12-5-2016; Our Spin on OSHA Post-Accident Drug Testing; IL Rep Jim Durkin Fighting for IL WC Reform Against Odds; IL Employers Can't Ask To Be 'Liked' and Two-Stone Premises Liability Ruling and More

Synopsis: U.S. Employers and WC Managers Should Carefully Continue Blanket Post-Accident Drug Tests Under OSHA’s “Reasonable Reporting Procedure” rule—The Times They Are A-Changing.

Editor’s comment: In our respectful view, all of the aggressive and business-unfriendly stuff under the current OSHA administration may be “Trump-ed.” The Wall Street Journal reported we may see a Reagan-esque effort to use a regulatory “SWAT” team to block the Obama-led proliferation of regulations and get rid of the current “lame-duck” group of administrators. Take a look at http://www.wsj.com/articles/a-trump-swat-team-for-regulation-1480888354

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Under the Obama-ites, starting last week on December 1, 2016, what I feel is the outbound Occupational Safety and Health Administration started enforcing another new regulation requiring employers

(1)  To have a “reasonable procedure” for employees to report work-related injuries and illnesses, and

(2)  Not to magically “discriminate” or retaliate against employees who report such injuries or illnesses.

In our view, their main issue is “blanket” post-accident drug testing isn’t somehow “fair” and they want someone at your company to make a magical and almost impossible call/decision on whether post-accident drug-testing is somehow fair. The problem with someone making a continuing call on whether a test is “fair” is you are almost certainly going to eventually get sued or an EEOC charge when your team rapidly decides on ever-changing evidence what might be arguably fair, as the facts roll in. There is a misperception you and all U.S. risk managers are told the whole truth and nothing but the truth when an accident happens. Anyone who has been in the business for a week or three knows all sorts of conflicting and contradictory stories come in from your work sites and making a call on whether you can safely drug test is always a challenge. In my view, the Feds in this administration could care less.

For an example, assume one of your workers claims to be stung by a wasp at work. An anonymous source is telling your managers the “sting” was actually use of a needle for prohibited drugs. Regardless of the controversy, you tell the worker they have to be drug-tested because the event is potentially a work accident. You confirm if they won’t agree to drug testing, they are going to be sanctioned or terminated consistent with your company policy. Faced with such facts, the outbound OSHA folks may side with your worker’s claim of insect sting and feel requiring post-accident drug testing in that setting will stymie or block folks from reporting accidents/exposure at work.

The thinking underlying these requirements is employees should not be somehow discouraged or punished in any way for ever exercising their right/duty under the Occupational Safety and Health Act to report a work-related injury or illness. Any adverse action taken because an employee exercises this “right to report” is viewed by the current troops at OSHA as a violation of §11(c) of the OSH Act, and as of August 10, of §1904.35(b)(1)(iv) as well. Please note the OSHA director behind this rule is leaving shortly and with him may go such views.

Although complaints brought under §11(c) of the Act must be raised by the aggrieved employee within 30 days of the adverse action, under §1904.35(b)(1)(iv), OSHA could issue citations within six months of the adverse action, and the employer would not only be issued a citation with proposed penalties, but also could be ordered to make the employee “whole,” including reinstatement with full back pay for an employee terminated as a result of a positive drug test.

Under the new regulation, a drug-testing procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” A reporting procedure is likely to be determined by the outbound OSHA administration to be unreasonable if an injured or ill employee were required to report the injury or condition within only an hour of its occurrence or were required to report the injury or condition to so many different managers or others it would be a deterrent to reporting.

Another section separately provides an employer may not discriminate against an employee who reports an injury or illness. Although the Section cited does not expressly mention post-accident drug testing, the outbound OSHA leadership made clear in the Preamble to the new rule it believes “blanket post-injury drug testing policies deter proper reporting” and would thus be subject to OSHA citation with proposed penalties. In announcing this interpretation of the new regulation, OSHA explained they were not attempting to ban all post-accident drug testing, but would instead allow such testing if an employer conducts the testing to comply with the requirements of a state or federal law or regulation. The departing administration also stated post-accident drug testing would be permitted if there was a “reasonable possibility” drug use was a “contributing factor” in the work injury or exposure.

OSHA’s interpretation of its new reporting regulation caused widespread confusion among employers concerned they will be prohibited from conducting any post-accident drug tests or face citations and penalties. OSHA’s brain trust has not yet provided any useful formal guidance on how it will evaluate employers’ post-accident drug testing policies.

Again, Looking at the Outbound OSHA Leaders—They Hate "Blanket" Post-accident Drug Testing and Are Not Concerned If You Get Sued

The starting point in addressing the “no discrimination or retaliation” provision is OSHA focusing on a U.S. employer’s supposed motivation in implementing its post-accident drug testing policy. The new regulation has no effect on truly random drug testing. But if OSHA determined the intent of an employer’s post-accident policy was to deter or discourage the reporting of work-related injuries or illnesses, then OSHA was likely to issue a citation seeking to eliminate an employer’s continued use of such a policy. As OSHA leadership explained, a “blanket” or “automatic” post-accident or post-injury drug testing policy will, in effect, be presumed to be retaliatory and intended to deter or discourage reporting. OSHA would view as somehow questionable the required post-accident drug testing of an employee who is reporting a repetitive motion or cumulative trauma musculoskeletal condition, such as an arm or back strain, or, as we outline above the report of being randomly stung by an insect at work. Or, equally suspect in OSHA’s view would be the drug testing of an employee who is injured through no fault of his own when he is struck by another employee operating a forklift. In these types of cases, absent unusual circumstances, there is no “reasonable possibility” to believe the employee’s injury or condition arose because the employee was in any way drug-impaired.

