Federal Legislation Could Impact Nonsubscriber Plans

Federal Legislation Could Impact Nonsubscriber Plans

Legislation has been introduced in the U.S. Congress that could adversely impact nonsubscription policies that include arbitration clauses.

The Employee and Retiree Access to Justice Act of 2022 is sponsored in the U.S. Senate by Sen. Tina Smith, D-Minn., and in the House by Rep. Mark DeSaulnier, D-Calif.

The legislation would amend the Employee Retirement Income Security Act of 1974 to provide that any mandatory pre-dispute or coerced post-dispute arbitration clause, class action waiver, representation waiver or discretionary clause with respect to a plan is unenforceable.

Alliance members are encouraged to contact their congressional representatives (and others if possible) to ask that they not co-sponsor or support the legislation. You may visit https://www.congress.gov/members/find-your-member to identify your representative. Members may also wish to communicate with officials other than their representative. For example, Congressman Joaquin Castro (D-San Antonio, Texas) is the only Texas member serving on the committee who will consider the bill. Ask him not to co-sponsor and to oppose HR 7740 in committee and during a floor vote.

If you live in or have a facility in their district, tell them how this legislation will negatively impact your company/occupational injury program. Share a copy of your communication with TAN (emmanuel.winston@bravarro.com).

Once you have identified your representatives, click on the “Contact” link on their home page to message them. You may write your own message or use the one below (remember to add if you live in or have a facility in their district):

For members of the U.S. House of Representatives:

“HR 7740 will adversely impact my company’s occupational injury plan by increasing litigation rather than encouraging mutual settlements through arbitration, and by undermining and disrupting the benefit plan administrator’s ability to effectively and judiciously administer program benefits. Please oppose HR 7740. Thank you.”

For U.S. Senators Ted Cruz and John Cornyn:

“S 4219 will adversely impact my company’s occupational injury plan by increasing litigation rather than encouraging mutual settlements through arbitration, and by undermining and disrupting the benefit plan administrator’s ability to effectively and judiciously administer program benefits. Please oppose S 4219. Thank you.”

Visit https://www.cornyn.senate.gov/node/5853 to message Sen. John Cornyn.

Visit https://www.cruz.senate.gov/contact/write-ted to message Sen. Ted Cruz.

The legislation has been referred to committees in both chambers and no hearings have been scheduled.

The full text is available here.

Poll Shows Texas Statewide Races Tightening

Gov. Greg Abbott holds a 5-percentage-point lead over Democratic challenger Beto O’Rourke, 45% to 40%, according to the latest University of Texas/Texas Politics Project Poll.

The same poll finds Lt. Gov. Dan Patrick leading Democratic challenger Mike Collier by 7 percentage points, 39% to 32%. Attorney General Ken Paxton leads his Democratic challenger, Rochelle Garza, 38% to 33%.

The poll of 1,200 registered voters was conducted online from Aug. 28 to Sept. 6 and has a margin of error of +/- 2.83 percentage points for the full sample. Other key findings in the poll include:

  • Fifty-two percent of respondents support the state’s recently implemented policy of bussing international migrants awaiting asylum hearings to other parts of the country.
  • Only 22% of Texans say that Texas’ elected officials have done “enough” to prevent mass shootings in the state. The majority, 57%, say they have done “too little.”
  • A plurality of Texans, 49%, said abortion laws in Texas should be made “less strict.”
  • Texans were evenly divided in their reaction to the Supreme Court’s Dobbs decision, but only 12% of Texans, consistent with past polling, said that abortion should be completely prohibited.
  • Forty-two percent report that their families are economically worse off than they were a year ago, while 17% say they are better off.
  • Texans overall are not enthusiastic about either Joe Biden or Donald Trump running for president again in 2024: 59% said Biden should not run for reelection, and 57% said Trump should not run again.

Immigration and/or border security were cited as the most important issue in 2022 vote decisions by a plurality of voters (26%), including 49% of Republicans and a plurality of independents (27%).

Complete poll results are available here.

