Employer Responsibility in the Flu Pandemic

The threat of the spread of flu this fall in the US is a major concern to infectious disease specialists. Healthcare workers are extremely apprehensive as the disease is beginning to spread and employers have not instituted adequate protections for workers.

In the US alone there have been 6,506 hospitalizations of H1N1 Flu patients. The CDC has reported that there have been 436 reported to date because of the novel flu infection. The World Health Organization (WHO) declared the virus a Phase-6 pandemic, the highest level of concern. Over 1,154 deaths have been reported worldwide.

The CDC has issued an Interim Guidance for controlling the spread of infection in healthcare facilities including hospitals, long-term care and outpatient facilities and other settings where healthcare is provided.

Healthcare workers have rallied to protest the firing of a co-worker who disclosed that a healthcare facility was not taken appropriate action to prevent the spread of flu at its work site. The major national unions in April 2009 warned in a report that employers were not taking adequate precautions to protect healthcare workers.

Most recently a task force of the Institute of Medicine (IOM) charged with the responsibility of making recommendations on how to protect workers from the H1N1 flu heard evidence that actions by employers could reduce the spread of the disease. It was reported the use of N95 masks provided 75% protection against lab-confirmed flu.

Workers' remedies from the residuals of the illness have now been limited. The Federal vaccination compensation program will shield the vaccine makers from liability claims. Employers will be protected against civil law suits by the exclusivity provisions of the workers' compensation system. Workers' Compensation does not encompass a roll in prevention of disease. OSHA has alerted employers to take action, but cannot compel them to do so.

It is time for employers to act to prevent unnecessary illness and death in the workplace. Simple educational and enforcement actions by employers will go along way to protect workers from the consequences of this unprecedented pandemic. While time is short and the clock is ticking away as the US flu season formally approaches, time still remains for employers to act and mandate protocols and procedures that will prevent the spread of the disease and will save lives.

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For more on workers compensation and the flu pandemic visit the Workers' Compensation Blog.

NJ Work Comp 2010 rates jumps up 2.7%

It has been announced that the NJ maximum workers' compensation rate will bounce up to a new maximum rate of of $794 per week in 2010. The rate in maximum rate in 2009 was was $773 per week. The rate is mandated by statute and changes yearly. It is calculated from the the State Average Weekly Wage (SAWW) for the year prior.

Federal Summit Planned for Distracted Driving

The problem of the increase in accidents on the road caused by distracted drivers will now be the subject of a Federal summit. U.S. Transportation Secretary Ray LaHood has announced a summit in Sate September.

“If it were up to me, I would ban drivers from texting, but unfortunately, laws aren’t always enough,” said Sec. LaHood. “We’ve learned from past safety awareness campaigns that it takes a coordinated strategy combining education and enforcement to get results. That’s why this meeting with experienced officials, experts and law enforcement will be such a crucial first step in our efforts to put an end to distracted driving.”

Yet to be determined is how this new concern will impact State Workers' Compensation programs.

New Legislation to Strength OSHA Introduced in the Senate

New legislation ( S.1580) was introduced last week in the US Senate by Senator Reid on behalf of Senator Kennedy and co-sponsored by:

COSPONSORS(19)
Sen Akaka, Daniel K. [HI] - 8/5/2009
Sen Bingaman, Jeff [NM] - 8/5/2009
Sen Boxer, Barbara [CA] - 8/5/2009
Sen Brown, Sherrod [OH] - 8/5/2009
Sen Casey, Robert P., Jr. [PA] - 8/5/2009
Sen Dodd, Christopher J. [CT] - 8/5/2009
Sen Durbin, Richard [IL] - 8/5/2009
Sen Feingold, Russell D. [WI] - 8/5/2009
Sen Franken, Al [MN] - 8/5/2009
Sen Harkin, Tom [IA] - 8/5/2009
Sen Lautenberg, Frank R. [NJ] - 8/5/2009
Sen Leahy, Patrick J. [VT] - 8/5/2009
Sen Menendez, Robert [NJ] - 8/5/2009
Sen Merkley, Jeff [OR] - 8/5/2009
Sen Murray, Patty [WA] - 8/5/2009
Sen Sanders, Bernard [VT] - 8/5/2009
Sen Schumer, Charles E. [NY] - 8/5/2009
Sen Stabenow, Debbie [MI] - 8/5/2009
Sen Whitehouse, Sheldon [RI] - 8/5/2009


The legislation will strenghten the Occupational Safety and Health Administration and will make the woprkplace a safer environment.

