TAN Monitoring Federal Bills Including Proposed Prohibition of Predispute Arbitration Agreements

TAN Monitoring Federal Bills Including Proposed Prohibition of Predispute Arbitration Agreements

Legislation has again been filed in the U.S. Congress that would prohibit the use of predispute arbitration agreements.

HR 697, designated as the “Justice for All Act of 2023,” was filed by Rep. Rashida Tlaib (D-Michigan) to preserve access to the federal court system for individuals who are victims of discrimination. The bill appears to target discriminatory actions involving law enforcement and access to public accommodations, among other areas, but also specifically references the use of “predispute arbitration agreements that force arbitration of future employment, consumer, or civil rights disputes …”

The legislation’s preamble states:

“The Federal Arbitration Act did not, and should not have been interpreted to, supplant or nullify the legislatively created rights and remedies that Congress, exercising its power under article I of the Constitution of the United States, has granted to the people of the United States for resolving disputes in State and Federal courts.”

Recent court decisions, including AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) and American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), have interpreted the Federal Arbitration Act to broadly preempt rights and remedies established under substantive State and Federal law. As a result, these decisions have enabled business entities to avoid or nullify legal duties created by congressional enactment, resulting in millions of people in the United States being unable to vindicate their rights in State and Federal courts.”

HR 697 would amend federal law by stating, “Notwithstanding any other provision of this title, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to an employment dispute, consumer dispute, or civil rights dispute.”

The legislation has 11 Democrat co-sponsors that include Rep. Greg Cesar (D-Austin) and Rep. Gene Green (D-Houston). It has been referred to both the Committee on the Judiciary and the Committee on Education and the Workforce.

The lack of bipartisan support for the measure and Republican control of the U.S. House of Representatives make passage of the bill unlikely, but TAN will continue to monitor any action taken due to its potentially adverse impact on nonsubscription policies that have arbitration clauses. To view the bill, you may click here.

TAN is also following HR 731, which would ban noncompete agreements. The bill is being referred to as the “Workforce Mobility Act of 2023.” The bill would amend federal law stating, “… Except as provided in subsection (b), no person shall enter into, enforce, or attempt to enforce a noncompete agreement with any individual who is employed by, or performs work under contract with, such person with respect to the activities of such person in or affecting commerce.”

The bill has been referred to the Committee on Energy and Commerce and the Committee on Education and Workforce. You may view the legislation here.

Long-COVID Symptoms Continue for Many

A recent study from the Workers Compensation Research Institute shows 7% of workers with COVID-19 claims received treatment for long COVID-19 after the acute period of the infection. Long-COVID prevalence was highest among workers who were hospitalized during an acute stage of the disease; however, some workers with limited medical care early after the infection also developed long-COVID symptoms.

According to the study, long-COVID claims had higher average medical payments, higher average indemnity payments, and higher average durations of temporary disability than COVID-19 claims without long COVID.

Average medical costs for hospitalized workers with long COVID were $50,000, and more than $150,000 for workers requiring ICU care. The average medical claim for long COVID was more than $25,000, compared to $3,000 for the average claim without long COVID.

One in five of all claims (20%) with medical care included care for long-COVID symptoms. One in three of all claims (33%) with both medical care and indemnity benefits included care for long-COVID symptoms.

Long-COVID symptoms can last from weeks to years after infection. Common symptoms include tiredness or fatigue that interferes with daily life, and symptoms that get worse after physical or mental effort (also known as post-exertional malaise); fever, respiratory and heart symptoms; difficulty breathing or shortness of breath, cough, or chest pain; heart palpitations; difficulty thinking or concentrating; headaches; sleep problems; lightheadedness; depression or anxiety; and joint or muscle pain.

The study, Long COVID in the Workers’ Compensation System Early in the Pandemic, examined the prevalence of long COVID among COVID-19 workers’ compensation claims with infections that occurred in the first months of the pandemic. Information about how to purchase the study is available here.

Study Suggests Paid Sick Leave Provides Net Benefits for Businesses

Workers with access to paid sick leave suffer fewer occupational injuries, and reduce the spread of contagious disease, presenteeism, and the likelihood of employee death on the job site, according to new research published in the American Journal of Industrial Medicine.

Researchers from Cleveland State University and Florida Atlantic University systematically reviewed 22 years of research examining the relationship between paid sick leave benefits and short-term and long-term U.S. business outcomes for their study. In the study, researchers found more evidence that paid sick leave was related to favorable business conditions, such as employee morale and job satisfaction, improved retention, and higher profitability, than there was evidence supporting negative business consequences, such as worker absence.

Researchers took into consideration factors such as business size, industry, and whether paid sick leave was required due to a legislative mandate. For the study, researchers reviewed the relationship between paid sick leave and job satisfaction, morale, job commitment, turnover, retention, employee health and safety, occupational injury, presenteeism, absence from work, labor market effects, profitability, productivity, and performance.

According to the study, 14 states have enacted paid sick leave mandates, while 18 states passed preemptive legislation prohibiting paid sick leave laws — largely due to concerns about potential negative impacts this may have on business.

Absence from work was the most commonly reported unfavorable outcome of paid sick leave for business, yet findings from the study illuminated the value of having employees stay home when sick.

According to the latest study, most of the earlier studies that identified an increase in work absence associated with paid sick leave also reported a decrease in presenteeism — that is, lost productivity when employees are not fully effective in their workplace due to illness, injury or other conditions.

Researchers also found evidence suggesting paid sick leave was associated with a lower spread of disease, not only for the workers themselves but for the entire region in which paid sick leave mandates were passed.

The study is available here.

