Federal COVID-19 Vaccination Mandate Blocked for Now

TAN Elects Officers for 2021-2022

Mitzi Tally, executive vice president at the Dallas Market Center, and Daryl Wigington, vice president of risk management for Ben E. Keith, have been elected co-chairs of the Texas Alliance of Nonsubscribers Board of Directors. Mark Lawrence, director of risk management and safety for Brookshire Grocery, was elected secretary. Each will serve for the 2021-2022 term.

Federal COVID-19 Vaccination Mandate Blocked for Now

The Biden administration’s plan to force businesses and organizations to require employees be vaccinated against COVID-19 or else submit to weekly testing has been temporarily blocked by a federal court of appeals, causing the American Medical Association and more than 60 other health care associations to call on employers to voluntarily implement the mandate. Many have done so.

A three-judge panel of the 5th Circuit Court of Appeals in New Orleans on Nov. 12 said a rule by the Occupational Safety and Health Administration (OSHA) demanding employers order the vaccines or testing to keep workplaces safe was “fatally flawed” and “staggeringly overbroad.” The panel ordered the rule be put on hold until the case could be decided. The case has since been reassigned to another federal court of appeals in Ohio.

Many observers expect the case will end up before the U.S. Supreme Court, which to date has declined to block other vaccine mandates brought before it since the start of the pandemic.

Business groups, including the U.S. Chamber of Commerce and the Business Roundtable, have given general support for the mandates. However, retailers have voiced opposition to mandates, saying many employers cannot fill the vacancies they currently have, let alone any additional vacancies that would arise if workers refused to be vaccinated or submit to testing.

OSHA had set Jan. 4 as the deadline for qualifying private employers to start mandating the vaccine or requiring weekly testing.

The health care organizations urged employers to implement their own mandate, saying the nation has no time to waste ahead of the busy holiday season.

“To overcome COVID and the highly transmissible Delta variant, and return to ‘normal,’ we need to substantially increase the vaccination rate from its current level of under 60 percent,” the organizations said in a statement. “We need to vaccinate about another quarter of the American population, roughly 80 million more people.”

The statement says employer mandates are effective. “When employers require workers to get vaccinated, vaccination rates increase to over 90 percent. This is especially true for people who intended to get vaccinated but have just delayed or procrastinated. Courts have repeatedly supported the legality of employer mandates.”

Texas Nonfatal Injuries Down in 2020, Serious Injuries and Illnesses Up

Private industry employers in Texas reported slightly fewer nonfatal workplace injuries and illnesses in 2020, however, the number of injuries and illnesses serious enough to require days away from work (DAFW) jumped significantly, according to a report from the Texas Department of Insurance, Division of Workers’ Compensation.

Private industry employers in Texas reported 178,600 nonfatal workplace injuries and illnesses in 2020, compared to 187,600 in 2019. However, the number requiring days away from work increased to 68,750 in 2020, compared to 49,840 in 2019.

The report, “2020 Rates of Texas Work-Related Injuries and Illnesses Requiring Days Away from Work,” includes the most recent available data from the U.S. Department of Labor, Bureau of Labor Statistics’ (BLS), Survey of Occupational Injuries and Illnesses (SOII).

Overall, the incidence rate for cases requiring days away from work was 78.1 per 10,000 full-time employees, according to estimates from SOII. The median DAFW for private industry employers was 13 in 2020.

According to the report, goods-producing industries reported 13,180 days-away-from-work cases, an incidence rate of 67.5 per 10,000 FTEs. The median days away from work was 13 days. Service-providing industries reported 55,570 days-away-from-work cases, or 81.2 per 10,000 FTEs. The median days away from work was 13 days.

Health care practitioners and technical had the largest incident rate at 201.3 per 10,000 FTEs.

Nationally, the number of private-sector nonfatal work-related injuries and illnesses decreased in 2020, however, the number requiring days away from work soared by nearly a third amid the COVID-19 pandemic, according to the Bureau of Labor Statistics.

Workers in private industry across the country experienced an estimated 2.7 million nonfatal injuries and illnesses in 2020 — down from 2.8 million the previous year. However, BLS reports an estimated 1,176,340 nonfatal injuries and illnesses that resulted in days away from work — a 32.4% increase from 2019.

The Texas report, “2020 Rates of Texas Work-Related Injuries and Illnesses Requiring Days Away from Work,” is available here.