Although “reasonable possibility” would seem to be so vague a term its meaning would be whatever OSHA interprets it to be in a given event, the outbound OSHA leaders established some parameters by reference in the Preamble discussions to insect stings and musculoskeletal disorders. In OSHA’s view, when an insect randomly stings an employee or an employee develops a musculoskeletal disorder, the employee is in no way contributing to the injury or condition. If an employee has not contributed in any way to an injury or illness, then there can be no “reasonable possibility” drugs were involved in the occurrence. In the absence of such a “reasonable possibility” of drug-related impairment or of a causal link between the employee’s action and the resulting injury or exposure, OSHA would view the required testing as primarily intended to discourage the reporting of the injury or condition or as a form of deleterious job action for being involved in the “blameless” accident or in developing a medical condition with no fault of the worker.

Please remember this means someone at your workplace in risk/safety or other management has to make the call there is something wrong or the worker is at fault—in my view, this means you are going to face lawsuits over the decision-making process.

If an employer’s motivation for having a rule requiring post-accident drug testing was for some valid reason other than discouraging employees from reporting injuries and illnesses, I believe the policy would not run afoul of the new Section. There are generally three categories that constitute valid reasons for post-accident or -injury drug testing: 

(1)  Drug-Free workplace policies;

(2)  State workers’ compensation laws

(3)  Reasonable suspicion of drug impairment.

Drug-Free Workplace Policies and State Workers’ Comp Laws/Rules Are Designed to Discourage Illicit Drug Use At Work—The Old OSHA Folks Were Okay With It

Many states have Drug-Free Workplace statutes offering employers a reduction in their insurance premiums if they adopt such testing policies. Please note the State statutes run directly afoul of the outbound OSHA administrations goals in enforcing the new Section. Although U.S. employers are not required to implement such policies, if they choose to do so to reduce their insurance premiums, they must comply with the regulations of the state statutes. Not every state’s DFWP statute has identical provisions. However, under the terms of a typical DFWP statute, to establish a legal presumption of causation by alcohol or drugs, an employee must be drug tested within hours of the event if the employee has “caused or contributed to an on-the-job injury which resulted in loss of work time.” Loss of work time is typically defined differently under a DFWP statute than under OSHA recordkeeping regulations.

In the DFWP context, an employee incurs a “loss of work time” when, as a result of the injury, an employee’s normal work is interrupted, as opposed to under OSHA recordkeeping regulations where an employee must miss an entire day from work on any day after the injury. Thus, in states with such DFWP statutory language, most work-related injuries will result in the requirement of a post-accident drug test.

If a U.S. employer conducts “blanket” post-accident drug tests consistent with the requirements of their state’s DFWP statute, the departing OSHA administration would not find a violation of the new SectionIt would be more challenging to guess what happens if an employer decides to go beyond what is required by the express language of a state DFWP statute. Although OSHA might approach these situations on a case-by-case basis, employers would seem to have a good defense because typically workers’ compensation benefits can be denied or are presumed not to be due if an employee tests positive for drugs. Thus, an employer’s motivation in requiring drug testing beyond what is literally required by the state DFWP statute could legitimately be to avoid having to pay workers’ compensation benefits as a result of positive drug test results, not to retaliate against the employee for reporting the injury.

In sum, adopting a DFWP policy in order to reduce insurance premiums is arguably not retaliatory and therefore seems permissible under the new federal Section even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces. As the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or workers’ compensation losses, such policies were likely to be viewed by the old OSHA administration as compliant.

In those states that do not have a DFWP statute, I believe an employer may still be free to adopt blanket post-accident drug testing if your insurance carrier or state law offers a premium reduction or other benefit for implementing the policy. Again, even though not required by state or federal statute or regulation, your motivation for adopting such a policy is to reduce insurance premiums or workers’ compensation claims, neither of which is premised on an unlawful motivation. For those employers who are simply accepting an insurance carrier’s offer in the absence of a state DFWP statute, I recommend the arrangement be in writing.

Post-accident or Injury “Reasonable Suspicion” Drug Testing

First remember “reasonable suspicion” drug testing opens your company and you to lawsuits about your decision. The prior OSHA administration could care less about you getting sued.

Even in the absence of a Drug Free Workplace post-accident or -injury policy or workers’ compensation benefit for the employer, I believe it would still be permissible to conduct “blanket” post-accident drug testing if, as OSHA states, employee drug use is “likely to have contributed to the incident.” This is an acknowledgment by OSHA that even if post-accident or -injury drug testing could conceptually have some effect on an employee’s reporting of an injury, it will be permitted under the new Section if you have a reasonable suspicion drug use contributed to the incident. The former OSHA group does not have expertise in making reasonable suspicion determinations, or more accurately, second-guessing reasonable suspicion determinations. In typical prior OSHA inspections, your compliance with OSHA requirements was based on whether your equipment or practices were compliant with OSHA Standards, and employee impairment was not typically at issue. As a consequence, absent any significant institutional knowledge or expertise on the issue, OSHA was likely to defer to the longstanding criteria and procedures developed over the years under other statutes as interpreted and enforced by other agencies, such as the Department of Transportation or the Federal Railway Administration.