Division of Workers’ Compensation Releases Latest Information on COVID Claims

Insurance carriers have reported more than 90,300 COVID-19-related workers’ compensation claims and 459 fatalities in Texas since the beginning of the pandemic, according to data reported to DWC by insurance carriers through Aug 7. Slightly more than half of the claims (51%) and fatalities (55%) involve first responders and correctional officers.

The information comes from administrative claim data reported to DWC by insurance carriers from March 13, 2020, through Aug. 7, 2022. Specific information on indemnity and medical benefits paid for COVID-19 claims is limited to benefits paid as of Aug. 10, 2022, on claims reported to insurance carriers as of June 3, 2022. Additionally, DWC conducted a data call with 74 selected insurance carriers to collect information on how many workers’ compensation claims resulted in a positive test or diagnosis as of June 30, 2022, and the disposition of those claims.

According to DWC, 68% of all claims involved injured employees who tested positive or were diagnosed with COVID-19. Insurance carriers accepted 59% of COVID-19 positive test claims and denied 39%. Despite more than 22,000 denials of COVID-19 claims with positive tests or diagnoses, only 207 disputes were filed with DWC as of Aug. 7, 2022.

As of Aug. 10, 2022, a total of $121.6 million has been paid as indemnity benefits ($78.3 million) or medical benefits ($43.3 million) for COVID-19 claims reported to insurance carriers from March 13, 2020, through June 30, 2022. Of the medical costs, $33.6 million was for hospital/facility services, $8.7 million for professional services, and $1 million for pharmacy services. Most of these costs have been paid by political subdivisions (77%), followed by commercial insurance carriers (19%) and the state of Texas (3%). These costs are likely to increase over time as claims mature.

More information from the latest state report on COVID claims in the workplace is available here.

W.C. Benchmarking Study Provides Tips on Claims Management Mastery

The recently released 2021 Workers’ Compensation Benchmarking Study from Rising gathered more than 30 industry executives to examine real-world strategies organizations are using to overcome barriers to claims management mastery. Participants represented a national cross section of self-insured employers, regional and national carriers, state funds, and third-party administrators.

The following are some of the key recommendations included in the study:

  • Train employers/frontline supervisors on the significant company and human value of stay-at-work/return-to-work and how to communicate with injured workers, including cultural awareness, empathy and active listening skills as well as how to have meaningful conversations with injured workers in ongoing training.
  • Enhance training for frontline claims professionals to include empathy, active listening and conflict management, including motivational interactions to improve injured worker engagement and empowerment.
  • Flip the script from limitations to abilities. Change the vernacular from “light duty” or “restrictions” to towards that empower the injured worker.
  • Communicate with injured workers frequently and in layperson’s terms regarding when to expect compensability decisions, indemnity benefits, medical treatments, etc.
  • Leverage tools such as text messaging, apps and surveys to engage injured workers early and frequently and provide immediate access to claim information (i.e., how to access provider networks and pharmacy benefits, how to reach claims professionals, etc.) as well as assess ongoing satisfaction with the claims process.
  • If a claim is delayed, denied, or partially denied and/or medical treatment is denied or delayed pending utilization review, communicate these decisions verbally prior to sending legalese notifications.
  • Leverage advanced analytics, including text mining, to predict and proactively identify injured worker fear or dissatisfaction with the claims process and/or medical care, as well as the potential for litigation.
  • Provide education through case management programs on health care literacy, including how to use benefits and locate providers in workers’ communities.

The full study is available here.

OSHA Announces Plans for New Rules

The Occupational Safety and Health Administration (OSHA) announced it is developing several rules that would address safety management to prevent major chemical accidents, workplace violence in health care and social assistance, a standard for infectious diseases in the workplace, and a comprehensive rule for emergency response.

In a notice published in August, OSHA said it intends to hold stakeholder meetings soon on rulemaking to revise the agency’s process safety management standard to better prevent major chemical accidents. The U.S. Chemical Safety and Hazard Investigation Board currently has 14 open recommendations for OSHA to address.

OSHA also plans to start a Small Business Regulatory Enforcement Fairness Act panel to consider creating a workplace violence prevention standard for health care and social assistance. There is no current federal workplace violence standard. The agency issued voluntary prevention guidelines in 1996 for health care and social assistance.