OSHA Releases Most Cited Safety Violations for Year

The fall protection standard remains the most frequently cited safety violation by the Occupational Safety and Health Administration (OSHA), which recently announced its preliminary “Top 10” most frequently cited workplace safety standards for fiscal year 2021. It is the 11th year in a row the fall protection standard was most frequently cited.

OSHA recorded 5,295 violations to the fall protection standard, followed by respiratory protection with 2,557 violations, and the ladders standard with 2,026 violations.

The rest of the “Top 10” most frequently cited workplace safety standards for FY 2021 are:

  • Scaffolding, 1,948 violations.
  • Hazard communication, 1,947 violations.
  • Lockout/tagout, 1,698 violations.
  • Fall protection — training requirements, 1,666 violations.
  • Personal protective and lifesaving equipment — eye and face protection, 1,452 violations.
  • Powered industrial trucks, 1,420 violations.
  • Machine guarding, 1,113 violations.

Medical Necessity Disputes Fall in State WC System

The number of medical necessity disputes involving workers’ compensation claims in Texas continues to fall, according to a report from the Workers’ Compensation Research & Evaluation Group of the Texas Department of Insurance, Division of Workers’ Compensation.

Medical necessity disputes have declined significantly since the 2005 legislative reforms. According to the report, “Medical Necessity Dispute Resolution Trends 2014-2020,” health care providers and injured employees filed a total of 13,210 medical necessity disputes between January 2014 and December 2020. DWC received 2,826 medical disputes in 2014. By 2020, that number fell to 1,357 (a reduction of about 52%).

The report attributes the reduction to several factors, including fewer workers’ compensation claims filed, the adoption of health care networks in 2006, and DWC’s adoption of evidence-based treatment guidelines in 2007.

About 80% of the disputes filed between 2014 and 2020 involved non-network claims, and more than 90% of the medical necessity disputes were associated with preauthorization denials.

As part of the 2001 and 2005 legislative reforms, the Texas Legislature required the use of evidence-based treatment guidelines by health care providers and insurance carriers to provide guidance on what medical services were appropriate for specific work-related injuries. As a result, most medical necessity disputes resulted in decisions that upheld the insurance carrier’s utilization review denial. In 2020, about 70% of disputes involving network claims and 79% of disputes involving non-network claims upheld the insurance carrier’s utilization review decision.

Preauthorization and concurrent review disputes were resolved in an average of 18-20 days.

The full report is available here.

Unusual Flu Season Possible This Winter

After a winter that saw very few cases of the flu, experts say this year’s outbreak could be severe.

The precautions taken against COVID-19 — masking, social distancing and regular handwashing — greatly limited the spread of the flu virus during the past two years. According to the Centers for Disease Control, there were fewer than 2,000 reported cases of flu in the U.S. during the 2020-2021 flu season, compared to an estimated 39 million the year before.

As a result, far fewer Americans now have immunity from past exposure. With many communities relaxing COVID-19 precautions, children returning to school, restaurants and entertainment venues reopening, and people traveling in large numbers again, there is concern the flu will make a comeback.

While any employee can get the flu, those at highest risk of serious complications include pregnant women, people with health conditions like asthma, diabetes, or heart and lung disease, and people 65 years and older.

The common symptoms of flu are fever, runny or stuffy nose, body aches, cough and sore throat. Because COVID-19 shares many of these symptoms, the only way to know which illness a sick employee has is to be tested for both. It is possible to have the flu and COVID-19 at the same time.

Encouraging employees to get the flu shot can not only reduce illness, but can also have a positive financial impact on employers. A 2010 study cited by the Washington State Department of Health found that an employer could save up to $95 annually for each employee vaccinated against the flu. The study compared the cost of providing the flu vaccine to employees against the lost productivity and work hours from having employees out sick.