“Reasonable possibility” Drug Testing

Apart from testing under a state Drug-Free Workplace statute or arrangement with an insurance carrier to implement a Drug-Free Workplace policy, or when there was reasonable suspicion to believe the reporting employee was under the influence of drugs, there are other situations in which OSHA would allow post-accident drug testing. As outlined above, when an employee was simply stung by an insect through no fault of their own or developed tendinitis/carpal tunnel performing repetitive work tasks, OSHA’s position was post-accident drug testing would probably violate the new Section. But OSHA offered a few examples in which OSHA claimed post-accident drug testing would be allowed even in the absence of reasonable suspicion.

For example, if an employee was injured as a result of failing to lock out equipment that was being serviced or an employee drove a forklift into a wall, post-accident drug testing for such cases might be allowed.  Unlike an insect sting or cumulative trauma disorder where there is seemingly no connection between the injury or illness and drug impairment, impairment could be a reason the employee failed to lock out or drove the forklift into the wall. In the absence of any bright line test, it appears any employee action that leads or contributes to an injury – such as tripping and falling, hitting your thumb with a hammer– would all be considered as having a “reasonable possibility” of occurring as a result of drug impairment and thus blanket drug testing would be OSHA-approved. Again, OSHA’s focus was on prohibiting post-accident drug tests only when, like the insect sting, there was no possibility, an employee’s actions led or contributed to the resulting injury/exposure. Similarly, if an employer conducts drug tests after all failures to lock out or all forklift collisions, regardless of whether an injury results, then the employer was not retaliating against the employee for reporting an injury.

Will All of This Anti-Business Action be “Trumped?”

In my view, yes. The message from our new leader and his team is to stop regulating or “over-regulating” U.S. businesses in this fashion. We can only hope that happens but we have to take a wait and see approach. For now and the next couple of months, we are going to have to deal with the new standard that starts on December 1, 2017.

The defense team at KCB&A can assist you with a strong drug-testing policy and we defend OSHA beefs regularly at hourly rates lower than our competition.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: IL WC Reform Legislation Being Pushed to Slash Another 30% from IL WC Medical Costs and Create a “Major Contributing Cause” Standard Got a Committee “Hearing” on Its Way To Nowhere Last Monday.

IL State Rep. Jim Durkin

Editor’s Comment: The sponsor of House Bill 4248, Republican Rep. Jim Durkin, wasn’t even formally notified and could not attend the General Assembly’s legislative committee hearing due to meetings about the State budget battle. It appears clear IL House Speaker Michael Madigan was not interested in any compromises or reform for our clunky workers’ compensation system. The battle over WC reforms will continue while all sides of our General Assembly and the Governor continue brinkmanship on not having an IL State Budget.

Illinois has not had a balanced state budget in 15 years, even though there is a constitutional requirement. State government is struggling with a “stopgap” budget that expires in about three weeks Dec. 31. The State of Illinois has not had an annual spending plan since July 1, 2015.

“It was a highly unusual practice for Madigan to send the bill to committee without notifying its sponsor and was taken as a sign of bad faith by those involved,” said Michael Lucci, vice president of policy for the Illinois Policy Institute, a pro-business nonprofit. “Workers’ comp reform is still on the horizon. I would expect there might be movement and pressure out of the state Senate, where there’s more appetite for making a deal than there is in the House.”

Legislative leaders feel our WC system in Illinois needs to join the 30 other states with Medicare-based WC medical fee schedules that would pay WC hospitals and caregivers at a rate of 175% to 180% of Medicare.

A Medicare-based fee schedule appears essential to contain Illinois’ high work comp medical costs. Such a schedule may lead to more stability and predictability for actuaries, and allow WC insurers to more accurately price their WC insurance premiums.

Illinois’ WC medical costs are the highest in the region. Medical payments per 2012 claim, evaluated as of 2015, were 18% higher than the median for 18 study states, which included California, Texas, parts of the Midwest and the Southeast, the Workers Compensation Research Institute concluded in an October report.

The 2016 Oregon Workers’ Compensation Premium Rate Ranking Summary has Illinois tied for seventh with Oklahoma for the highest rates, at $2.23 per $100 of payroll.

HB 4248 also calls for the creation of a Workers’ Compensation Edit, Alignment and Reform Commission to recommend system reforms by July 1, 2017. Under Durkin’s bill, the commission would include four legislators, four claimants’ attorneys and four defense attorneys. As we have said repeatedly, this is feel-good legislation because our IWCC already has blue-ribbon panels galore that can and should be doing what this newly proposed commission might do.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Be Forewarned--Illinois Employers May Soon Be Fined for Asking Employee to “Like” or “Retweet” Employer on Facebook or other Social Media Posts. Analysis by Tracy Swenson, J.D.

Editor’s comment: According to the newly amended IL Right to Privacy in the Workplace Act, asking an employee to “like” an employer’s Facebook page or retweet company posts on Twitter is illegal. After the first of the coming year Illinois employers could be find and be found guilty of a petty offense for asking, requiring or coercing employees to use their personal online account to join their employer’s online groups. Editor’s note: Was this truly an issue for our legislative leaders in Springfield? Were they literally hundreds of folks complaining of this practice?

The IL Right to Privacy in the Workplace Act was amended in an attempt to better protect employees’ privacy. This includes preventing employers from requesting information form workers about their employees’ previously filed claims for Workers’ Compensation Act or Workers’ Occupational Diseases Act claims.

