”

PTD award not properly challenged, but medical payments reduced – Missouri

In Customer Engineering Services v. Odom, an employee suffered serious injuries while moving a 250-pound photo printer. When he reached MMI, he still had pain and his personal doctors found he had complex regional pain syndrome. For some time he received physical therapy and pain management covered by his wife’s insurance, totaling $36,539.

He never returned to work and an ALJ found him to be permanently and totally disabled. The company appealed, but an appellate affirmed the ruling. The court said the rules of appellate procedure require CES to support all the factual assertions in its argument with specific page references to the record, and the company failed to comply. It also noted the company ignored the evidence that supported the PTD award and focused only on evidence that supported its position.

The court, however, reduced the medical liability by $2,510 since the employee received some treatment before informing the employer of the need for continued treatment.

Contractor liable for injuries to subcontractor’s employee – Nebraska

In Martinez v. CMR Construction & Roofing, the Supreme Court ruled the contractor was the statutory employer of a man who sustained serious injuries after he fell off a roof, even though he was acting as an employee of a subcontractor. Texas-based CMR had verified the subcontractor’s workers’ comp insurance and directed the subcontractor to add the company to the policy and produce a certificate demonstrating that the company would be notified of any changes to the policy.

After the accident, it learned the subcontractor’s insurance had been cancelled a few months earlier for nonpayment. CMR appealed the decision of lower courts arguing it did not qualify as a statutory employer because it required its subcontractor to obtain workers comp insurance. However, the Supreme Court disagreed, noting the Texas-based comp insurer had never been authorized to issue workers’ comp coverage in Nebraska and that the policy clearly showed that coverage did not extend to states other than Texas.

Court weighs in on comp benefits for medical marijuana – New Hampshire

In Re Appeal of Panaggio, the Supreme Court said the state’s medical marijuana laws do not bar a request for reimbursement, overruling a decision by the Workers’ Compensation Appeals Board. While it found workers’ compensation insurers provide payments for medical treatments and that they may be subjected to the same state statutes that cover medical cannabis as a viable medical treatment, it failed to address the question of whether such a practice conflicts with federal law. The court remanded the question back to the Board.

Retroactivity question key to indemnification of contractor – New York

In Guthorn v. Village of Saranac Lake, a project manager of a subcontractor fell from a ladder and suffered injuries. While the contractor had drafted a subcontract that required the subcontractor to indemnify the contractors against any claims arising out of its work on the project, the subcontractor began work and the injury occurred before the contract was executed. When the contractor discovered it did not have an executed contract, it sent another subcontract agreement, which was executed, including the indemnification clause.

The Appellate Division, 3rd Department noted that the Workers’ Compensation Law requires an express written agreement for indemnification. An indemnification agreement executed after a workers’ accident can be applied retroactively if the agreement was made prior to the incident and the parties intended to apply it as of that date. The court denied summary judgement, noting a question regarding whether the agreement was intended to apply retroactively.

Company car does not make injury during commute compensable – North Carolina

In Wright v. Alltech Wiring & Controls, an appeals court denied benefits to the widow of employee killed in auto accident. The company provided a vehicle to the worker who visited client job sites to prepare estimates. His normal routine was to go to the office before visiting the job sites and return to the office at the end of the day. He used the company car for the commute to and from work.

One day, after leaving work he spoke to the owner of the company briefly on his cellphone, then stopped at a Target store. After leaving Target, he was in a vehicular accident on his normal route and died from his injuries. The widow filed for comp benefits, but an appeals court upheld the findings of the Commission that the death did not occur in the course and scope of his employment. In most cases, injuries occurring during a worker’s commute are not compensable, and the company handbook made it clear that commuting to and from work was not considered work time.

Forum state means wrongful death claim is subject to a subrogation lien – North Carolina

In Walker v. K&W Cafeterias, a truck driver was killed in a motor vehicle accident while driving for his employer in South Carolina. His widow was awarded $333,763 in workers’ compensation death benefits in North Carolina. She also filed a wrongful death claim against the at-fault driver in South Carolina, which was settled for $962,500, most of which came from underinsured motorist (UIM) coverage.

The employer sought and was awarded a subrogation lien for the total amount of death benefits. While South Carolina law does not allow for subrogation of UIM proceeds for workers’ compensation benefits, the N.C. Court of Appeals noted under traditional conflicts of law, procedural and remedial issues are determined by the law of the forum where the remedy was sought. Subrogation rights on UIM funds are procedural and remedial in nature and the forum where relief was sought was North Carolina.

Domestic service exception nixes benefits for in-home caregiver – Pennsylvania

In Van Leer v. Workers’ Comp. Appeal Bd, the Commonwealth Court ruled that an in-home caregiver was not eligible for comp benefits. The caregiver worked for a woman suffering from mild dementia and her primary responsibilities were to get the woman ready for bed, make sure she got her medications and stayed in bed throughout the evening.

The workers’ comp act is not applicable to any person “who at the time of injury is engaged in domestic service,” which is based on whether the worker serves “the needs of the household.” The court upheld earlier decisions that the caregiver’s job duties consisted entirely of service to members of the household. In this case, the dementia patient was the household.