While many businesses are already understaffed and may fear losing work hours to sick leave, the flu can be passed quickly from one employee to another, making the staffing shortage even worse. Employers can consider these measures to control spread of the flu and limit employee sick days:

  • Recommend that all employees get this year’s flu vaccine as soon as possible. Remind them that the flu shot is different from the COVID-19 vaccine, that it does not protect against COVID-19, nor does it increase the risk of getting COVID-19. It is important to get vaccinated against both illnesses.
  • Continue the COVID-19 precautions already in place. They will help limit the transmission of the virus at the job site. This includes making hand sanitizer readily available; masking where appropriate; encouraging employees to cover their mouth with their hand, a tissue or their sleeve when they cough or sneeze; and to wash or sanitize their hands immediately afterward.
  • Where possible, limit how much employees share desks, phones, computers, work tools and other equipment. Make disinfectant sprays available for cleaning common areas and equipment.
  • Tell employees to stay home if they feel sick, particularly if they are running a fever. They should stay home for at least 24 hours after their fever is gone and it is no longer necessary to use a fever-reducing medicine.
  • Remind employees who are parents of school-aged children that kids can transmit the flu virus much longer than adults after picking it up, and to use the same precautions at home that they do at work.

Poll Shows Voters’ Early Preferences in State’s Top Races, Other Issues

A recent poll of Texas registered voters shows Gov. Greg Abbott with a nine-point lead over challenger Beto O’Rourke in the race for governor. According to the poll from The University of Texas at Austin and The Texas Tribune, Abbott is favored by 46% of the respondents, compared to 37% who said they support O’Rourke.

The poll also shows Republican incumbents easily leading challengers in their Republican primaries, although more than one in four respondents says they have not yet formed an opinion. Attorney General Ken Paxton, who faces the most formidable lineup of challengers, received the support of 48% of primary voters in the poll, compared to Land Commissioner George P. Bush at 16%. All other candidates received fewer than 10%.

The survey of 1,200 registered voters was conducted online from Oct. 22-31 and has a margin of error of 2.83 points.

Other notable findings include:

  • Some 34% of respondents believe the state’s voting rules should be tougher, while 29% believe they should be less strict. Another 29% believe the rules should remain unchanged.
  • Slightly more than half (53%) said they don’t think the state’s “election system discriminates against racial and ethnic minorities.” Some 37% said they believe it does.
  • Just 18% of respondents said they approved of the state’s response to the massive winter storm that left millions in Texas without power. Sixty percent disapproved of the state’s response.
  • The state’s law banning abortions after about six weeks was opposed by 47% of voters and supported by 45%. Some 57% of voters oppose allowing private citizens to sue anyone they believe helped provide an abortion. Only 30% of respondents approved.
  • More than half — 55% — opposed the state’s permitless carry law, while 38% said they supported it.
  • On COVID-19 issues, 57% of voters support mask requirements in indoor public spaces based on local conditions, while 40% oppose them. Additionally, 58% support mask requirements for students and staff in public schools, compared to 39% who oppose the requirements.
  • Fifty-four percent of Texas voters said businesses should be allowed to require employees to provide proof of vaccination or submit to frequent COVID-19 tests, compared to 43% who are opposed. Additionally, 54% support allowing public schools to require staff either to provide proof of vaccination or submit to frequent testing. Forty-three percent oppose. Poll respondents are nearly evenly divided on requiring students to adhere to the same measures, with 49% in opposition and 48% in favor.

More detailed information about the poll is available here.

OSHA to Create Heat Injury Prevention Standard

The U.S. Occupational Safety and Health Administration (OSHA) has initiated the rulemaking process to create a heat injury and illness prevention standard for indoor and outdoor work settings.

OSHA published a notice of proposed rulemaking on Oct. 27 that begins a period to solicit comment on topics such as heat stress thresholds, heat acclimatization planning and exposure monitoring. Comments are due Dec. 27.

OSHA currently does not have a specific standard for hazardous heat conditions, although employers are required under the General Duty Clause of the Occupational Safety and Health Act to provide workers a safe work environment.

The new standard would be in addition to actions OSHA has already begun. The agency recently implemented an enforcement initiative on heat-related hazards and is developing a National Emphasis Program on heat inspections.

Through the enforcement initiative, OSHA will prioritize heat-related interventions and workplace inspections on days when the heat index exceeds 80°F. On these days, OSHA area directors will dedicate additional resources to respond to heat-related complaints and expand the scope of programmed and unprogrammed inspections to address heat-related hazards.

