Congressional Move Attempts to Resurrect Federal Scrutiny of State Workers’ Comp Programs

Congressional Move Attempts to Resurrect Federal Scrutiny of State Workers’ Comp Programs

Six years after a ProPublica report focused increased scrutiny on Texas’ nonsubscription option and the workers’ compensation industry, federal policy makers are again considering increased federal oversight of state workers’ compensation systems. 

In the months after the 2015 ProPublica report, several prominent lawmakers called on the Department of Labor to increase oversight of state workers’ compensation programs under the agency’s existing legal authority. The request languished under the Trump administration and no action was taken. However, the concept of increased federal oversight has been raised again as lawmakers craft the Fiscal Year 2022 budget reconciliation bill. 

Tucked into an early version of the reconciliation bill is a provision to provide $121 million to the U.S. Department of Labor Office of Workers’ Compensation Programs to monitor state workers’ compensation programs. The House of Representatives’ Education and Labor Committee voted in September to approve proposed language for the provision. 

The move follows a report earlier this year from the House Committee on Appropriations in explanation of the reconciliation bill that asserted that there has been an ongoing and systematic decline in the adequacy of state workers’ compensation benefits, resulting in the shifting of costs for disabling workplace injuries to federal programs, such as Social Security Disability Insurance. Additionally, the report asserts that the growth of the gig economy and misclassification of workers as independent contractors has resulted in millions of workers falling through the cracks of state workers’ compensation systems. 

The report recommends that state workers’ compensation programs be monitored on an ongoing basis (which was done from 1972 to 2004), and it requests that the OWCP include in the FY 2023 Congressional Budget Justification an assessment of the resources necessary to reinstate OWCP’s monitoring of state workers’ compensation programs and preparation of an annual report. 

It is worth noting that there is no authority under federal law for the Office of Workers’ Compensation Programs to monitor state workers’ compensation programs. Member companies with federal lobbyists are encouraged to make their lobbyists aware of this latest attempt.

Texas Law Provides Broad Protections for Employers Against COVID Claims

Legislation adopted earlier this year by state lawmakers affords Texas employers a strong defense against lawsuits brought by employees claiming that they contracted COVID-19 in the workplace. 

The Texas Pandemic Liability Protection Act establishes major hurdles that plaintiffs must clear to win a COVID-19 exposure case against an employer. The law took effect June 14, however, its employer protections are retroactive.  

Edward Johnson, a partner at Dallas-based Mayer LLP, said the legislation means claimants must prove that the employer knowingly failed to warn or remediate a condition that the employer knew was likely to expose the worker to COVID. Further, claimants must prove the defendant had control over the condition, knew the employee was more likely than not to be exposed to COVID-19, and had reasonable opportunity and ability to remediate or warn before the employee came into contact with the condition. 

Johnson said plaintiffs could also argue that the defendant knowingly failed to implement or comply with government standards, guidance or protocols (SGP) intended to lower the likelihood of exposure to the disease. If choosing this route, plaintiffs would need to show the defendant had a reasonable opportunity and ability to implement or comply with the SGP but acted with flagrant disregard and that there weren’t conflicting SGP preventing the defendant from complying. 

“This will be a really tough hurdle for a plaintiff to overcome: to show that a company was aware of a COVID risk and didn’t do anything to mitigate it,” Johnson told attendees at the Texas Alliance of Nonsubscribers annual meeting Oct. 13. 

Regardless of which route plaintiffs take, the legislation requires that plaintiffs provide an expert witness report providing the factual and scientific basis for the assertion that the alleged failure to act caused the plaintiff to contract COVID-19. 

“Obviously a lot of wishful plaintiffs are going to have trouble with this because they will likely have a difficult time proving how or when they contracted the virus,” Johnson said.