In 2013, the Right to Privacy in the Workplace Act was amended to prevent employers from requiring employees or applicants to provide social media or networking passwords and other information. As of this past summer Illinois Gov. Bruce Rauner agreed on an amendment to the Act to not only include passwords on networking sites but also usernames and personal online accounts and bars retaliation against employees by employers.

It is noted that about 20 states have enacted such laws that limit employer’s access to employees’ personal online accounts and most of these laws have been added in the last two years.

The National Labor Relations Board has had recent decisions which focus on employer’s social media policies and not that these polices should not be so sweeping they prohibit the kinds of activity protected by federal labor laws such as the discussion of wages or working conditions among employees.

Employers cannot restrain the type of information an employee can post in their own personal online accounts according to the National Labor Relations Board and now as of January 1, 2017, employers cannot request access to an employee’s personal online account or require an employee to authenticate their personal online account pursuant to the Act.

For more information or counseling on what you can and cannot do in this setting, please contact Tracy at tswenson@keefe-law.com.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Premises Liability For “Two Stone” Fall Down Claim. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In Piotrowski v. Menard, Inc. (decided November 29, 2016), Claimant Piotrowski sustained injuries when she tripped and fell on two stones in Menard’s store parking lot. Piotrowski’s husband brought his own claim including loss of consortium. Plaintiffs filed suit in the Circuit Court of Cook County alleging loss of consortium and negligence. Defendant removed the case to federal court based on diversity jurisdiction. Subsequently, the District Court granted Defendant’s motion for summary judgment. This ended the case at the trial court level and Plaintiffs appealed. On appeal, the Seventh Circuit affirmed the District Court’s entry of summary judgment for Defendant.

In arguing for a reversal of summary judgment entered in favor of Defendant, Plaintiffs argued they had demonstrated genuine issues of material facts they asserted required the claim to proceed to a trial. However, the Seventh Circuit disagreed with Plaintiffs.

Under Illinois law, a Plaintiff alleging negligence must show a duty owed by defendant, a breach of that duty, and that the injury was the proximate cause of the breach.

A business can be liable for the injuries of an invitee who slips/trips on a substance on its premises if the invitee shows:

1)    The substance was placed there by the negligence of the business;

2)    The business had actual notice of the substance; or

3)    The business had constructive notice of the substance.

It appears no one knew where the two stones being complained about came from. The parties agreed Defendant owed a duty to Plaintiff, but argued whether Defendant breached its duty by allowing the two stones to remain on its premises and whether the breach was the proximate cause of Plaintiff’s injuries.

The Seventh Court found there was no direct or circumstantial evidence to show the two stones were more likely placed by an employee of Defendant rather than a third party or force of nature. The Court indicated mere speculation an employee of Defendant Menards could have placed the stones where Plaintiff fell was not enough to survive summary judgment.

Plaintiffs also asserted Defendant was liable for Piotrowski’s injuries because it was aware of the allegedly dangerous conditions that caused her fall by refilling the area with additional stones. The Seventh Circuit found no pattern of recurring dangerous conditions reasoning Defendant’s supervisor and other employees monitored the area regularly. Therefore, no evidence was presented by Plaintiff to show the area where she fell was not attended to within a reasonable period of time.

The Court also indicated there was no evidence Plaintiff was distracted when she fell or evidence Defendant was aware of the two stones in the parking lot.

The Seventh Circuit concluded Plaintiff’s trip and fall was not enough to support in inference of negligence. In other words, Plaintiff did not support her case with enough evidence (outside of pure speculation) to get the case to a jury. Had she done so, then a trial deciding the issues would have been appropriate. However, since there was no genuine issue of material fact, the Seventh Circuit concluded the District Court did not err in granting Defendant’s motion for summary judgment.

Generally, a savvy Plaintiff will demonstrate a theory and support it factually during the discovery phase of the case to get through the potential summary judgment and to a trial. Whether it be by indicating the condition on the premises was so blatantly obvious the store/property owner cannot claim ignorance, or by adequately obtaining the necessary information to prove the property owner placed the defect or caused it to be placed there, a Plaintiff may overcome a motion for summary judgment. However, sometimes if the evidence is not there or a Plaintiff simply fails to bring forth enough evidence these types of excellent and pro-business results can occur.

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia at any time for questions about commercial general liability and workers’ compensation at lpicazo@keefe-law.com.

11-28-16; Hold Your Payroll by Brad Smith; Kooky New OSHA Fall-Protection Rule Coming at You if Not "Trumped"; Lily Picazo on Impairment Rating Ruling and more

Synopsis: Hold Your Payroll for December 1st! Eastern District of Texas Federal Court Issues Nationwide Injunction Against U.S. DOL Increases For “White Collar” Salary Exemptions, Analysis by Bradley J. Smith, J.D.

Editor's Comment: Late this week, United States District Judge Amos L. Mazzant (an Obama appointment) thwarted Obama’s Department of Labor’s Final Rule described at 81 Fed. Reg. 32,391 by enjoining it from taking effect on December 1, 2016. The injunction was a blow to the law that was already causing U.S. employer’s headaches about how to afford and implement the salary changes to stay in line with the law, which requires lots more overtime pay than in the past. Specifically, Judge Mazzant enjoined the DOL from implementing and enforcing the following regulations as amended by 81 Fed. Reg. 32,391: 29 C.F.R. §§ 541.100; 541.200; 541.204; 541.300; 541.400; 541.600; 541.602; 541.604; 541.605; and 541.607. If you are an employer in the USA, then his ruling likely affects you!