Injuries while attending mandatory off-site training not compensable – Virginia

In City of Va. Beach v. Hamel, an appellate court reversed an award of comp benefits to a licensed professional counselor who was injured when she tripped and fell over raised tree roots when she was attending an off-site mandatory training. The court noted that while the counselor may have been mandated to attend the meeting at a community college, she had not been told where to park or which route to take to the building. Her risk of falling was equal to that of any member of the general public.

Electrocuted airport worker not entitled to benefits – Virginia

In O’Donoghue v. United Continental Holdings Inc., a divided appeals court upheld the decision of the Workers’ Compensation Commission that a United Airlines Inc. employee’s injuries were caused by “an act of God” and not compensable. The employee was a ramp serviceman loading and unloading airplanes. The ramp was temporarily closed during a thunderstorm and when it reopened the worker positioned a metal ladder next to the airplane that had just arrived. When he touched the toggle switch to open the cargo door, he felt electricity go through his body and reported he had been struck by lightning.

Under the statute, the mere occurrence of an injury due to a lightning strike while at work is insufficient; it must be proved that the conditions of the employment collaborated in causing the injury. It could not be assessed whether being injured by a lightning strike was an actual risk of the conditions of employment, thus, it was not compensable.

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

Things you should know

NSC survey: 75% of employers affected by opioids

Seventy-five percent of U.S. employers say they have been directly affected by opioids, but only 17% of them feel “extremely well prepared” to manage the issue, according to a survey by the National Safety Council. 38% have experienced absenteeism or impaired worker performance as a result of drug use and 31% have had an overdose, arrest, a near-miss or an injury because of employee opioid use.

In spite of the results, employers say they are more concerned about hiring qualified workers, employee benefits costs and worker compensation costs than they are about employee use of legal prescription opioids or illicit use/sale of opioids.

April is distracted driving awareness month

It’s another opportunity to remind employees of the dangers of distracted driving.

Draft brewery resources

The expansion of the craft brewery industry is continuing at a rapid pace and WorkSafeBC has produced resources to assist brewery and distillery employers with their health and safety programs. They include a downloadable guideposters, and a videofeaturing Red Truck Beer Company’s approach to safety.

EPA training designed to help prevent paraquat poisonings

The Environmental Protection Agency is offering training intended to help prevent poisonings among workers who apply the toxic herbicide paraquat, as required by agency regulations.

Guidance on lifting during and after pregnancy

The American College of Obstetricians and Gynecologists has guidance on appropriate limitations throughout pregnancy and immediately after giving birth.

State News

California

  • The number of prescriptions for drugs that do not require a utilization review under the year-old workers’ compensation formulary increased to 38.5% in 2018, up from 35.2% in 2017, and payments for drugs not listed on the formulary increased by more than 10 percentage points, according to the Workers’ Compensation Research Institute.
  • State Fund announced it has launched SafeAtWorkCA.com, a new online safety resource designed to help employers protect their workers and build cultures of safety.
  • The Division of Workers’ Compensation updated four chapters of the state’s medical treatment guidelines, and added a new section covering post-traumatic stress disorder and acute stress disorder.

Illinois

  • The Department of Insurance no longer requires a narrative when errors are discovered in carriers’ aggregated data reports.
  • The legislature approved a bill that allows some workers to sue their employers for occupational injuries, specifically those that have passed the statute of limitations. Currently, an employee’s exclusive remedy lies under either the Workers’ Compensation or Occupational Disease Acts. The new bill allows workers who suffer a disability due to exposure to asbestos more than 25 years after the last exposure not only to file a civil action, but also no longer be confined to the limitations on compensation under the Occupational Diseases Act. The bill was sent to the governor’s office.

Virginia

  • Maximum and minimum compensation rates will increase, by about 1.85% on July 1, the Workers’ Compensation Commission announced. The maximum compensation rate will increase to $1,102 from $1,082, while the minimum rate will increase to $275.50 from $270.50. The reimbursement rate of 55.5 cents per mile has not changed since October 2011.

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

OSHA watch

2020 budget proposal

President Trump’s proposed budget calls for a $300,000 increase in the agency’s budget, but includes an increase of almost $4 million for safety enforcement and workplace inspections and the number of full-time equivalent workers at the agency will increase by 33. Whistleblower protection is also slated to receive an extra $1.1 million, and the number of federal inspections budgeted in 2020 is projected to rise by about 300 to 33,133.

Six states sue over electronic reporting rollback

Illinois, Maryland, Massachusetts, Minnesota, New Jersey and New York are challenging the “illegal and unjustified attempt to roll back (the regulation’s) requirements for the public reporting of workplace injuries and illnesses…” in State of New Jersey v. R. Alexander Acosta. The states allege the Administrative Procedure Act was violated when the agency changed its course without a “reasonable explanation” for its new policy.

Input on powered industrial trucks sought

Request for Information published in the March 11 Federal Register seeks input to aid in a possible update of the powered industrial trucks standard (1910.178). This standard covers forklifts, fork trucks, tractors, platform lift trucks and motorized hand trucks, among others.

Comments on the RFI are due by June 10.

New trenching and excavation videos

A free 11-minute video highlighting the importance of soil classification when planning trenching and excavation work has been released in English and Spanish.

