Long COVID Continues as a Workplace Crisis

Long COVID continues to impact the lives of US workers. Millions of Americans live with long COVID and its many symptoms. These include fatigue, cognitive impairment (commonly referred to as muscle or joint pain, shortness of breath, heart palpitations, sleep difficulties, mood changes, and more. With millions of Americans suffering daily, more must be done to address this crisis.

Top Blog Posts of 2023

It has been a busy year for the Workers' Compensation blog. This blog has had over 2 million views. Here is a list of the most popular posts in 2023. 

Happy New Year!

Misclassification Lawsuit Filed by NJ Attorney General

Attorney General Matthew J. Platkin and New Jersey Department of Labor and Workforce Development (NJDOL) Commissioner Robert Asaro-Angelo announced today that they have filed the first lawsuit under a 2021 law that permits the State to file suit in New Jersey Superior Court against employers who have misclassified workers as independent contractors when they are, in fact, employees.

Is ChatGPT Ready to Write Workers’ Compensation Decisions?

Artificial intelligence (AI) programs have become an exciting new Internet phenomenon. Initially launched to generate graphics, the programs have rapidly emerged as Internet research's most significant development of the last twenty years.

Employers Fined $1.3 Million for MIsclassification of Workers Including Failure to Have Adequate Workers' Compensation Insurance

The State of New Jersey is strictly enforcing laws that mandate a worker's employment status be properly reported and that employers provide adequate workers' compensation insurance coverage. The state has some of the strictest laws in the country and they are being enforced vigorously through a multi-agency protocol.

Dual Employment and the Proposed NLRB Joint-Employer Standard

Workers’ compensation claims may be pursued against two companies if there is found to be joint employment. While case law defines employment status, the US National Labor Relations Board has issued a proposed Rule to substantiate a dual employer status.

Use of Opioid Settlement Funds in NJ

As part of the Murphy Administration’s ongoing efforts to help New Jerseyans impacted by the opioid crisis, and in recognition of Overdose Awareness Day, Governor Phil Murphy announced additional steps the Administration is taking in New Jersey. Through a new online portal and Executive Order No. 305, the Governor has established two methods through which members of the public and relevant stakeholders can provide their input on the best use of the opioid settlement funds that New Jersey is receiving.

Household Contact COVID Case Status in California Supreme Court

The defense brief has now been submitted to California Supreme Court for review on the question of whether the workers’ compensation act does bars a claim against an employer by a household contact of an employee who contacted COVID at work. The court granted the request, made under California Rules of Court, Rule 8.548, that the court will decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. 

Misclassification: 16 Workers Held to be Employees

 An employer need not control every facet of a person's responsibilities for that person to be deemed an employee.

The EEOC Restricts COVID Testing by Employers

Testing is one of the most important layers of protection that employers and employees have against COVID-19. The US Equal Opportunity Commission [EEOC] has now placed a restriction on COVID testing for employers limiting to only where there is defined “business necessity.” 

New Laws in NJ Are a Step to Reduce Gun Violence in the Workplace

Gun violence in the workplace continues to be a significant occupational hazard. Whether it occurs on the work premises or carriers over to an off-premises location, gun violence remains a continuing risk associated with a job,

Dual Employment Status Bars Double Recovery

An employee may have dual employers but ultimately can only receive a single recovery from only one employer for work-related injuries. The “exclusivity doctrine,” permitting a complete recovery of damages against an employer, limits an injured worker’s benefit recovery to the compensation system, barring an intentional tort.

The Master of the Complaint Retains Jurisdiction

Deciding employment status is an issue that can be resolved either before the Division of Workers’ Compensation [DWC] or before Superior Court in a civil action.

OSHA Emergency Temporary COVID Standard Upheld by Federal Court of Appeals

The Sixth Circuit Court of Appeals reversed the Fifth Circuit Court of Appeals’ decision staying the Biden Administration’s Emergency Temporary Standard (ETS) of the Occupational Safety and Health Administration (OSHA). The split decision (2-1) of the three-judge panel upholds vaccine mandates against COVID infections for places of employment having 100 or more employees. 

An appeal to the US Supreme court is anticipated.