The ruling affects the “white collar” exemption. You may be asking yourselves, what happened and how did we get here? President Obama wanted to give the “middle class” a raise. On March 23, 2014, President Obama told the Secretary of Labor to increase the existing “white collar” exemptions in FLSA. The DOL did so. Next week, December 1, 2016, the DOL’s Final Rule would have increased the minimum salary level to entitle “white collar” employees to overtime from $455 per week ($23,660 annually) to $921 per week ($47,892 annually).

The rule would require U.S. employers to

§  Pay these newly eligible managers time and a half for overtime;

§  Raise their salaries to render them ineligible for OT;

§  Lock in the manager’s hours at 40 hours a week;

§  Some combination of the above.

The DOL’s Final rule also allows for automatic increases in those levels every three years, starting on January 1, 2020. Fortunately, for U.S. employers wondering where the additional money (or necessity of monitoring hourly employees' overtime work) would come from, this ruling puts the DOL Final Rule on hold. This will save employers a ton of additional money and resources! We have heard from multiple emloyers struggling with how they were going to comply with the new rule. Well, for now, you don’t have to. And there is the possibility this is all going to end.

In short, the new overtime rule is most likely dead after Judge Mazzant issued a preliminary injunction Tuesday delaying its implementation during pending litigation, which was to start Dec. 1. Judge Mazzant of the Eastern District of Texas hinted strongly in his decision the delay is a prelude to striking down the rule. “The State Plaintiffs have shown a likelihood of success on the merits,” he wrote, “because the Final Rule exceeds the Department’s authority.” In issuing the rule, he wrote, the Labor Department "ignores Congress’s intent by raising the minimum salary threshold such that it supplants the duties test … if Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

For the time being, you should know that the overtime rule will not take effect on December 1, 2016. Although the DOL has legal options, they will likely take some time. And there will almost certainly be new administrators from the incoming administration at the U.S. DOL.

The options are likely as follows;

·         The DOL appeals the injunction to the Fifth Circuit, which probably would not issue an opinion until 2017.        

·         A lame-duck Congress quickly compromises with a bill for President Obama’s signature.

·         The DOL does nothing and awaits Judge Mazzant likely implementing the injunction permanently after a trial on the merits.

·         President-Elect Trump addresses it after being sworn in on January 20.

While the DOL is likely to appeal to the Fifth Circuit Federal Appellate Court, the timing of this decision leaves the fate of this rule in the hands of the 115th Congress and the Trump Administration. However, there is always a chance that this injunction could be flipped on appeal, so this is something we will be monitoring in the coming weeks. 

What do U.S. employers do now? How will you balance the cost savings of a “do-over” for the employees whose salaries you raised against the morale hit lowering their salaries—especially at this time of the year—will cause? Do you reconvert the employees? Will you re-hire some of the folks you laid off when anticipating the increased costs? These are difficult questions; however, if your business costs were going to increase to a level that was unmanageable due to the increase in EAP salary, then you probably have an obvious answer to your questions. For everyone else, individual assessments will likely be required.

The research and writing of this article was performed by Bradley J. Smith, J.D. with the help of the Editor-in-Chief, Eugene F. Keefe, J.D. Bradley or Gene can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com or ekeefe@keefe-law.com.

Synopsis: Outbound OSHA Administration Issues Massive New Fall Protection Rule—Can It Withstand Legal Challenges and the New Trump Administration?

Editor’s comment: Despite a Congressional “request” federal agencies like OSHA not promulgate new regulations during the transition to the Trump administration, the zealots at the Occupational Safety and Health Administration recently issued a gigantic 513 page final rule effectively re-writing its general industry standards on walking-working surfaces, including ramps, ladders, gangways, roofs, and other surfaces. While this rulemaking has been in the works for about three decades, the original 293 page proposed rule was published at 75 Fed. Reg. 28861 on May 24, 2010. About six years later, without any advance warning, OSHA promulgated the final rule and provided only sixty days for your compliance.

For a variety of reasons, this rule may be subject to the same legal attack as the FLSA mess reported by Brad Smith in the article above. It may also be “Trumped” or blocked by the inbound administration—they assert they don’t want more government regulation and here is one such complex morass of new rules for U.S. business to deal with.

The final rule includes new and unprecedented provisions addressing fixed ladders, rope descent systems, fall protection systems and criteria, and training. Further, their final rule adds requirements on the design, performance, and use of personal fall protection systems. Please note some of these rules were already in place for the construction industry—the new fall protection rule expands the scope to general industry.

Outbound OSHA Administrator Dr. David Michaels said the “rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries.” “OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” Dr. Michaels claims the rule should also increase the “consistency between general and construction industries, which will help employers and workers that work in both industries.”

According to OSHA, the “rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in the construction industry since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level, prohibiting the use of body belts as part of a personal fall arrest system, and requiring worker training on personal fall protection systems and fall equipment.”

The new standard should affect 6.9 million establishments employing a whopping 112 million employees. OSHA also found the ladder training rules will apply to 5.2 million employees engaged in the construction, installation, maintenance, repair, and moving operations in general industry. For almost all our readers who are U.S. risk and safety managers, if this new rule isn’t blocked by legal action or the new administration, you will need to obtain and set fall protection training at your facilities asap.