State and Federal Edicts on Vaccine Mandates for Businesses in Conflict

Texas Gov. Greg Abbott’s executive order preventing any entity in Texas from requiring a COVID-19 vaccine for workers or customers could be overridden by an impending order from the federal government requiring that large employers ensure their workforce is fully vaccinated or require any unvaccinated workers to produce a negative test result on a weekly basis. Abbott added legislation supporting his executive order to the items eligible during the state’s special session, but the proposal lacked adequate support for passage and was not adopted prior to the session adjourning.  

Kyle Briscoe, a trial lawyer specializing in defense litigation and shareholder for PeavlerBriscoe, told attendees at the Texas Alliance of Nonsubscribers annual meeting Oct. 13 that although the two orders are conflicting, the supremacy clause of the U.S. Constitution and established federal case law addressing “preemption” suggests the federal order would take precedence.  

President Joe Biden in September directed the U.S. Occupational Safety and Health Administration (OSHA) to prepare rules that would require employers with 100 or more employees to ensure their workforce is either fully vaccinated or require unvaccinated employees to show proof of a negative COVID test on a weekly basis before coming to work. Violations under the OSHA order are expected to result in fines up to $13,653. The 100-employee trigger would apply on a companywide basis, rather than on the number of employees at a particular site. 

Additionally, employers with more than 100 employees are expected to be required to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. At press time, OSHA had not released the proposed rule. 

On Oct. 11, Abbott issued an executive order aimed at preventing any Texas entity from enforcing a vaccine mandate on employees or customers. He announced fines of up to $1,000 per violation.  

Briscoe noted that the U.S. Constitution’s supremacy clause prohibits states from interfering with the federal government’s exercise of its constitutional power and that a conflict exists when “compliance with both federal and state regulations is a physical impossibility,” where state law “stands as an obstacle to the accomplishment and execution of the full purposes of federal law.” 

He advised employers to determine if the OSHA order will apply to their workplace, and if so to consider the following: 

  • How to deal with remote workers. 
  • How to coordinate with on-site contractors about compliance, particularly those with fewer than 100 employees. 
  • How to identify vaccinated and unvaccinated employee and how to protect that information. 
  • How employees are to report the results of testing. 
  • Whether to require proof of vaccination, and if so, what constitutes proof. 
  • Whether to sponsor on-site vaccination clinics. 
  • Whether to sponsor on-site testing. 
  • Whether to supply test kits and how to use them. If not, how to instruct employees about obtaining test kits. 
  • Whether to pay for the test kits and if so, how.
  • How to provide paid time off for vaccination and recovery.  
  • How to deal with employees who refuse both vaccination and testing. 
  • How to keep proper records supporting compliance. 

EEOC Lawsuit May Be Indication of Agency’s Approach to Remote Work Accommodation Requests

A recently filed case by the U.S. Equal Employment Opportunity Commission puts employers on notice that EEOC will use an employers’ remote working arrangements during the COVID-19 pandemic as evidence that employees should be permitted to work from home as an accommodation to a disability. 

Prior to the pandemic, EEOC advocated that work-from-home requests be granted as an accommodation under the Americans with Disabilities Act. The recent case provides a glimpse of what the EEOC will expect in future work-from-home arrangements. 

Robert Estrada, an associate with the El Paso-based law firm Blanco, Ordonez, Mata & Wechsler, provided details during the Texas Alliance of Nonsubscribers annual meeting Oct. 13. Estrada said the case involves Ronisha Moncrief, a former health and safety manager for ISS Facility Services in Georgia, who in March 2020 asked to work from home two days a week as an accommodation for her chronic obstructive pulmonary disease and hypertension.  

Shortly after that request, ISS placed all its staff on modified work schedules where employees worked from home four days per week, however, in June 2020, ISS required all staff to return to in-person work five days per week. Moncrief then renewed her request to work from home two days per week and provided ISS with documentation establishing that her history of heart conditions increased her COVID-19 risk. Records also showed that other employees had been allowed to work from home following the June 2020 return-to-work.  