The Region 6 Training Institute Education Centers recently released a video on trenching and excavation safety. The one-hour video addresses best practices, cave-in protection, resources and other hazards workers encounter in trenching.

Registration is required to access the video.

Revised webpages address safety in the agriculture and maritime industries

The Agricultural Operations webpage was revised to make it easier for users to find safety information on agriculture-related hazards, such as grain bins and silos, heat, machinery, pesticides, and other chemicals.

The revised Maritime Industry webpage offers compliance materials, training information, and other resources to eliminate hazards in longshoring and marine terminals, commercial fishing, and shipyards.

Enforcement notes

California

  • Santa Ana-based Aardvark Clay & Supplies Inc., a ceramics firm, faces more than $250,160 in penalties for willful failure to properly guard equipment after an employee was fatally entangled in a clay manufacturing machine. Although the manufacturer had provided safety guards for the machinery, the employer removed the guards.
  • Underground Construction Co., Inc. of Benicia received three citations and proposed penalties of $27,000 after two of its employees contracted Valley Fever. The workers were exposed to the fungal disease while using hand tools to dig trenches in Kings, Fresno and Merced counties-areas where the soil is known to contain harmful spores that cause the infection.
  • West Coast Land and Development Inc., based in Concord, faces fines of $26,540 for eight violations after a worker was crushed to death by vertically stacked plywood at a San Rafael construction site.

Florida

  • Two contractors, PCL Construction Services Inc. and Universal Engineering Sciences, were cited for safety violations after two employees suffered fatal injuries at a worksite for the new JW Marriott Hotel in Orlando. Inspectors found the contractors failed to inspect formwork, shoring, working decks, and scaffolds properly prior to construction to ensure that the equipment met the required specified formwork drawings. The contractors collectively received three violations totaling $157,792 in proposed penalties, including one willful citation to PCL.
  • The Higgins Group Corp., operating as Higgins Premium Pet Foods, faces $95,472 in penalties for exposing employees to amputation, fall, and other safety hazards at its facility in Miami.
  • Ammunition manufacturer, AMTEC Less Lethal Systems Inc., faces $188,290 in penalties for multiple serious violations, and a willful violation after an explosion fatally injured two workers at the company’s Perry facility.
  • Brinker Florida Inc., operator of a Chili’s Grill and Bar restaurant in Doral, was cited for exposing employees to burns, falls, and other hazards after an employee suffered burns when falling from an unguarded platform into a hot water bath. The company faces proposed penalties totaling $62,513.
  • Roofing and waterproofing contractor, TarHeel Corp., faces $32,013 in penalties for failing to provide employees with fall protection systems and to properly train their employees after an employee suffered fatal injuries in a fall at the Forest Glen Community in Naples.
  • Venice-based Olin Landscaping faces $16,102 in penalties for failing to protect employees from heat-related illnesses and injuries and failing to report a workplace fatality to OSHA within 8 hours, as required.

Georgia

  • Inspected under the National Emphasis Program (NEP) on Trenching and Excavation, Corley Contractors Inc., based in Dallas, faces $106,078 in penalties for exposing employees to excavation hazards while installing water and sewer lines at a worksite in Acworth.
  • Inspected under the Regional Emphasis Program on Lead, U.S. Battery Manufacturing Co. is facing $115,594 in fines for exposing workers to lead, unguarded machinery, and other safety hazards at its facility in Augusta.

Massachusetts

  • The DOL has filed a lawsuit against Boston-based contractor Tara Construction Inc. and its chief executive officer, Pedro Pirez, alleging that they retaliated against an injured employee by facilitating his arrest. The worker incurred a serious injury when he fell from a ladder and reported it to DOL. The Department alleges that shortly after the employee engaged in protected activities, the defendants initiated a law enforcement investigation and facilitated the employee’s detainment by U.S. Immigration and Customs Enforcement.

Nebraska

  • Western Engineering Company Inc. faces $89,032 in penalties when an employee suffered fatal injuries after being pulled into an unguarded slat/drag conveyor at the company’s North Platte asphalt plant. Serious violations related to machine guarding, lockout tagout, confined spaces, and air monitoring.

Pennsylvania

  • Warminster-based Etna Construction Inc. faces $208,560 in fines for failing to protect its workers against trenching hazards at a Philadelphia worksite.

Virginia

  • Virginia Occupational Safety and Health issued 12 citations and $528,692 in penalties to T.D. Fraley & Sons, Inc., after a worker who was removing scaffolding sections received an electric shock from contact with a power line.

Wisconsin

  • Nemak USA Inc., based in Sheboygan, faces penalties of $26,520 for two serious health violations, the maximum penalty allowed by law, for exposing workers to metalworking fluids used on aluminum after three employees were diagnosed with occupational hypersensitivity pneumonitis, a debilitating lung disease.
  • In Secretary of Labor v. Packers Sanitation Services Inc., an administrative law judge with the OSHRC held that Packers Sanitation Services, based in Kieler, failed to guard a quill puller machine and ensure walking services were safe for employees and upheld the assessment of nearly $20,000 in citations.
  • A follow-up inspection of Avid Pallet Services LLC of Beloit found that the company failed to implement sufficient engineering controls to limit dust exposure, as well as train employees on the health hazards of wood dust. The company faces penalties of $188,302 for repeat, serious, and other-than-serious safety and health violations.