Excluded from the new rules are employees outside of OSHA’s jurisdiction due to location or operational status, such as Department of Transportation (railroad and trucking) responsibilities, or those subject to industry-specific fall protection standards, such as telecommunication and electric power generation, transmission, and distribution.

OSHA estimates full compliance with this rule would prevent over 5,800 injuries and 29 fatalities per year. In my view, that is based on hopes and prayers.

Timeline—You May Not Be Surprised to See it Starting Three Days Prior to the Trump Inauguration!

The rule will be effective beginning Tuesday, January 17, 2017; Trump is inaugurated that Friday, January 20, 2017.

Some provisions have delayed effective dates, including:

ü  May 17, 2017 – Train employees on fall and equipment hazards;

ü  July 17, 2017 – Insure exposed workers are trained on fall hazards;

ü  July 17, 2017 – Insure workers who use equipment covered by the final rule are trained;

ü  November 20, 2017 – Inspect and certify permanent anchorages for rope descent systems;

ü  November 19, 2018 – Install personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising;

ü  November 19, 2018 – Insure existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system;

ü  November 18, 2036 (yes, twenty years from now) – Replace cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet.

We caution compliance with this giant new rule will represent a major challenge for U.S. employers, due to the effective date of the regulations. It will require all U.S. employers to meet these same rules and requirements for your outside contractors, temporary and staffing/leased employees who may be at the worksite under OSHA’s “multi-employer” worksite doctrine.

Will It Last?

This new OSHA Rule will come under review by the Trump administration or be subject to the Congressional Review Act where lawmakers have 60 legislative days to overturn a regulation from the current or, in this case, previous administration. If lawmakers are not in session for a full 60 days after enactment of the new rule before adjourning their final session, the clock resets, and the new Congress is given another 60 days to act on the new rule.

Does KCB&A Do OSHA Defense?

Yes, we most certainly do and at hourly rates half of some competitors. You don’t need to spend $500, 600 or more per hour to resolve OSHA disputes and pay your defense lawyer so much to defend you that you have to be in a lose-lose situation. If you have an issue with OSHA or need advice at any future time, please call or email and we can help.

The research and writing of this article was performed by Bradley J. Smith, J.D. with the help of Editor-in-Chief, Eugene F. Keefe, J.D. Bradley or Gene can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com or ekeefe@keefe-law.com.

Synopsis: IL WC Impairment Rating Ignored… Again. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In 2011, impairment ratings were brought to the IL WC matrix to try to bring the value of permanency or what can now be called ‘impairment’ down to make it more palatable for IL employers. The goal of the reforms was to bring IL WC awards more in line with our sister states. There has been substantial push-back on this concept by our hearing officers, all of who report directly to the Governor. We will see when and if the secret-powers-that-be who run IL WC might encourage them to drop PPD awards consistent with impairment ratings—for now, the jury remains out on lower PPD values based on impairment ratings in claims like this. In our view as defense lawyers, there is still value in getting a rating.

In Flexible Staffing Services v. Illinois Workers' Compensation Comm’n, the Illinois Appellate Court, WC Division ruled the IWCC properly applied Section 8.1b of the IL WC Act when it awarded PPD benefits at a more traditional and high level to Petitioner. Basically, the impairment rating was wholly ignored to the chagrin of employers, claims handlers, risk managers and insurance carriers across our state.

Petitioner, a welder-fabricator, was welding a 400-lb. section of a rail when he sustained a right distal biceps tendon rupture from attempting to grab it as it fell from a saw-horse. Petitioner underwent right elbow repair and physical therapy. Petitioner testified he complained of continued pain and lack of full range of motion when his treating provider released him to full duty. Respondent’s examiner calculated Petitioner’s level of impairment at 6% of the upper extremity.

The Arbitrator awarded 30% loss of use of the right arm or five times the level of impairment. The IL WC Commission modified the award and determined Petitioner suffered 25% loss of use of the right arm, but did not provide any analysis or reasoning. The trial court remanded the case back to the IL WC Commission and instructed the Commission to provide facts and reasoning relied upon to modify the Arbitration decision, consistent with the statute.

On remand, the Commission applied the factors set forth in Section 8.1b of the Act and noted the 6% impairment rating did not adequately represent Petitioner’s disability. The Commission reasoned a finding in favor of the rating would disregard the other factors set forth under Section 8.1b. In our view, they completely disregarded the rating, to focus on other factors. With respect to the Commission panel, we don’t feel that appropriately meets the statutory requirement.

On appeal to the IL Appellate Court, WC Division Respondent made two arguments:

First, Respondent argued the Commission misapplied section 8.1b as a matter of law because it “considered factors for which no evidence was present in the record.” The Appellate Court found Respondent did not identify an error of law. It read the Commission decision as having sufficient evidence for all factors it considered under Section 8.1b prior to modifying the award.  

Second, Respondent argued the Commission misapplied section 8.1b as a matter of fact. Respondent argued there was no evidence to support consideration of Petitioner’s occupation, the relationship between Petitioner’s age and his level of disability, Petitioner’s future earning capacity, or evidence of disability corroborated by the medical records. Respondent further argued there was no evidence to support an assertion Petitioner was more prone to future injury.

Although the Appellate Court noted it was unclear whether the IL WC Commission meant a future physical injury or economic injury, it reasoned it was not within its scope to rebalance the factors set forth in Section 8.1b(b) or to substitute its reasoning for that of the Commission.

The Appellate Court noted the Commission’s application of Section 8.1b was not against the manifest weight of evidence and affirmed the decision of the IL WC Commission.

