U.S. Department of Labor Issues Warning About Nonsubscriber Injury Reporting Time Frame

U.S. Department of Labor Issues Warning About Nonsubscriber Injury Reporting Time Frames

The U.S. Department of Labor has warned that occupational injury welfare benefit plans with “overly restrictive” time requirements for workers to report injuries violate the Employee Retirement Income Security Act.

The DOL had investigated a Texas service provider that writes injury welfare benefit plans and several nonsubscribers who have implemented injury welfare benefit plans to see if the plans include a reasonable time frame for injured employees to make a claim. Although it decided not to take any action, the DOL concluded that short injury-reporting time frames violate ERISA because the penalty for lack of compliance is too severe.

According to the DOL, a short reporting requirement “ignores the reality that the severity of many injuries may only become clear in the hours and days following the injury.” DOL cautioned against denials where:

  • The seriousness of the injury becomes apparent only later.
  • The lack of notice within a short period of time has no impact on the plan’s ability to resolve the claim correctly.
  • Management had actual knowledge of the injury at the time.
  • The injury compromised the participant’s ability to give immediate notice.
  • The claimant otherwise provided notice on a reasonably timely basis under the circumstances.

The DOL further determined the plan’s good cause exception does not cure the plans’ deficiencies, either as written or administered, for several reasons, including:

  • Little or no guidance is given to participants regarding their ability to assert the exception, the types of factors relevant to the good cause determination, or how to successfully argue good cause.
  • Plan administrators do not apply the good cause exception “systematically or consistently.” In fact, few of the files the DOL reviewed “reflected any consideration of the application of the good cause exception.”
  • There do not appear to be established internal policies or procedures — or clear explanations of documentation of such policies or procedures — for the application of the good cause exception or the consistent review of claims to determine if the exception applies.

Donna Peavler, of the PeavlerBriscoe law firm, provides the following advice for nonsubscribers:

  • Stop denying claims based upon the failure to report an injury within the unreasonably short time periods provided in the plan, and disregard the current injury notice requirement in adjudicating claims. 
  • Review recent claims that were denied based on late reporting and analyze them under the plan’s good cause exception.
  • Modify unduly restrictive deadlines. Although the DOL did not establish a bright-line rule, it suggested that same-shift, same-day and even five-day deadlines are too short.
  • Ensure the plan has a well-defined good cause exception that defines the use, parameters and standards for meeting the exception, and standards for application of the exception.
  • Provide training to plan administrators regarding how to solicit compliance with, interpret and apply the plan’s good cause exception. 
  • Implement a system to effectively explain to claimants how the good cause exception can be satisfied in the event of late reporting.
  • Periodically review claims to ensure a disproportionate number of claims are not being denied based on late reporting. 
  • Ensure claim files contain all critical information needed to make good cause determinations.

If you have questions about your company’s injury reporting time frame or its good cause exception rule, you are encouraged to contact an ERISA attorney for guidance. 

Vaccine Mandate Headed to U.S. Supreme Court, Arguments Set for January 7

The U. S. Supreme Court will hold a special session on Jan. 7 to hear arguments on the Biden’s administration’s COVID vaccine requirements for large employer and its mandate for health care workers. The court was not scheduled to hear cases again until Jan. 10. 

The OSHA announcement follows a 2-1 ruling from a panel of judges on the conservative-leaning Sixth Circuit Court of Appeals in Cincinnati, Ohio, that dissolved a stay on the administration’s vaccine or test mandate for businesses with 100 or more employees. The Sixth Circuit ruling was immediately appealed to the Supreme Court by more than half the states and a coalition of business and religious groups. About 80 million workers are estimated to be affected by the mandate. 

Lower-court rulings to date have come down on both sides of the issue. In September, an Ohio federal judge held that a private employer near Cincinnati could require employees to get vaccinated or risk losing their jobs. In November, a federal judge in Texas ruled a United Airlines vaccine mandate for employees could continue, and the U.S. Supreme Court in December refused to block New York’s vaccine mandate for health care workers.

Meanwhile, lower courts have issued temporary stays against the Biden administration vaccine mandates in separate cases involving federal contractors and health care workers who work in facilities that receive Medicare or Medicaid funds. The Biden administration has asked the Supreme Court to overturn the decisions that blocked a vaccine mandate for health care workers in facilities that receive Medicare or Medicaid funds.