Her request was denied in July 2020, and in August 2020 her supervisor recommended her termination based on poor performance, although she had never previously been advised that she performed poorly. She was terminated in September 2020, and in September 2021 EEOC filed a disability discrimination suit on her behalf. The case is pending before the U.S. District Court for the Northern District of Georgia. 

Estrada said the EEOC action suggests that employers should give special consideration to remote work requests. If an employer has been able to operate efficiently under remote arrangements, it will be expected that they make remote work available as an accommodation going forward. 

He provided the following advice for employers: 

  • Review pending requests for remote work as an accommodation. Such accommodations should be considered on a case-by-case basis. 
  • Review job duties and position descriptions. Determine precisely what the employee’s essential job duties are and how often they must perform those tasks. Outdated job descriptions or understandings of an employee’s actual job duties can hinder this analysis. As an example, a job that requires frequent face-to-face interaction may no longer be expected since video conference platforms are available. 
  • Ensure requests are handled consistently. Evidence that other employees, especially those in the same or similar positions, have been allowed to work remotely or continue to work remotely may be considered evidence that an employer has violated its obligation under the ADA. 
  • If an employer is faced with more than one request for remote work as an accommodation, it must be able to justify why it can accommodate some employees and not others. This may be for legitimate reasons, such as data security or to be physically present to access or use equipment or products. 

COVID-19 Infection & Causation Analysis
By Trang Nguyen, M.D., Ph.D. (Epidemiology) - MedicusRx

The virus productive of the COVID-19 infection is ubiquitous, meaning it can be found anywhere. It is dispersed in air as an aerosol from people breathing, sneezing and coughing. We are exposed to the virus while performing virtually any activity of daily living, from using public transportation to going to church, the grocery store or the shopping mall. In short, the virus is all around us. 

Epidemiology is the study of the cause and determinants of human disease. This scientific evaluation of causation requires assessment/analysis of any and all possible causes of a human health problem of any kind, ranging from orthopedic issues to infectious diseases to cancers. The medical scientist/epidemiologist must be able to:  

  • Address the biologic plausibility of a purported cause and effect relationship.  
  • Address possible alternative explanations (differential diagnoses) for the relationship, and support or refute potential causes with published science.  
  • Statistically analyze the assumed relationship(s) for statistical support. 
  • Determine if the observed cause and effect relationship exists in other populations. 

In other words, guesswork must be removed from causation statements in order for such a relationship to pass scientific scrutiny. To do otherwise is simply an expression of opinion, which may not be defensible. 

We know that COVID-19 is a virus, originating in China. We know the virus can be found anywhere. We know the virus can be spread through any and all types of airborne mechanisms, such as talking, coughing, sneezing, or from droplets attached to common surfaces like countertops, elevator buttons and stair rails.  

So how can we prove a COVID infection arose from one specific activity, such as a person-to-person interchange at school or work, or a public event like a sports activity? The simple answer is that we cannot make such a statement of causation with certainty.  

With exposure to this ubiquitous virus, almost a certainty with any form of social activity ranging from a grocery store trip to visiting friends or eating at a restaurant, isolating causation to a single event would be difficult.  

Some people with significantly increased exposure to the afflicted population, such as emergency room or intensive care personnel or emergency first responders, are considered at higher risk due to the nature of their job exposures. But these represent a truly unique segment of the population.  

Statements of COVID infection should be individually assessed if a causation statement is provided. Any such statement must be accompanied by a thorough exposure history, diagnostic study results, and an assessment of medical records.  

The science of causation analysis should be rigorously followed before a conclusion of causation can be reached.  

Texas Workers’ Comp Report Shows Significant Increase in Telemedicine Use During Pandemic

Not surprisingly, workers’ compensation telemedicine claims in Texas increased during the COVID-19 pandemic, rising to 21,086 claims between the onset of the pandemic in March 2020 and July 31, 2021, according to a new report from the Texas Department of Insurance Workers’ Compensation Research and Evaluation Group. That figure compares to 951 telemedicine claims filed between 2018 and March 2020. 