Editor’s note: As I have told our readers on multiple occasions, I don’t see any value in having the defense side of an IL WC claim bring disputes of this nature to this very liberal appellate panel. In the view of your editor, it is a complete waste of time and money because they almost never rule for the defense side of an IL WC claim. While we can’t be sure, it would almost appear an adjuster from this major national insurance carrier wanted a published decision to demonstrate impairment ratings don’t have value in IL WC. We disagree with that view and consider ratings to have value in settlement discussions, pretrials and hearings.

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia at any time for questions about workers’ compensation at lpicazo@keefe-law.com.

11-21-2016; IL WC Reform Set to Die; Is Lifting a Smidgen Going To Be An Accident in IL WC?--A Two-Part Article; Shawn Biery on our New IL Arbitrators and more

Synopsis: IL WC Legislative Reforms to Die; Is The Act of Lifting a Smidgen Going to Be A Work-Accident?

Editor’s comment: This is a two-part article by Gene Keefe, J.D. and John Campbell, J.D.

First, let’s consider status of the IL WC reform battle in Springfield. The news is not-so-good for our business and government readers.

The seemingly never-ending journey to legislatively limit workers’ comp costs in Illinois may never reach its goals. In Springfield, we are advised four leading legislators from both sides met with Gov. Rauner last Wednesday to continue the battle over a deal that might simultaneously end the budget stalemate between Democrats in the General Assembly and the Republican administration.  

Republican leaders and Governor Rauner reportedly discussed their proposed reforms to lower workers' compensation costs in exchange for an end to the current state budget impasse—to our understanding, on January 1, 2017, our State government won’t have an actual budget like other states. In working out the fight over the budget, Gov. Rauner's “turnaround agenda" workers' compensation reforms codified in HB 4248, and were filed in July 2015 by Republican legislative leader Jim Durkin. The bill would

·         Impose a “major contributing cause” standard;

·         “Sort-of” adopt the “traveling employee” definition from the IL Supreme Court ruling in the Venture-Newberg case (we don’t agree with the wording at all and feel it might be an expansion and not a contraction of our law);

·         Create credits for prior awards and settlements for IL employers;

·         Allow for the use of AMA guidelines on their own to adjudicate/set permanency/impairment values and

·         A WC Medical Fee Schedule expansion/reduction. 

And Last Week, Speaker Madigan Basically Dumped The IL WC Reforms Into a Committee to Die

The impetus of filing House Bill 4248 in year 2015 and bringing it up during Wednesday's meeting was to be a starting point for further negotiations. However, shortly after the legislative leader meeting, Speaker Madigan referred the workers' compensation reform proposal to the House Labor and Commerce Committee for a hearing on November 28, 2016 without the consultation of the sponsor, Jim Durkin. As I have advised in the past, I consider House Speaker Madigan to be our resident megalomaniac—this was another demonstration of his insurmountable power and lack of respect for anyone in IL government who disagrees with him.

In addition, the next scheduled leader's meeting takes place the same day as the scheduled committee hearing. The circus behind scheduling HB 4248 before a House committee on a year old bill, that was always considered a long shot for Republicans in a Democratic controlled legislature, is to effectively dump the bill in by allowing the bill to be quietly defeated by the House committee controlled by Speaker Madigan and his minions.  At this point, IL House Republicans are calling for continued discussions and negotiations on workers' compensation reform so our lawmakers can craft a bipartisan solution. No one knows if a six-month budget for the second half of this fiscal year is going to be worked out. On November 28, we will see if the 2015-2016 IL WC legislative reform is killed.

Part Two by John Campbell, J.D.

Synopsis: IL Appellate Court, WC Division growing proficient in finding distinctions where there is no difference. A recent ruling finds an “accident” for what appears to be a very benign, every-day action.

Editor’s Comment: We were left a bit quizzical to read the recent  IL Appellate WC ruling that we simply can’t get our head around.

In Mytnik v. IWCC, published on 11/10/2016, the Illinois Appellate Court, WC Division overturned another decision of the IL WC Commission denying an assembly line worker benefits for a back injury. Despite statements of the IL Supreme Court in two separate rulings confirming this middle court should use great restraint before reversing IWCC rulings on the “manifest weight of the evidence,” we have seen a number of such reversals in recent years. In the case at hand, Claimant was simply reaching to the ground to pick up a small bolt. Nothing terribly heavy, or awkward or highly repetitive. For these reasons, the reversal is troubling for the IL WC defense industry. Please note the cost of this ruling to Ford Motor Company was at least $160,000!

Aside from the reversal on “manifest weight”, this ruling is also notable for what appears to be a recent struggle by this Court in defining what constitutes a “repetitive accident,” a “neutral risk” and which are “quantitative” or “qualitative” risks. What we see is that compensability hinges on whether the innocuous activity was a “required job duty” at the time of the injury.

Why is the “Required Job Duty” Consideration Important?

Well, please note this same Court recently denied a strikingly similar claim  for an office worker who was reaching to the floor to pick up a pen. In Noonan v. IWCC (issued 20 days prior to Mytnik on Oct. 21, 2016) this same Court upheld the denial of benefits when Claimant hurt his wrist reaching to the floor for a pen he dropped. It was reasoned that reaching for a pen was not a “required duty” of that job, so the injury was not compensable.

So, what’s the difference? Let’s see how the Court distinguishes the facts in Mytnik to reach an opposite conclusion.