Summary

“The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit…”

The Emergency Temporary Standard

“The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces….. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly…. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt…. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done…. Employers must also confirm their employees' vaccination status and keep records of that status…. Consistent with other OSHA standard penalties, employers who fail to follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532 for each willful violation. 29 C.F.R. § 1903.15(d). “

 Holding

1. OSHA has demonstrated the pervasive danger that COVID-19 poses to workers􀂲unvaccinated workers in particular􀂲in their workplaces

2. OSHA’s issuance of the ETS is not a transformative expansion of its regulatory power as OSHA has regulated workplace health and safety, including diseases, for decades. 

3. There is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.

4. The factors regarding irreparable injury weigh in favor of the Government and the public interest.  

In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al., 5thCir, 2021. Decided December 17, 2021.

Appeals to US Supreme Court

-BST Holding, LLC filed an Emergency Application for Relief "Whether OSHA’s private-employer mandate violates the Religious Freedom Restoration Act or the First Amendment"

-IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402, ISSUED ON NOVEMBER 4, 2021

US Supreme Court to hear oral argument on 7 Jan 2022.

Recommended Citation: Gelman, Jon L.,  OSHA Temporary Emergency COVID Standard Upheld by Federal Court of Appeals, Workers' Compensation Blog (Dec. 17, 2021), https://workers-compensation.blogspot.com/2021/12/osha-temporary-emergency-covid-standard.html

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Amazon Settles with California Over Concealment of COVID Data From Warehouse Workers COVID-19 11/17/21

OSHA issues emergency temporary standard to protect workers from coronavirus 11/04/21

Biden Administration Targets Occupational Exposure to PFAS 10/22/21

Vaccine Mandate-EEOC: Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation 10/20/21

COVID Boosters: What Employees and Employers Need to Know 10/14/21

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 5 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

Twitter: jongelman

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: "Workers' Compensation Law" Thomson-Reuters

Updated 12/23/2021

A Potential Game-changer for Workers' Compensation

This week’s ruling by the  United States Supreme Court [SCOTUS] is a potential game-changer for workers' compensation. SCOTUS unanimously ruled that the National College Athletic Association [NCAA] cannot restrict student-athletes from receiving payment for endorsements.

Contractual Choice of Law Held Governing

The choice of law embodied in a contract is governing a recent NJ Appellate Division ruled. 

NJ Senate to Vote on Employment Bill

Workers in NJ who are injured at work do not have protected job status. Typically, employers will fill their positions with a replacement just because they are “absent" from work.

The NJ Senate will vote vote on S2998 on June 3, 2021. This bill addressed that issue and requires any employer who has 50 or more employees to provide a hiring preference to an employee who was injured in a work- related injury, has reached maximum medical improvement, and cannot return to the employee’s former position with that employer. The employer is only required to provide the hiring preference if the employee can perform the essential duties of an existing, unfilled position.

The bill does not require an employer to create a new position for the injured employee, nor does it require the employer to remove another employee from an existing but filled position to accommodate the injured employee.

The identical bill was approved by the NJ Assembly 76-0 on May 20. 2021. The NJ Senate SLA Committee reported the bill out favorably on 1/29/20 3-0.

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COVID-19: A lesson for the workers’ compensation industry 5/11/2021

Is the workers' compensation system ready for the 2019-nCoV [coronavirus] virus? Live Updates

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

U.S. Equal Employment Opportunity Commission Issues Update On Vaccinations

The following is shared from the U.S. Equal Employment Opportunity Commission eeoc.gov 

NJ Successfully Targets Employee Misclassification

In response to a report issued by Governor Murphy’s Task Force on Employee Misclassification, the New Jersey Department of the Treasury has made significant strides to deter misclassification by organizations that do business with the State in order to help address the underlying causes that lead to ever-widening income inequality.

Cannabis Legislation Enacted in NJ

Today the NJ Legislature approved, and Governor Phil Murphy signed sweeping legislation to legalize the sale of recreational marijuana. Today's action follows the legislative enactment of medical marijuana laws in NJ and case law approving medical marijuana for the treatment of work-related injuries.