For additional information.

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

PPE and women: 13 do’s and don’ts

The recent cancellation by NASA of the highly publicized first-ever all-woman spacewalk is a good reminder of the importance of proper fitting PPE. Even with extensive training on the ground, getting the right fit for a spacesuit in microgravity can be a challenge since the body changes slightly in space due to fluid shifts or spine elongation.

Only one suit for a medium-size torso, which is the size that best fits the two astronauts, is ready for use on the station. While the decision was made by one of the astronauts who thought a large-size suit would be fine, but after a spacewalk a week earlier decided the medium-size was a better fit, it was met by some with disbelief on Twitter. The number of women entering traditionally male-dominated fields continues to grow and many have encountered improperly fitting personal protective equipment (PPE) and personal protective clothing (PPC). (The two female astronauts were part of a class that had 50/50 gender representation.)

According to The Washington Post, “Across social media platforms, women told of giant overalls, wading boots that were the wrong size, oversize gloves that kept them from being nimble, a lack of bulletproof vests that accommodated their chest sizes and a dearth of petite-size personal protective equipment at construction sites.”

While there is increased awareness and significant strides have been made in PPE for women, the fact remains that most PPE was designed based on average male body measurements and it has only been in recent years that manufacturers have tailored PPE to women. When there are products specifically designed for women some worksites just don’t have them readily available.

The best practices of providing PPE for women are very similar to those for men. Here are 13 do’s and don’ts:

  • Don’t assume your PPE is appropriate for all of your employees. Find out what is and isn’t working by getting feedback from employees. Monitor the use and identify situations where it is not used when it should be.
  • Don’t ask women to wear PPE that is too big. It is not going to provide adequate protection and in some cases creates even more serious safety risks.
  • Don’t alter PPE. It should be certified to specific standards, and alterations beyond built-in adjustment features can make the garment no longer compliant – and unsafe.
  • Don’t subject women to derogatory remarks or disingenuous humor about how they look in PPE.
  • Don’t assume women are only concerned about “how it looks.”
  • Don’t criticize, ignore, or retaliate against employees who report ill-fitting PPE.
  • Don’t penalize employees who refuse to work when appropriate PPE is not available.
  • Do involve employees in the selection of PPE.
  • Do provide the same range of sizes for women as for men, and ensure suppliers have properly assessed the appropriateness of their equipment to women and men.
  • Do ensure employees try on several sizes or types of PPE before it is issued to ensure the best fit.
  • Do educate employees about why the PPE is to be worn and train how to properly use it.
  • Do make appropriate provisions for pregnant women.
  • Do get supervisor buy-in.

The gender pay gap is substantially less in many non-traditional jobs than in other professions, and training and apprenticeships present great opportunities for women. Yet, as noted in the Construction Productivity Blog, “recruitment bias, company cultures where harassment isn’t thoroughly addressed and even reasons as simple as tools and gear not made for women in mind, also all play a critical role into why more women aren’t considering building as a career.”

Attracting women to non-traditional fields can help industries deal with an acute labor shortage and have economic benefits. According to the Peterson Institute, construction companies that were in the top 25% in gender diversity of their workforce were 46% more likely to outperform their industry average. Providing the right PPE is another way companies can recruit and retain more female talent.

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

Understanding OSHA’s general duty clause

Often referred to as the general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires that employers provide “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm…” It’s only used where there is no standard for a particular hazard and citations must be serious and/or willful violations. The citation is for the hazard, not for a particular incident or lack of a particular abatement method.

2003 OSHA Letter of Interpretation clarified the elements necessary to prove a violation of the General Duty Clause:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed
  • The hazard was recognized (a recognized hazard exists if the hazard is recognized either by the employer or by the employer’s industry)
  • The hazard was causing or was likely to cause death or serious physical harm (Establishing whether a hazard is serious is similar to how OSHA classifies a serious violation for its standards, the Field Operations Manual states)
  • There was a feasible and useful method to correct the hazard

While this criteria can make it difficult for OSHA to prove a violation, OSHA’s use of the clause has expanded over the years and many are concerned about its use as an enforcement mechanism and the confusion it creates for employers. Increasingly it’s been applied to ergonomic, heat-related, and workplace violence hazards. Two recent cases have tested the use of the clause:

Heat-related hazards

Secretary of Labor v. A.H. Sturgill Roofing Inc., was a closely watched case in which serious citations were issued against the company for not adequately implementing a heat illness prevention program and not providing adequate training to employees on heat related hazards. A temporary employee who had various pre-existing medical conditions experienced heat stroke and died three weeks later from complications.

His responsibility was to stand near the edge of the roof where other employees brought him a cart full of cut-up pieces of roofing material that he then pushed off the roof into a dumpster. The foreman encouraged all employees to utilize the access to ice, water, rest and shade, without fear of reprisal. By late morning, the temperature rose to about 82°F with 51% relative humidity.