Claimant Mytnik worked for Ford Motor Co. on their assembly line. Claimant’s  job consisted of installing car suspensions; the work involved twisting and turning, and he periodically had to pick up small bolts that fell off the articulating arm used them to secure the rear suspension system. In our view, small bolts = the pen in the Noonan case, right?

Not So Fast. Same Court, Different Day.

Claimant in Mytnik explained that during his shift, bolts would occasionally fall to the floor and he had to pick them up. Therefore, picking up the bolts was a required job duty. However, in Noonan, the Court concluded that picking up a pen from the floor was not part of the required job duties for the office clerk and therefore, his injury was not compensable, as it was a “neutral risk” with no “qualitative” or quantitative” increased risk.

It is our impression the scenarios in these two cases are largely indistinguishable. In both claims, the act or “risk” leading to injury was “bending over” to lift something very, very light. Numerous prior denials have come from such facts over the history of IL workers’ comp. One could easily argue that office clerk Noonan is generally obligated to pick up a pen he drops while working and is therefore “required” to do so. One could also argue on the other hand that factory worker in Mytnik didn’t always have to pick up every bolt that dropped, or that the dropping of bolts (or picking them up) was not part of the essential job duties and therefore, his injury was not compensable.

In our respectful view, we would welcome a fresh examination by the higher courts when deciding these very innocuous mechanisms of alleged accident and injury. It may be time to erase the chalk board if you will, where we have our courts supposedly analyzing “neutral risks” and “incidental risks” and “quantitative risks” and “qualitative risks”.

We are nostalgic for the good old days where we simply looked at whether there was a true increased risk related to the job to determine there was an actual accident.

In our view, if you want to reform the IL WC system, you may be hard-pressed to change the thinking so you have to change the thinkers. The IWCC did their job in Mytnik to deny a case where the mechanism of “injury” was truly innocuous; picking up a very small item from the floor occasionally at work is a day to day activity performed by the general public. In light of this reversal, it may be hard to give accurate advice to clients as to what may or may not constitute an accidental injury in this State.

Two lasting thoughts from your editor

·         If you make every innocuous act like smidgen-lifting into an “accident”—IL WC claims cannot be defended. Adjusters will have to accept all medical problems that can be in any way said to arise at work as work-related, then pay benefits and WC costs will soar. If any physical/medical problem for someone with a job is going to be compensable, there will be no further need for lawyers on either side nor will we need to have lots and lots of hearing officers and internal IWCC appeals and reviewing courts.

·         In my view, you can’t possibly change this confusing situation via legislation and we feel our Governor should consider giving up that fight—you can’t legislate what I consider common sense. Whatever you legislate about “major contributing cause,” can be ignored, steered around or used against you. In the words of former IL State Chamber President Doug Whitley and others, “if you can’t change the thinking, you need to change the thinkers.” Consider meeting with new IL Supreme Court Chief Justice Lloyd Karmeier to discuss your overall concerns. I assure you he controls the gate and I am happy to explain.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Arbitrator TBA cases will soon have a new hearing officer—Governor Bruce Rauner announced two new Arbitrator appointments to the IL Workers’ Compensation Commission.

Editor’s comment: While we continue to share prior concerns which have been voiced repeatedly regarding the lack of complete transparency in the process of political dealings in Illinois, the two latest Arbitrators appear from background and past experience to be strong appointments if for no other reason than having exceptional experience within the Workers’ Compensation arena.

ü  Governor Rauner has appointed Michael Glaub to the Workers’ Compensation Commission as an arbitrator. He brings decades of experience in workers’ compensation matters, most recently as a partner at Hennessy & Roach in Chicago where he defended workers’ compensation claims for self-insurers and insurance carriers from inception through all potential levels of appeal. He previously served as a Senior Associate at both Spiegel & Cahill and the Roddy Law Group. Arbitrator Glaub earned his bachelor’s degree in economics and political science from Southern Illinois University and his law degree from DePaul University College of Law. Arbitrator Glaub is a seasoned workers’ compensation professional and based upon experience and his handling of claims in which both of our firms handled matters for common clients, Arbitrator Glaub will know how to manage a courtroom and has a solid perspective on what makes a claim compensable and which claims are questionable.

ü  Governor Bruce Rauner has also appointed Frank Soto to the Workers’ Compensation Commission as an arbitrator. Arbitrator Soto has also worked with multiple firms and law practices that which oversee workers’ compensation litigation, most recently owning his own law firm, Law Offices of Frank J. Soto, Ltd., where he concentrated on workers’ compensation, civil litigation, and personal injury administrative hearings, municipal, real estate, criminal, contract and business law matters. He previously oversaw administrative hearings conducted by the Illinois Office of the Secretary of State. Arbitrator Soto also has experience as the Deputy Director of Management Operations and Grant Manager at the Illinois Department of Commerce and Economic Opportunity. He received his bachelor’s degree in economics and business administration from Eastern Illinois University and his law degree from The John Marshall Law School. He lives in Bensenville where he also serves as Village President. Arbitrator Soto is another seasoned workers’ compensation professional and based upon experience defending claims presented by his office, Arbitrator Soto has an understanding of the system and rules of evidence and we anticipate he will be a proficient hearing officer.

This article was written by Shawn Biery, J.D., MSCC based on the press release of the Office of the Governor and his experience in past dealings with the new Arbitrators. Shawn is available for your questions via email at sbiery@keefe-law.com or via phone at 312-756-3701.