Senator Reid stated, "“We now have strong partners in the White House and at the Department of Labor who are committed to making our workplaces safer. But they need action by Congress as well. That is why today we are reintroducing the Protecting America’s Workers Act, to take concrete steps to address many of the failures of the existing law.”

Senator Kennedy declared in his introductory remarks, "Mr. President, today I am pleased to introduce the Protecting America’s Workers Act. Almost 40 years ago, Congress set out to guarantee a safe workplace for all Americans. The Occupational Safety and Health Act of 1970 was landmark legislation that has dramatically improved the well-being of working men and women. Since then, the annual job fatality rate has dropped from 18 deaths per 100,000 workers to less than four. Thousands of lives have been saved each year. These are not abstract numbers— they represent thousands of families who have been spared the pain and heartache of losing a loved one on the job.....We need to send a strong message that it is unacceptable to treat workers as expendable or disposable."

CMS Requests Public Comments On Mandatory Reporting

The Centers for Medicare and Medicad Services (CMS) has published a public notice requesting comments on the definition of a Responsible Reporting Entity (RRE) to comply with MMSEA Section 111.

The proposed changes would replace the existing Section 7.1 of the User Guide. The proposals would further define:

1. Who Must Report

2. TPAs (Third Party Administrators)

3. RRE (Responsible Reporting Entities)

4. Deductible Issues

5. Fronting Policies

6. Re-insurance, Stop Loss Insurance, Excess Insurance, Umbrella Insurance, etc.

7. Multiple Defendants

8. Self-Insurance Pools

9. Assigned Claim Funds

10. Workers' Compensation

11. Liquidation

12. Bankruptcy

13. Multi-National Organizations, Foreign Nations, American Indian, Alaskan Native Tribes

Comments must be submitted by August 16, 2009.

Asbestos Exposure Results in $200,000 Award for Future Medical Monitoring

The NJ Appellate Division recently affirmed a jury award for $200,000. for medical monitoring. The injured worker was exposed to asbestos fiber at worked as a millwright for a paper mill during the years 1956 through 1994 and a Johns Manville for approximately 6 months in 1955. He was diagnosed as having "pleural plaques" on his lungs.

The Court, relying on other judicial precedent, held that the award of damages for future medical medical monitoring was "'consistent with well-accepted legal principles'" and "'the important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease.'"

Since asbestos related disease is progressive and has a long latency period from the initial exposure to the onset of disease (asbestos, cancer & mesothelioma) it is warranted that medical monitoring through doctor's visits are warranted.

Sarkozy v A.P. Green, et al., NJ Super A-0312-07T1 (App Div) Decided July 31, 2009.

Highlighting Safety at OSHA

The President's nomination of David Michaels to lead the Occupational Safety and Health Administration (OSHA) underscores the Administration's desire to emphasize the need for safety in the workplace. Michaels, author of the book, "Workers at Risk," recognized that safety is a shared responsibility between Labor and Industry.

In a recent discussion on National Public Radio's program "Living on Earth," a "New Approach to Workplace Dangers" was discussed. "President Obama recently announced the nomination of David Michaels to head up the Occupational Safety and Health Administration (OSHA). Michaels, a public health professional, has been an outspoken critic of polluting industries, accusing them of manufacturing uncertainty so as to undermine the science behind regulation. Host Jeff Young talks to Sidney Shapiro, a Wake Forest Law Professor and OSHA expert, about this nomination."

Michael's has indicated that a change of culture is called for. "What polluters have seen is that the strategy that the tobacco industry came up with, which essentially is questioning the science, find the controversy and magnify that controversy, is very successful in slowing down public health protections. And so the scientists who used to work for the tobacco industry are now working for most major chemical companies. They don't have to show a chemical exposure is safe. All they have to do is show that the other studies are in question somehow. And by raising that level of uncertainty, they throw essentially a monkey wrench into the system."

The agency will next have to be given the necessary tools to permit the culture of safety to flourish. OSHA must become proactive about safety. Congress will now have to act to implement new laws to strengthen OSHA's mission of safety.