The citations had a negative effect on the employer’s bidding opportunities and it appealed the decision. An administrative law judge affirmed the citations, but the Occupational Safety and Health Review Commission (OSHRC) vacated the citations against the commercial roofing company. In so doing, it noted that the citations did not meet two of the required elements – the existence of a hazard and a feasible means of abatement. OSHA had defined the hazard as “excessive heat” but, according to the commission, to constitute a cognizable hazard under the clause, a worksite condition must pose more than the mere possibility of harm. The conditions at the jobsite were not such that they would put a reasonable employer on notice.

While employer representatives welcomed the decision, experts caution that the decision turned on a very specific set of facts and the commission did not state that the clause could never be used to cite employers for such hazards. The possibility of an OSHA appeal exists.

Workplace violence

In Secretary of Labor v. Integra Health Management Inc., a 25-year-old recent college graduate with no prior experience in social work or working with the mentally ill was hired by Integra, a Maryland-based company, and assigned to a client with schizophrenia. Integra employs service coordinators to help its clients, who are identified by health insurers as not receiving appropriate care for chronic medical conditions including mental illness. It provides training in various manners, but employees are not clinically trained.

Unbeknownst to Integra and the referring health insurer, the client had a prior criminal record, including aggravated battery and assault. He attacked the employee with a knife, stabbing her nine times and killing her. In the Integra case, the commission was asked for the first time to decide whether workplace violence is a recognized hazard that the employer must remove from its workplace, according to the decision.

The administrative law judge affirmed an OSHA citation issued to Integra alleging a violation of the general duty clause for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.” The OSHRC affirmed, noting a direct nexus between the work being performed by Integra’s employees and the alleged risk of workplace violence and feasible measures to abate the hazard as recommended by OSHA.

While affirming the citation, the Commission expressed concern about OSHA’s use of the general duty clause to address workplace violence risks. Chairwoman Heather MacDougall, who recently resigned, noted, “My hope is that this precedent will be revisited in a future decision and, even better, that OSHA will continue in its effort to promulgate a standard that addresses workplace violence.”

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

Occupational health and safety risks now top cost disruptor

Employers looking to boost the bottom line would be smart to closely examine the costs of their health and safety incidents. While high-profile disruptions such as cyber-attacks, IT outages, or extreme weather get more attention, health and safety incidents are the leading financial loss drivers for businesses around the globe, according to the BCI 2019 Horizon Scan. The eighth report in the series analyzes the risks and threats recognized by 569 organizations worldwide, comparing them against the impact of actual disruptions in the past year.

Employers perceive occupational and health issues to be low risk (ranking #12) in the coming 12 months; yet, it was the most frequent and costliest cause of disruption in the past 12 months. It cost companies $1.1186 billion, almost four times the $307 million for IT disruptions and eight times the $144 million for cyber-attacks. Further, the report notes that there is a likely relationship between the health and safety incidents and the high costs of reputational damage.

Howard Kerr, CEO at the BSI, commented: “It’s easy for business leaders to be kept awake at night by high-profile risks such as cyber-attacks, technology disruptions and IT outages, but they must not ignore the smaller, more frequent risks that steadily erode the bottom line. Organizations that don’t take all threats they face seriously, or otherwise develop plans to manage them, are exposing themselves to not only reputational loss, but also what can become quite severe financial costs. Achieving true organizational resilience means identifying not only the big risks, but also the under-rated issues that may just seem like ‘business as usual’ and can easily be missed.”

This disconnect can stem from a failure to understand the true costs of injuries, general acceptance of injury rates as a cost of business, an unfounded belief that there is a trade-off between profits and measures to keep the workplace safe, other priorities, and so on. While many executives give lip service to “safety pays” and the value of caring for their employees, they also feel the pressures to increase profits by cutting costs. Yet, safety and profitability can coexist.

Culture comes from the top down and management commitment is the key performance indicator. Executives may believe that the mantra “we want you to go home safe each day” reflects the company’s culture but it is often viewed skeptically as drivel by employees, who feel that production trumps safety. It takes a lot more than words to demonstrate a real commitment to safety.

Management commitment to safety includes financial investment, amount of time and team members involved, technologically advanced tools such as wearables, training hours, capital projects for high-risk issues and so on. Committed leaders are familiar with the major risks and risk mitigation efforts in their facilities.

Successful executives often require a report on every serious injury and review it with the leadership team. This sends the message to mid-management that safety is an integral part of operations. They also develop a set of leading indicators that encourage a continual focus on risk reduction.

The BCI report illustrates that the cost of injuries slowly erodes the bottom line, but falls under the radar. Workers’ Comp is just the tip of the iceberg when it comes to the cost of an injury. There are many indirect costs such as lost productivity, hiring and training replacement employees, higher overtime, incident investigation, repairing damaged equipment or property, lower morale, and implementation of corrective measures. There also can be legal and administrative expenses and higher Workers’ Comp premiums for at least three years.

The National Safety Council provides helpful information on the ROI of safety at an aggregate level. But employers can take a deep dive and analyze the costs associated with two or three injuries in their organization. It’s worth the effort to quantify all the related figures. The results not only paint a clear picture of the economic value of improving safety to top management, but also help employees understand the costs come out of profits and affects their wages, bonuses, and benefits.