Put another way, less than 1% of claims receiving professional medical services received telemedicine pre-pandemic, but increased to 7% of claims during the pandemic. Overall, only 3% of claims that received professional medical services received at least one telemedicine service from Sept. 1, 2018, through July 31, 2021. 

The most frequently used telemedicine service both before and during the pandemic was evaluation and management services (office visits). The average number of days from injury to initial telemedicine service was about six to seven weeks from April to September 2020, but decreased in 2021 to about three weeks. 

Health care providers billed for 80,613 telemedicine services between Sept. 1, 2018, through July 31, 2021, with 76% of these services paid by insurance carriers. The total charged by health care providers for these telemedicine services was just more than $15.1 million and insurance carriers paid $7 million, or 46%. The amounts charged and paid for telemedicine services during the pandemic was slightly more than $14.7 million for telemedicine services during the pandemic, with 46% ($6,792,701) paid by insurance carriers. Before the pandemic, the amount charged was $383,220, but a higher percentage of these charges were paid by insurance carriers (62%, or $235,945). 

The report is available here. 

OSHA Moves Toward Restoring Injury and Illness Reporting Requirements

The Occupational Safety and Health Administration (OSHA) appears to be moving closer toward restoring injury and illness recordkeeping regulations that were abolished under the Trump administration. 

A proposed rule restoring two parts of OSHA’s injury and illness recordkeeping requirements was submitted to the White House Office of Information and Regulatory Affairs on Oct. 1 for review. There is no timetable for the review’s completion, however, upon completion of the review, the proposed rule would be published in the Federal Register, followed typically by at least a 30-day period for public comment. 

Employers currently are required to submit Form 300A — a yearly summary of injury and illness data — instead of the two more detailed forms. The proposed new rule is expected to restore the requirement that establishments with 250 or more employees submit electronic submissions of their injury and illness data from Forms 300 and 301. Those forms, which typically include more detailed information about injuries and illness, were abolished in 2019 under the Trump administration, which argued they contained proprietary information. Labor groups and others had argued that eliminating the reporting requirements allows employers to hide injury records and keep the public in the dark about unsafe workplaces. 

OSHA Reveals Top 10 Safety Violations for Fiscal Year 2021

The Occupational Safety and Health Administration (OSHA) has announced its preliminary top 10 most frequently cited workplace safety standards for fiscal year 2021.  

Fall Protection (1926.501) remains at the top of the list for the 11th year in a row, followed by Respiratory Protection (1910.134) and Ladders (1926.1053). Hazard Communication, which spent the last several years at No. 2, moved to the fifth spot on this year’s list. 

“Throughout the pandemic, workplace safety has become more important than ever,” said Lorraine Martin, NSC president and CEO. “Although incredible advancements are made in safety each year, the OSHA Top 10 list reminds us that we must continue to pinpoint areas where we can improve so we can better prioritize workplace safety in the future world of work.” 

The top 10 most frequently cited workplace safety standards for FY 2021 are: 

  1. Fall Protection — General Requirements (1926.501): 5,295 violations 
  2. Respiratory Protection (1910.134): 2,527 
  3. Ladders (1926.1053): 2,026 
  4. Scaffolding (1926.451): 1,948 
  5. Hazard Communication (1910.1200): 1,947 
  6. Lockout/Tagout (1910.147): 1,698 
  7. Fall Protection — Training Requirements (1926.503): 1,666 
  8. Personal Protective and Lifesaving Equipment — Eye and Face Protection (1926.102): 1,452 
  9. Powered Industrial Trucks (1910.178): 1,420 
  10. Machine Guarding (1910.212): 1,113 

A more in-depth analysis of the top 10 violations for 2021 will be published in the December edition of  Safety+Health magazine, a National Safety Council publication. 

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