The August notice also said that OSHA plans to issue new rules for infectious diseases. The safety agency noted that health care workers and others face exposure to infectious diseases such as measles, chicken pox, shingles, tuberculosis, and methicillin-resistant Staphylococcus aureus. Workers are also exposed to new and emerging infectious diseases such as COVID-19, pandemic influenza, and severe acute respiratory syndrome.

OSHA also indicated it will work toward an emergency response standard. Several current OSHA standards apply to emergency preparedness and response; however, there is no comprehensive federal safety standard and OSHA acknowledges that its standards do not reflect current emergency response practices or consensus industry standards.

More information about the proposed new rules is available at the links listed below:

Workplace Violence in Health Care:

Emergency Response:

Infectious Diseases:

Safety and Prevention of Major Chemical Accidents:

Study Identifies Deadliest Day at Work

For years, it was accepted wisdom that Mondays were the Bermuda triangle of the modern workweek: the least productive and most accident-prone, and — by some accounts — the day of the week on which a job was most likely to be botched or mismanaged. Theories about why reflected common-sense notions about people being tired and unfocused after the weekend, and possibly reluctant to return to potentially dangerous or unrewarding jobs.

While Mondays are still few people’s favorites, one recent study suggests a surprising new candidate for the most dangerous day of the week — at least for certain types of accidents. According to data compiled by the U.S. Bureau of Labor Statistics and reported by NiceRx Health, Thursday is now the day on which the most occupational fatalities occur. The head and trunk were the most commonly affected body parts in these fatal incidents. Older workers — the 45-54 and 55-64 age groups — suffered the most fatal injuries, accounting for more than 42% of all workplace fatalities. Men accounted for over 90% of the on-the-job deaths, probably reflecting their disproportionate representation in dangerous industries like construction, manufacturing, and farming and ranching.

Why Thursday? No analysis accompanies the study, which is, after all, only one compilation of data. But a possible explanation is complacency. Nearing the end of the workweek, employees may find themselves preoccupied with plans for weekend recreation or socializing. According to this data, the second most dangerous day is Wednesday, followed by Monday and Tuesday (tied), and, surprisingly, Friday is the least dangerous day of the workweek. While this seems counterintuitive, perhaps workers are more energized and alert on Fridays.

August is the most dangerous month for on-the-job injuries. This is not so surprising, given the difficulties associated with working in the heat of summer — difficulties that seem likely to intensify in the future. In fact, the four most dangerous months in this regard are May, June, July and August, reflecting not only the dangers of working in the heat but also the increased amount of outdoor activity during these months. October falls in the middle, ranking as the seventh most dangerous month of the year.

Ranking on-the-job injuries by day is probably more valuable for discussion than for actual business decisions. The more important study is the one that employers need to make of their own workplaces, and the risks and particular reasons for injuries that may occur there. An accident can occur any day of the week. But so too can the realizations that help employers prevent them.

To view the full report by NiceRx, you may click here.

Survey Confirms Toll of Stress in the Workplace

Another recent study confirms stress is a prominent contributor to mental health issues for workers across all industries.

The 2022 Mind the Workplace Report by Mental Health America surveyed 11,300 employees across 17 industries in 2021 and found 78% of respondents agreed that their workplace stress affects their mental health.

Some 71% of respondents found it difficult to concentrate at work, compared to 65% in 2020 and 46% in 2018. More than half of respondents spent time looking for a new position, compared to 40% in 2018.

The survey also revealed 2 in 3 employees are not comfortable providing feedback to their manager about their performance, with more than half of employees saying they lack the ability to comfortably negotiate responsibilities or workload with their manager. Only a third of respondents said company leaders talk openly about mental health.

Other significant findings include:

  • Eighty percent agree that the stress from work affects their relationships with friends, family and co-workers.
  • Only 40% agree that their company invests in developing supportive managers.
  • Fifty-nine percent report that their manager cares about their personal well-being.
  • Fifty-eight percent disagree that their manager encourages them to take off time when needed.
  • Forty-seven percent know what mental health services they can use when struggling with a mental health concern, but only 38% would be comfortable using their company’s services for a mental health concern.