Unless there is a catastrophic event, health and safety incidents do not have the immediate, malicious impact that an IT disruption or cyber-attack can create. But they are highly costly and disruptive and will slowly erode the bottom line. Failure to recognize that this is not “business as usual” will have serious consequences for the longevity and resiliency of the company.

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

Things you should know

Studies:

Do higher deductibles in group health plans increase injured workers’ propensity to file for workers’ compensation? – Workers Compensation Research Institute (WCRI)

Finding: Injured workers are more inclined to seek workers comp coverage to avoid out-of-pocket health expenses when “facing a substantial financial burden” of group health deductibles.

Workers’ Compensation and Prescription Drugs – NCCI

Finding: Prescription drug prices continue to increase, but there is lower utilization.

State Policies on Treatment Guidelines and Utilization Management: A National Inventory – WCRI

Finding: There are vast differences in states’ workers’ compensation treatment guidelines and how those guidelines are enforced.

California Workers’ Comp Prescription Drug Utilization and Payment Distributions, 2009-2018: Part 1 – California Workers’ Compensation Institute (CWCI)

Finding: NSAIDs overtake opioids as the top workers’ comp drug group; dermatologicals are most costly.

Characterization of occupational exposures to respirable silica and dust in demolition, crushing, and chipping activities

Finding: Certain job tasks may expose construction workers to silica dust at levels more than 10 times the permissible exposure limit set by OSHA.

Antineoplastic drug administration by pregnant and nonpregnant nurses: an exploration of the use of protective gloves and gowns

Finding: Nearly 40 percent of pregnant nurses don’t wear protective gowns when administering powerful cancer drugs, putting their own health and that of their unborn babies at risk.

Workplace bullying and workplace violence as risk factors for cardiovascular disease: a multi-cohort study

Finding: The effect of bullying and violence on the incidence of cardiovascular disease in the general population is comparable to other risk factors such as diabetes and alcohol drinking.

Compounded topical pain creams to treat localized chronic pain: a randomized controlled trial

Finding: Topical creams were not effective in reducing pain in a study of 399 pain patients at Walter Reed National Military Medical Center.

NIOSH updates Sound Level Meter app

NIOSH has released an updated version of its free Sound Level meter app, designed to measure noise exposure in the workplace. It is available from the Apple App Store.

NIOSH releases software tool for hazard recognition training in mines

This new training tool is a beta release developed by NIOSH’s Mining Program. It is a PC-based software application that allows both novice and experienced miners to test their examination skills in a simulated, interactive environment with more than 30 panoramic photos from a real surface limestone mine, or with uploaded images taken by smartphones or digital cameras in their own mine in any sector.

Download a beta version of the EXAMiner software.

American Society of Safety Professionals issues guidance on workplace violence

The document, “How to Develop and Implement an Active Shooter/Armed Assailant Plan,” contains recommendations from more than 30 safety experts on how businesses can better protect themselves ahead of such incidents. There is a related free video and infographic.

NSC publishes Managing Fatigue

Managing Fatigue, gives employers specific, actionable guidance on implementing an effective fatigue risk management system.

NSC releases The State of Safety

The State of Safety assesses states’ safety efforts by examining laws, policies and regulations around issues that lead to the most preventable deaths and injuries. In addition to receiving an overall grade, states earned grades in three different sections:

  • Road Safety
  • Workplace Safety
  • Home & Community Safety

NIOSH publishes new skin-hazard profiles for five chemicals

The new profiles are:

  • Atrazine
  • Catechol
  • Chlorinated camphere
  • Pentachlorophenol
  • Sodium fluoroacetate

State News

California

  • The Division of Workers’ Compensation has given medical providers who treat injured California workers free online access to the state’s drug formulary and treatment guidelines.

Michigan

  • The Workers’ Compensation Agency has published its Health Care Services Rules and Fee Schedule, which took effect on Jan. 8. It includes a new definition and rule language regarding telemedicine services. The health care services rules and fee schedule may be found here, on page 238. More information

North Carolina

  • Rules approved by the North Carolina Industrial Commission regarding workers’ comp settlement agreements, which were effective January 1, were published in the North Carolina Register on page 1583.

Pennsylvania

  • Some 15 insurance carriers, including Pennsylvania’s largest workers’ compensation writer, have now agreed to retroactively cut rates, part of a do-over requested after a data-reporting error led to higher premiums last year.

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

Legal Corner

ADA 
Court clarifies ADA website accessibility obligations

When the ADA was enacted, Congress did not anticipate the role of the Internet and focused on physical access barriers. Title III does not provide guidance for the Internet or web-based and mobile applications, but it does not limit coverage to brick-and mortar locations or exclude online locations. As a result, there have been a number of lawsuits and the decisions are split regarding whether Title III’s definition of “public accommodations” is limited to physical spaces.

For the first time, a U.S. Court of Appeals has ruled on this issue in Robles v. Domino’s Pizza. The Ninth Circuit held that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impedes access to the goods and services of its physical pizza franchises, which are places of public accommodation.

Critical to the decision was the nexus between Domino’s website and app and physical restaurants. While technically this ruling only applies to states covered by the Ninth Circuit, it reflects a nationwide trend and the DOJ’s position that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards, the Web Content Accessibility Guidelines (“WCAG”), developed by the World Wide Web Consortium.