During heat-related inspections, OSHA inspectors will identify conditions and activities relevant to heat-related hazards, including, but not limited to:

  • Potential sources of heat-related illnesses, such as working in direct sunlight, a hot vehicle, or areas with hot air, or near a gas engine, a furnace, a boiler or steam lines.
  • WetBulb Globe Temperature calculations, a formula used by the National Weather Service to measure the heat stress in direct sunlight, which considers temperature, humidity, wind speed, sun angle and cloud cover (solar radiation); other temperature measurements; and any weather service heat advisories, warnings or alerts.
  • The use of heavy or bulky clothing or equipment.
  • The types of activities performed by the employees and whether those activities can be categorized as moderate, heavy or very heavy work, as well as the length of time a worker is continuously or repeatedly performing moderate to strenuous activities.
  • Heat-related illnesses among new workers, as well as any recent vacation time or breaks in employment before complaints of heat-related symptoms.
  • The availability of rest breaks, shade and water on-site.


The Atlantic
The Pandemic’s Next Turn Hinges on Three Unknowns
Winter has a way of bringing out the worst of the coronavirus. Last year, the season saw a record surge that left nearly 250,000 Americans dead and hospitals overwhelmed around the country. This year, we are much better prepared, with effective vaccines—and, soon, powerful antivirals—that defang the coronavirus, but cases seem to be on the rise again, prompting fears of another big surge. Click here for full article. 

The Washington Post
Health Care Groups Urge Businesses to Adopt Biden Vaccine Rule
More than 60 health care associations, including the American Medical Association, the American Academy of Pediatrics, the American College of Surgeons and the National League for Nursing, are calling on businesses to voluntarily implement President Biden’s contested vaccine-or-testing mandate. Click here for full article.

USA Today
Over Half of Employees Would Report a Coworker for Violating Vaccine Mandates, Study Says
Most employees favor President Joe Biden’s efforts to mandate COVID-19 vaccines for employees at large companies, and many workers would consider reporting a co-worker for violating the vaccine rules, a new study suggests. Click here for full article.

Safety + Health
Workers Want Clear Communication, Enforcement of COVID-19 Safety Measures: Survey
Almost three-quarters of U.S. employees are concerned about workplace safety standards and cleanliness as a protection against COVID-19, according to the results of a recent survey. Click here for full article.

Filing Whistleblower Complaints Related to COVID-19
Employees are protected from retaliation for raising workplace health and safety concerns relating to COVID-19, reporting cases of the illness to their employers under the Occupational Safety and Health Act, and engaging in certain other activities related to COVID-19. Click here for full article.

Safety + Health
Burned Out at Work? You’re Not Alone, Survey Finds
More than half of U.S. workers say they’re burned out and around 2 out of 5 are considering a job change “to resolve stress,” results of a recent survey show. Commissioned by Talkspace, an online behavioral health care company, researchers from the Harris Poll in September surveyed nearly 2,100 adults from around the country to learn about employee attitudes toward mental well-being and work. Of the respondents who said they’re thinking about changing jobs, 67% indicated that their employer hasn’t followed through on promises to focus on mental health during the COVID-19 pandemic. Click here for full article.

Unvaccinated Texans 45x More Likely To Test Positive For COVID, 40x More Likely To Die, According To New Health Department Study
Unvaccinated Texans died from COVID-19 at 40 times the rate of vaccinated Texans and were 45 times more likely to test positive for the disease in 2021, according to a new study from the Texas Department of State Health Services. DSHS reviewed vaccination, death and tests records from Jan. 15 to Oct. 1 to come up with the figures. Click here for full article.

Yahoo! News
New Poll Shows Americans Who Trust Conservative Media Outlets More Likely To Believe COVID-19 Misinformation
A new poll has found that Americans who consume more right-wing media are far more likely to believe misinformation about COVID-19 and the vaccine against it. Click here for full article.

All The Science You Need To Make Your COVID-19 Decisions
If there’s one thing we’ve learned since March 2020, it’s that pandemics are all about hard decisions. It’s hard to keep track of the information that helps us make those choices — let alone notice or remember when new science and expert recommendations come along. Click here for full article.

Insurance Journal
Report: California Workers’ Comp Covid Claim Volume Trending Down After Summer Surge
The summer surge of COVID-19 claims that hit the California workers’ compensation system in July and August appears to have run its course, according to the California Workers’ Compensation Institute. Click here for full article.