Mental Health America is a nonprofit dedicated to addressing the needs of those living with mental illness and to promoting overall mental health. It makes the following recommendations for employers:

  • Establish employee mental health and well-being as an organizational priority.
  • Invest in developing supportive and emotionally intelligent people managers.
  • Develop a process that allows employees to provide feedback to their manager as well as negotiate their titles, roles, responsibilities, salaries and workload.
  • Provide tailored mental health training that addresses both the employer’s and managers’ roles in promoting positive workplace mental health.

The full report is available here.

Building a Successful Return-to-Work Program

A successful return-to-work (RTW) program and post-injury outcome includes many facets. The National Council on Compensation Insurance (NCCI) says interviews with workers’ compensation insurers and employers have identified the following areas of agreement about what elements are needed for a successful RTW program:

  • Management commitment needs to be foundational within the employer’s culture. Communication of this commitment builds trust between employees and management.
  • Communication and the setting of clear expectations must occur both before and after an injury occurs.
  • Medical providers must understand occupational injuries and RTW programs.
  • A single source of contact at the employer should be used to coordinate the RTW program for the injured worker, insurer and medical providers.
  • Employers should maintain an inventory of light-duty or transitional tasks.

NCCI recently published examples of successful RTW components from an employer’s perspective. A health care system in the Colorado area with 26,000+ employees said partnerships are key to its RTW program. The health care system educates all stakeholders on the benefits of a RTW program and the need to understand how the workplace functions, its physical needs, demands and work environment.

After the injury, claims program managers educate the injured workers on the RTW program and communicate with the injured worker’s home department manager to identify if it can accommodate job restrictions. If the home department cannot accommodate the restrictions, the claims program manager works to identify modified-duty options elsewhere.

Department managers are advised to explain the company’s support for injured workers and how all contributions add value to discourage perceptions that the injured workers appear to “not be carrying their weight” or “have easier tasks and/or reduced schedules.”

Motivating injured workers to return to work requires advising them that:

  • The employer has established RTW policies, which it will enforce if restrictions can be accommodated.
  • The employer will fully support them and ensure restriction compliance.
  • The employee can attend injury-related medical appointments without losing pay or using paid time off.
  • Rules could potentially lead to the loss of benefits or having employment terminated if the injured worker does not return.

Addressing Workplace Violence

Workplace violence is increasing, and with it the need for constructive measures to reduce its impact.

OSHA defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” Industries that require contact with multiple people each day are most at risk of workplace violence. Health care is widely considered the most dangerous, accounting for roughly 45% of all incidents each year. Social services workers, law enforcement personnel, delivery workers, and customer service personnel also face a high risk of violence, as do those at potentially volatile or hazardous job sites, such as construction zones or late-night establishments.

The National Safety Council (NSC) has released a report on a wide range of technologies that can be used to prevent, mitigate and react to workplace violence. The report, Workplace Violence: Using Technology to Reduce Risk, also includes a workplace risk assessment tool, a checklist for creating a violence prevention plan, and guidance on which of these technologies will be most helpful based on the size and type of business.

Preventive measures include:

  • Access control through security gates and visitor passes.
  • Weapon detectors.
  • Social media screeners to identify threats to the company or employees.
  • Using virtual reality to train employees in lifelike hazardous situations.

Mitigation includes:

  • Video cameras for monitoring entrances, deterrence, and investigation of incidents.
  • Wearables and mobile apps for monitoring workers in remote areas or on overnight shifts.
  • Panic buttons that can discretely warn of physical danger.

Reaction includes:

  • Case management software to catch red-flag behavior and track investigations.
  • Digital floorplan mapping, used for charting escape routes and response planning.

The Centers for Disease Control and Prevention identifies four distinct types of workplace violence:

  • Criminal Intent: Robbery, assault, breaking and entering. This is common in the retail industry.
  • Customer/Client: Assault of an employee by a customer, often in health care, retail and social service jobs.
  • Worker-on-Worker: Verbal, emotional and physical abuse aimed at a co-worker.
  • Personal Relationship: A domestic violence victim harassed at work by a spouse.


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