Workers’ Compensation 
Timeliness of denial of benefits clarified – Florida

Florida statutes allow an employer to pay benefits to a worker while investigating his claim, for up to 120 days. An employer waives the right to deny compensability unless it can establish material facts that it could not have discovered through reasonable investigation within the 120-day period.

In Rente v. Orange County BOCC, the employer issued a notice of denial eight months after the injury. A judge allowed the denial, finding the injured worker had made misstatements to the spine surgeon about his prior symptoms and treatment to his low back, which was the proximate cause of delay in the employer’s decision to contest his claim. However, the 1st District Court of Appeals reversed and remanded, noting the judge needed to make a determination of when the employer had material facts regarding the issue of causation and compensability, which would trigger the employer’s 120-day period to commence an investigation and either accept or deny his claim.

Workers’ comp settlement does not bar recovery in tort suit – Illinois

In Armstead v. Nat’l Freight, Inc., a semi-truck driver for a Pennsylvania corporation sustained injuries in a vehicular accident with a National Freight truck in Grundy County. The Pennsylvania work comp settlement described his injury as a knee strain and noted its terms did not bar subsequent third-party action against various defendants for injuries he alleged he sustained to his back and shoulder.

He also sued National Freight and the driver, but they argued he could not present evidence of injuries other than to his knee, since the settlement said that it was his only injury. An appellate court reversed the circuit court’s grant of partial summary judgment and remanded for further proceeding, noting a statement could not be considered a judicial admission when it was made in the course of another proceeding and could not be used to bar his tort claim.

No extra benefits for worker who did not seek job rehab services – Illinois

In Euclid Beverage v. The Illinois Workers’ Compensation Commission et al., a long-term worker in the beverage distribution industry injured his back and was terminated because he could not be accommodated on light duty. He received temporary total disability, maintenance, and permanent partial disability benefits.

Shortly after his termination, he was offered a job that did not rely on physical ability, but he declined to interview. A few years later, the employer filed for review and the Circuit Court overturned the award for maintenance benefits, “finding that the record did not demonstrate that the claimant participated in a vocational rehabilitation program or (a) self-directed job search.” State law only mandates that an employer pay maintenance benefits if an injured worker was or is enrolled in a vocational rehabilitation program.

Worker must show disability made it impossible to secure work – New York

In Matter of Figueroa v Consolidated Edison Co. of N.Y., Inc, an office assistant who worked for approximately 41 years began to experience pain in her hands and wrists and filed a claim for workers’ compensation benefits. Shortly thereafter, she retired from her position at the age of 59.

Three years later she began efforts to reenter the job market, attending an orientation session, taking classes on preparing a résumé and cover letter to assist her in finding a job and subsequently submitting job applications to various retail companies. The employer challenged the Board’s award of benefits during the time period she had reattached to the labor market. The court agreed that she had to demonstrate her inability to obtain work was due to her causally-related disability, as opposed to her age, economic conditions or other factors. It found the Board’s decision to award claimant wage replacement benefits during the period of her labor market reattachment was not supported by substantial evidence.

Worker’s estate entitled only to portion of posthumous schedule loss of use award – New York

In Matter of Estate of Youngjohn v Berry Plastics Corp., an appellate court noted that when an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee’s schedule loss of use (“SLU”) award that had accrued at the time of the death is payable to the estate. That rule applies even when the SLU award is posthumous.

Temporary worker cannot maintain tort suit against borrowing employer – New York

In Ferguson v. National Gypsum, a temporary worker was injured while working for National Gypsum and filed suit seeking damages. The Appellate Division’s 4th Department found the claim was barred by the exclusive remedy provision of the Workers’ Compensation Law based on the special employer concept. Since National had complete and exclusive control over the manner, details and results of the injured worker’s work, the court said the company was his special employer and enjoyed immunity from civil liability.

Family of worker killed cannot sue in civil court – North Carolina

An appeals court ruled that workers’ comp is the only recourse for a family of a mechanic crushed to death while repairing a machine at a plywood manufacturing plant. The deceased was hired by a staffing agency, but the manufacturer controlled the worker’s day-to-day work activities, controlled the work the worker performed and paid him an hourly wage. Therefore, the plywood manufacturer was the worker’s special employer and it could not be liable in a wrongful death action. – Estate of Belk v. Boise Cascade Wood Prods., L.L.C.

Superior court judges have broad discretion in review of attorney fees – North Carolina

Overturning a decision by the Court of Appeals, the Supreme Court noted that superior court judges have broad discretion to review the reasonableness of an attorney fee award provided by the state Industrial Commission. In Saunders v. ADP Totalsource Fi Xi, the court noted that under state law, the commission must approve a fee for an attorney in a workers’ compensation case. However, if the attorney disagrees with the commission’s decision, he/she can seek a review by a superior court judge.

Parent company not liable for death of subsidiary’s employee – Pennsylvania

In Grimsley v. Manitowoc Co. Inc., a worker was killed when he was pinned between two cranes. The employer, Grove U.S., LLC, was fined by OSHA and the widow received workers’ comp benefits. Later, she filed a wrongful death and survival action asserting negligence and strict liability against the parent company, Manitowoc Co., arguing the crane was owned by Manitowoc and branded with its logo.