Cigarette Smoking and Its Toll on Individuals and the Workplace

Cigarette smoking is the No. 1 cause of preventable death in the United States, and a significant contributor to higher workplace injury costs. The Centers for Disease Control and Prevention estimates nearly 70% of American adult cigarette smokers want to stop smoking, and 55% have attempted to quit smoking within the past year.

A 2013 study by the National Institute for Occupational Safety and Health estimated that the average annual cost to employ a smoker was nearly $6,000 greater than the cost to employ a nonsmoker when factoring costs such as the need for more medical care, lost productivity, and more costly workers’ compensation claims. Cigarette smoking damages blood vessels and decreases oxygen levels in blood, prolonging the time it takes for wounds to heal. Additionally, smoking degrades bone density, putting smokers at higher risk for fractures and slower healing. It can also negatively interact with several medications commonly prescribed in workers’ compensation.

Although smoking rates are decreasing in the United States, the U.S. Centers for Disease Control and Prevention estimated 40 million Americans smoked cigarettes in 2020, the most recent year for which statistics are available. That represents 12.5% of the U.S. population 18 years and older. Those numbers are down from 2019, when 14% of the adult American population smoked.

There are ways employers can help workers quit smoking, and lower costs. The American Cancer Society says tobacco cessation is one of the most cost-effective measures to reduce health care costs and increase productivity in the workplace. It suggests doing the following:

  • Provide coverage for smoking cessation counseling.
  • Provide coverage for pharmaceutical aides.
  • Financially support multiple quit attempts by the smoker, if necessary.
  • Offer smoking cessation information and literature through a year-round communications plan.
  • Provide employee incentives to stop smoking.
  • Provide initiatives or incentives to encourage physician referrals to cessation services.
  • Assist physicians in systematically linking to smoking quit lines.

One-Third of Workers Say Their Economic Status Impacting Sleep, Work

Three in 10 American workers surveyed recently said the current economic environment is affecting their sleep, and nearly a quarter of those surveyed report feeling distracted at work.

This study was conducted by The Harris Poll on behalf of Franklin Templeton from Oct. 17 to Oct. 27, 2022, among 1,000 employed U.S. adults. All respondents had some form of retirement savings.

Some 42% of respondents said they are highly stressed by their financial health, up from 35% last year. Seven in 10 (71%) said that it matters to them that their employer address the current economic climate.

In other significant findings, 61% of respondents feel their retirement savings are in jeopardy and now plan to retire at 65 instead of 62. Additionally, 73% of employees report that increased costs have changed the way they envision their retirement, with 58% saying they now plan to work in some fashion during their retirement, an increase of 6% from two years ago.

Two out of three workers (66%) said they want to stay put with their current employer, and 89% of workers said that they are likely to stay at their current job in the next 12 months. The survey also found evidence of the “Great Return,” as 37% of individuals who had left jobs said they were considering going back to their prior employer, and 47% said one of their colleagues came back to a job they had left in the past five years.

More information about the survey is available here.

DOL Audit Critical of OSHA Handling of Complaints

An audit from the Department of Labor’s Office of Inspector General says OSHA failed on multiple occasions in 2019 and 2020 to ensure complaints and referrals were properly addressed, and that the safety agency did not regularly enforce hazard abatement timelines.

Auditors examined 100 complaint and referral cases that were opened and closed between fiscal years 2019 and 2020. According to the audit, OSHA spoke to the complainant in 38 of 76 sampled complaints. Additionally, it found 11 case files that didn’t clearly explain why an inspection wasn’t conducted, despite the complaint or referral meeting OSHA’s criteria for inspection.

The audit calls on OSHA to do the following:

  • Conduct mandatory interviews of complainants and witnesses or document the rationale for lack thereof.
  • Require documented case file reviews and approvals by supervisors, and train inspectors to ensure complete documentation of significant decisions and actions.

An OSHA administrator disagreed with the audit’s recommendations, saying the audit is based on a small sample of complaints and referrals. He said OSHA could do better communicating with complainants, but said sometimes it is more important to identify and obtain information from witnesses that will advance the investigation.

He added that 10 of the 11 sampled cases that didn’t have an ensuing inspection were nonformal complaints or referrals. He said the audit did not reveal any evidence that a documentation issue resulted in a hazard not being addressed.

The audit report is available here.


Massachusetts Institute of Technology
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FDA Authorizes First Over-the-Counter At-Home Test to Detect Both Influenza and COVID-19 Viruses
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NBC News
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NBC News
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Scientific American
5 Things We’ve Learned from COVID in Three Years
Three years ago, on March 11, 2020, Tedros Adhanom Ghebreyesus, director general of the World Health Organization (WHO), announced that the coronavirus that causes COVID was spreading worldwide and that the outbreak was officially a pandemic. At the time, there were more than 118,000 confirmed cases of COVID and 4,291 official deaths. Click here for full article.

Texas News

Texas Department of Insurance
Information for Workers’ Compensation Non-subscribers
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Texas Department of Insurance
Are Employers Required to Have Workers’ Compensation Insurance in Texas?
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State News

Yahoo! News
Appeals Court Rules Medical Marijuana Covered Under Workers’ Compensation
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Inflation and Workers Compensation Medical Costs – Prescription Drugs
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Business Insurance
Rising Medical Costs, Long COVID Raise Comp Concerns
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Business Insurance
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Best Workers Compensation Insurance Of March 2023
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Average Workers’ Comp Settlement For A Back Injury
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Insurance Business of America
Duo Sentenced for $54m Workers’ comp Insurance Fraud Scheme
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U.S. News & World Report
Best Workers’ Compensation Insurance Companies of 2023
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Insurance Business Amerca
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2023 Marks Critical Milestone for Workers Compensation
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Safety + Health
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