Property Casualty 360
What Does Workers’ Comp Look Like for Remote Employees?
The COVID-19 pandemic has forever changed the way millions of people work. Even though vaccines are being administered and extra precautions are being made to keep businesses open and safe, the work-from-home trend is unlikely to end. In fact, Upwork estimates that 22% of the workforce (36.2 million Americans) will work remotely by 2025. Click here for full article.

State News

S&P Global
California Approves Significant Workers’ Comp Insurance Rate Cuts in Q3
California signed off on the most significant workers’ compensation rate reductions approved across the U.S. in the third quarter. Click here for full article. 

Florida CFO: 7 Arrested in $40 Million Workers’ Compensation Fraud Scheme
Florida Chief Financial Officer Jimmy Patronis announced Monday that seven people had been arrested in a workers’ compensation fraud bust. Click here for full article.

Florida Politics
Insurance Commissioner Orders 4.9% Cut in Workers’ Comp Rates Effective Jan. 1
Florida Insurance Commissioner David Altmaier on Friday approved an average 4.9% rate reduction in workers’ compensation costs effective Jan. 1, the office said in a prepared release. Click here for full article.

Insurance Journal
Florida Posts New Workers’ Comp Doctor Reimbursement, But Lawmakers Must Review
The Florida Division of Workers’ Compensation has adopted a new reimbursement manual, governing fee schedules and payments to doctors and other health care providers. Click here for full article.

JD Supra
“Idiopathic” Defense To Workers’ Comp Claims Is Still Viable In Georgia, Court Rules
The “idiopathic defense” to workers’ compensation claims is still a viable one, according to a recent decision from the Georgia Court of Appeals. Click here for full article.

Insurance Journal
Idaho Lawmakers Advancing Vaccine Workers’ Comp Legislation
A bill making it easier for Idaho residents to get workers’ compensation if they become ill after taking an employee-mandated vaccine sailed through the House and headed for the Senate this week. Click here for full article.

Insurance Journal
7.7% Workers’ Comp Decrease Recommended in Missouri
The Missouri Department of Commerce and Insurance is recommending a 7.7 percent decrease in workers’ compensation insurance loss costs for 2022. This marks the largest overall decrease since 2009. Click here for full article.

Pittsburgh City Paper
Pa. Supreme Court Says Worker was Still on Job, Even at Work-sponsored Happy Hour
A recent ruling by the Pennsylvania Supreme Court said a traveling salesperson for corporate apparel company Cintas Corporation was still eligible for workers compensation after he was injured in a car crash following a work-sponsored happy hour at the Tilted Kilt restaurant in Allentown, Pa. in 2015. Click here for full article.

Insurance Journal
Wisconsin Medical Payments per Workers’ Comp Claim Among Highest in Study
A recent study by the Workers Compensation Research Institute found that medical payments per claim with more than seven days of lost time in Wisconsin were among the highest of 18 states studied and changed little from 2014 to 2019. Click here for full article.

Industry News

The Good Men Project
7 Key Things Every Injured Employee Should Know About Workers’ Compensation
No matter what industry you work in or how safe your workplace appears to be, you are always at risk of suffering a work-related injury. After getting injured on the job, you will probably need money to pay for your medical expenses. Click here for full article. 

Claims Journal
Marijuana Waxes as Opioids Wane in Workers’ Comp
Workers’ compensation insurers have slashed spending on opioids, reducing the risk of addiction and delayed recovery, but now they are under increasing pressure to reimburse injured workers for a new kind of elixir. Click here for full article.

The Long Predicted Gray Tsunami Has Arrived – As Regulators Suffer Most
For years experts have been talking about the “gray tsunami” that threatened the workers’ compensation industry. The crushing wave said to be coming was not one of earth temblors and overwhelming waves, but rather a current of retirement from an aging and long-entrenched workforce. And in the aftermath of Covid and the “great resignation” now underway in America, it appears the devastating force of the long-predicted event is now washing up on our shores. Click here for full article.

Business Wire
Best’s Market Segment Report: AM Best Revises Outlook to Stable for U.S. Workers’ Compensation Insurance Industry
AM Best has revised its market segment outlook to stable from negative for the U.S. workers’ compensation insurance market, according to a new AM Best report. Click here for full article.

Safety + Health
Bill Would Direct OSHA to Send News of Citations to Local Media
Legislation introduced Oct. 20 by House and Senate Democrats would direct OSHA to publicize major workplace safety violations by widely distributing the news to local media outlets and other groups. Click here for full article.