The U.S. District Court granted summary judgment to the employer, parent company, and several other subsidiaries finding Grove was entitled to the exclusive remedy provision under the Workers’ Compensation Act and Manitowoc did not exercise significant control over Grove to establish liability.

Benefits continue for worker released to full duty – Pennsylvania

In an unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner), a worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy and had spinal fusion surgery. The medical treatment was successful, and the injured worker was released back to work, without restriction.

The employer argued that an ability to work without restrictions mandates a finding of full recovery and termination of benefits. However, the court noted, “Employer appears to conflate the diagnosis of full recovery from a work injury with a physician’s release to return to work without restrictions. While Claimant was capable of returning to work, the WCJ found she had not recovered from the effects of her work injury.” As such, the WCJ did not err in granting benefits for medical expenses with wage loss benefits suspended upon Claimant’s return to work.

No comp benefits despite failure to use on-site defibrillator – Tennessee

In Chaney v. Team Techs, the Supreme Court, reversing a decision of a state trial court, found an employer isn’t liable for workers’ compensation benefits because they failed to use an automated external defibrillator (AED) that was available to help an employee who was suffering from a non-employment related medical emergency. Although the court noted that under the state’s emergency doctrine, an employer can be liable for benefits if it failed to render reasonable medical aid to an employee who had become helpless at work, the employer had called emergency responders and the doctrine could not be extended to require an employer to utilize an AED.

The first responders were able to revive the worker who collapsed because of a heart condition, but she suffered a permanent brain injury because of a lack of oxygen to her brain and sought workers’ comp benefits. While the employee’s injury had occurred in the course of the employment injury, it did not arise out of the employment.

Subrogation lien cannot include nurse case management expenses – Tennessee

In Memphis Light, Gas and Water Division v. Watson, a case of first impression, the Court of Appeals ruled that nurse case management fees are not recoverable as part of an employer’s workers’ compensation subrogation lien. A meter reader suffered injuries when she was attacked by a dog and received workers’ compensation benefits. She also settled a tort claim for $80,000.

Since the court had never decided whether an employer’s statutory subrogation lien extends to nurse case management fees, it considered an Illinois decision in which the cost of services for a “medical rehabilitation coordinator” had been excluded from the subrogation amount.

The court concluded that such fees are not included in a lien, since the provision of case management services is not mandatory and is for the benefit of an employer, not the worker.

Requirements for workers to receive additional PPD benefits clarified by Supreme Court – Tennessee

In Batey v. Deliver This Inc., a delivery driver injured his back and underwent surgery. Under Tennessee law, when a worker reaches maximum medical improvement for a compensable injury and receives a permanent medical impairment rating, they receive an “original award” of permanent disability benefits. There are various provisions for increasing this amount if the worker does not return to work when the award ends.

A trial court determined that he was entitled to 275 more weeks of permanent partial disability benefits. Although the WCAB found errors in “defining an employee’s burden of proof” and in defining the phrase “employee’s pre-injury occupation,” it noted the errors were harmless and the Supreme Court agreed. Both the appeals court and the state Supreme Court, however, denied a motion for prejudgment interest on his claim, citing the exclusive remedy provision in the comp law.

Violation of safety rule nixes benefits – Virginia

In Jones v. Crothall Laundry, a team leader at a commercial laundry entered a fenced area through an unapproved opening, instead of through the approved interlock gate that would have deactivated machinery inside the fence. An appellate court affirmed a finding by the state’s Workers’ Compensation Commission that the employee’s action constituted a violation of a known safety rule, that the violation was the proximate cause of his serious injury to a leg, and that the worker, therefore, could not recover workers’ compensation benefits. The employer had proved the rule was reasonable, for the benefit of the employee, that it was known, the employee intentionally breached the rule, and the breach was the cause of his injury.

Injured worker who was left quadriplegic ineligible for benefits – Virginia

The Supreme Court affirmed an earlier ruling that denied workers’ compensation benefits to a worker injured while rehabbing a historic school building, finding the man was hired by an unlicensed contractor and was not an employee of the church and historical society that were restoring the building.

The court noted that the statute holds a party liable for the payment of workers’ compensation benefits if it has hired another to perform work that is “a part of his trade, business or occupation.” While the historical society was formed to restore the school, the court reasoned that “its trade, business or occupation did not include the complete reconstruction of the building.”

Court reverses denial of benefits to employee assaulted by coworker – Virginia

In King v. DTH Contract Services Inc., the Workers Compensation Commission denied an employee’s workers’ compensation claims for injuries he sustained when he was stabbed at work by a former co-worker, finding that the motive of the attack was relevant in determining if the injury arose out of employment. The employee worked as an overnight rest area attendant and a former employee stabbed him in the eyes with a screwdriver when he was on his way back to the office after a safety check. The assailant committed suicide and the motive was never determined.

Upon appeal, the worker argued his employment placed him at a greater risk of assault than the risk faced by the general public. The court remanded the case back to the Commission, noting other cases in the state have found that when an assailant’s motive is unknown, an injured worker does not have to affirmatively establish that the assailant’s motive was not personal. Further, it was an error to treat the motive as the only relevant issue.

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

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.

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

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.

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