Occupational Fatalities Decline in Texas

The number of fatal occupational injuries in Texas dropped 23% in 2020 from the previous year, according to data from the Texas Department of Insurance, Division of Workers’ Compensation.

According to “The 2020 Census for Fatal Occupational Injuries,” there were 469 fatal occupational injuries in Texas in 2020, down from 608 in 2019. The 2020 number represents an incident rate of 3.9 per 100,000 full-time employees, slightly higher than the national incident rate of 3.4 per 100,000 full-time employees.

Private-sector employees represented 92% of the total fatalities in Texas, with 431 incidents in 2020 — down from 573 in 2019. The other 38 incidents involved public/governmental-sector employees — an increase of three from 2019.

The highest number of fatalities were reported in the construction industry, with 127 incidents, an increase of four fatalities from 2019. Fatalities in the transportation and warehousing industry decreased to 96, down from 137 incidents in 2019.

Among the service-providing industries in the private sector, transportation and warehousing had the highest number of incidents, at 96. Within transportation and warehousing, truck transportation accounted for 16% of all fatalities, with 73 fatalities.

The occupation with the highest number of fatalities was driver/sales workers and truck drivers, with 101 incidents, representing 22% of all fatal work injuries. This was a decrease of 41 incidents from 2019.

Of the 38 fatalities that involved government employees, 30 were employees in local government. Fourteen of those in local government were in police protection, up from 11 in 2019.

The full report is available here.

OSHA Extends Comment Period for Heat Injury Standard

The Occupational Safety and Health Administration (OSHA) has extended by a month the period for submitting comments on a proposal to create rules for regulating heat injury and illness prevention in work settings. Comments must now be submitted by Jan. 26.

OSHA currently does not have a heat-specific standard to protect workers in indoor and outdoor work settings from exposure to hazardous heat conditions. In recent months, OSHA has initiated several efforts to protect workers from heat-related illnesses and deaths while working in hazardously hot indoor and outdoor environments. In addition to pursuing a heat-specific workplace rule, OSHA instituted a heat-related enforcement initiative and plans to issue a National Emphasis Program for heat-related safety efforts in 2022.

OSHA began the process of considering a heat-specific workplace rule to address heat-related illnesses when it published an Advance Notice of Proposed Rulemaking (ANPRM) in October 2021. In the notice, OSHA says it is looking for more information about “the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness.” Additionally, OSHA says it wants input on heat-stress thresholds, heat-acclimatization planning and exposure monitoring.

Comments must be submitted electronically at www.regulations.gov in Docket No. OSHA-2021-0009.

Employer-Sponsored Health Insurance Costs Rise in 2021

The average per-employee cost of employer-sponsored health insurance jumped 6.3% in 2021 as employees and their families resumed care after avoiding it last year due to the pandemic, according to Mercer’s 2021 National Survey of Employer-Sponsored Health Plans, released today. With the highest annual increase since 2010, health benefit cost outpaced growth in inflation and workers’ earnings through September, raising the question of whether employers are seeing a temporary correction to the cost trend (following last year’s increase of just 3.4%) , or the start of a new period of higher cost growth.

Employers are projecting, on average, a fairly typical cost increase of 4.4% for the year ahead. 

Cost growth was sharper among smaller employers (50-499 employees), at 9.6%, while larger employers reported average cost growth of 5.0%. Smaller employers are more likely to offer fully insured health plans, suggesting that insurance carriers expected significantly higher costs in 2021 relative to 2020.

Additionally, spending on prescription drugs rose 7.4% in 2021 among large employers (those with 500 or more employees), driven by an increase in spending on specialty drugs of 11.1%.

When health benefit cost growth accelerates, employers typically ratchet up cost management efforts to keep increases at sustainable levels. However, one traditional cost management tool known as “cost shifting” — where employers shift a larger share of the cost of health services to plan members — seems to be off the table for many employers.

In fact, concerns about health care affordability for lower-wage workers, along with the need to retain and attract employees in a competitive labor market, have resulted in an unexpected reversal in some health plan cost-sharing trends. Most employers not only held off on raising deductibles and other cost-sharing provisions, but some even made changes to reduce employees’ out-of-pocket spending for health services. Among small employers (50-499 employees), the median deductible for individual coverage in a PPO dropped from $1,000 to $900 in 2021. Among large employers, the median individual deductible in an HSA-eligible plan dropped from $2,000 to $1,850 in 2021.

Nationally, 40% of all covered employees enrolled in a high-deductible consumer-directed plan in 2021, up from 38% in 2020. However, most large employers that offer a CDHP at their largest worksite (86%) also offer employees another medical plan choice with a lower deductible.

Additionally, large employers did not increase employee premium contributions significantly in 2021. The average monthly paycheck deduction rose by just $7 for employee-only coverage (from $160 to $167) and by just $12 for family coverage (from $590 to $602) in PPO plans, the most common type of medical coverage offered.

Benefit priorities have shifted in response to the pandemic’s impact on the workforce and an evolving benefits landscape. Many employers view supporting the mental, emotional and behavioral health of employees as a business imperative. Based on the survey results, adding or expanding programs to increase access to behavioral health care is a top-three priority for all large employers (74% rated it important or very important), and it is the No. 1 priority for employers with 20,000 or more employees (86% rated it important or very important).

The survey found that nearly half of all large employers — and about two-thirds of those with 20,000 or more employees — say that addressing health equity and the social determinants of health will be an important priority over the next three to five years.

Looking ahead to 2022, the majority of plan sponsors (60%) say they will not make plan changes of any type to reduce their expected cost increase. This is largely due to employers focusing their attention on enhancing benefits to support employees and stay competitive in a tight labor market, but the sharp cost increase suggests a need to prioritize how they will manage costs.

Employees seem more open to virtual care than ever before. With in-person health care severely limited during the worst of the pandemic, telemedicine clearly got a boost: Utilization rates had stagnated at 9% or less among large employers for many years; they jumped to 15% in 2020 and held at 12% during the first half of 2021.

Targeted health solutions that address specific health conditions such as diabetes or musculoskeletal disorders are now offered by 25% of all large employers, and another 20% are considering adding them. Such programs can save money for both the employer and the employee by substituting at-home care — for example, online physical therapy — for in-person visits. A virtual primary care physician (PCP) network or service is offered by 16% of large employers, with 10% considering. And 28% of all large employers (and 43% of those with 20,000 or more employees) offer a virtual behavioral health care network.

Tips to Protect Workers From Wintry Conditions

The onset of winter brings the threat of colder weather, slippery sidewalks and dangerous driving conditions. 

Cold temperatures and increased wind speed (wind chill) also cause heat to leave the body more quickly, putting workers who work in cold or wet conditions at risk. Common types of cold stress include hypothermia, frostbite and trench foot.

Hypothermia occurs when a person’s normal body temperature drops to 95°F or less. Mild symptoms include shivering. Moderate to severe symptoms include shivering stopping, confusion, slurred speech, slow heart rate/breathing, loss of consciousness and death. If a worker is experiencing moderate to severe hypothermia, call 911. To prevent further heat loss:

  • Move the worker to a warm place.
  • Change the worker to dry clothes.
  • Cover the body (including the head and neck) with blankets, and with something to block the cold (e.g., tarp, garbage bag). Do not cover the face.
  • If medical help is more than 30 minutes away, give warm, sweetened drinks if alert (no alcohol). Apply heat packs to the armpits, sides of chest, neck and groin. Call 911 for additional rewarming instructions.

Frostbite occurs when body tissues freeze, e.g., hands and feet. It can occur at temperatures above freezing due to wind chill. Symptoms include numbness as well as reddened skin that develops gray/white patches, feels firm/hard and may blister.

To help workers with frostbite, follow the same instructions as for hypothermia, but also observe the following precautions:

  • Do not rub the frostbitten area.
  • Avoid walking on frostbitten feet.
  • Do not apply snow/water. Do not break blisters.
  • Loosely cover and protect the area from contact.
  • Do not try to rewarm the area unless directed by medical personnel.

Trench foot is a nonfreezing injury to the foot caused by lengthy exposure to a wet and cold environment. It can occur in air temperatures as high as 60°F if feet are constantly wet. Symptoms include redness, swelling, numbness and blisters. To treat trench foot, remove wet shoes/socks, air dry (in a warm area), keep affected feet elevated, and avoid walking. Get medical attention.


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