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How Tracking Near Misses, Employee Training Reduces Injuries

Business woman gives safety presentation at office. Multi-ethnic group of professionals.

The latest trend in workplace safety best practices is tracking “leading indicators” – or events that take the lessons learned from past events – to reduce the chances of future injuries.

Safety professionals are increasingly keeping track of near misses, hours spent on training and facility housekeeping and measuring the impact on the organization’s overall safety record. And they are finding that this approach is having a significant impact in preventing injuries.

The trend is a new one. For years, workplace safety managers and industrial safety engineers used lagging indicators to track and manage workplace injuries and illness. They would evaluate:

  • Injury rates
  • Injury counts, and
  • Days injury-free

 

The major drawback to only using lagging indicators of safety performance is that they tell you how many people got hurt and how badly, but not how well your company is doing at preventing incidents and accidents.

In the last few years, safety-minded companies have been shifting their focus to using leading indicators to drive continuous improvement. Lagging indicators measure failure, but leading indicators measure performance – and that’s what we’re all after.

And even if you don’t have dedicated safety professionals on your staff, your organization can learn from what its larger counterparts are doing. Surveys like a recent one of safety professionals by the online news site EHS Today can be valuable to even small firms.

EHS Today surveyed about 1,000 environmental, health and safety professionals about which leading indicators they are tracking the most. The top 10 are:

  1. Near misses
  2. Employee audits/observations
  3. Participation in safety training
  4. Inspections and their results
  5. Participation in safety meetings
  6. Facility housekeeping
  7. Participation in safety committees
  8. Overall employee engagement in safety
  9. Safety action plans execution
  10. Equipment/machinery maintenance

 

 

As you can see, a leading indicator is a measure preceding or indicating a future event that you can use to drive activities or the use of safety devices to prevent and control injuries.

Leading indicators are focused on future safety performance and continuous improvement. These measures are proactive in nature and report what employees are doing on a regular basis to prevent injuries.

Used correctly, leading indicators should:

  • Allow you to see small improvements in performance
  • Measure the positive: what people are doing versus failing to do
  • Enable frequent feedback to all stakeholders
  • Be credible to performers
  • Be predictive
  • Increase constructive problem-solving around safety
  • Make it clear what needs to be done to get better
  • Track impact versus intention

 

Creating a leading indicator

To design a leading indicator, you need a framework that takes into account the near-term, mid-term and long-term objectives that will lead you to your goal.

Suppose you want to reduce strain injuries in your printing plant. You might want to start by identifying the factors that lead to these injuries.

Ergonomics is an obvious factor, but you could get more granular or more general in your consideration. Loads, repetitions and workstation design might be factors at the individual level, while work procedures, the pace of work, and safety culture might be important factors at the operational or corporate levels.

You can track the data to see which areas are likely to cause future strain injuries. And once you do that, you have a model for how the injuries occur. At that point you can consider what type of interventions you may want to implement to prevent future strain injuries.

 

When Safety Shortcuts Become a Criminal Act

Businessman in prison. Financial crime concept.

As the economy grows and companies’ operations are busier, workplace injuries also increase. And as companies add employees, they may fail to keep up their safety regimens, which can result in an uptick in workplace injuries.

Some businesses have so much to keep track of that they may be negligent in enforcing their safety standards and making sure that all of their safety devices are in proper operating order.

When an employee is injured due to an employer’s negligence in keeping up its safety practices, there is typically no right of action for the employee under the exclusive remedy bargain that’s implicit in all workers’ comp agreements.

In that bargain, the employee trades the ability to sue the employer for the right to receive benefits and medical care to treat the injury.

But there is a point where employer negligence spills over into a criminal issue and owners risk incarceration for flagrant violations that put employees at risk.

And during the last few years OSHA has been stepping up criminal prosecutions of employers whose actions were more than just negligent.

While criminal penalties under the federal Occupational Safety and Health Act are fairly limited, with imprisonment capped at six months and fines capped at $10,000, the fines are stiffer for willful violations that cause loss of human life, with maximum fines of $250,000 for an individual and $500,000 for an organization.

If an employer’s willful violation of an OSHA standard causes the death of an employee it is not a felony, but a “Class B” misdemeanor.

And although the act carries with it the possibility of a prison term, in practice, prison occurs only in the rare circumstances where a senior management official operates de facto as the company. Otherwise, practically, only criminal monetary fines are applied for criminal violations.

Historically, there have been few prosecutions. There have been fewer than 80 OSH Act criminal cases resulting from the more than 400,000 workplace deaths that took place since the law was enacted. That’s fewer than two a year, and only 14 have resulted in criminal convictions.

Also, it’s challenging to prove a criminal violation under the OSH Act.

But in 2016, the Department of Justice (DOJ) started encouraging all United States Attorneys to charge employers for other violations that occur in connection with OSH Act violations, such as obstruction of justice, making false statements, witness tampering and conspiracy.

 

U.S. Attorneys were also encouraged to consider environmental crimes, which often occur in concurrence with worker safety violations. These offenses carry more significant periods of incarceration and fines.

 

Conviction examples

Two noteworthy examples of this wider implementation of the law are:

  • The owner of a roofing company in Philadelphia lied to OSHA on four occasions that he’d provided fall protection to employees after one his workers fell to his death. He even went so far as to instruct other workers to tell OSHA that they had worn fall protection on the day of the incident.
    He was indicted for lying, obstruction of justice and willfully violating an OSHA standard. Facing 25 years in prison, he pleaded guilty and was sentenced to 10 months in jail.
  • A worker was killed in 2015 because of a trench collapse at a construction site in Manhattan’s Meatpacking District. The general contractor was convicted of manslaughter for improperly securing the work site.

 

To obtain a conviction under Section 17(e) of the act, a prosecutor must establish beyond a reasonable doubt (unlike the lower civil standard for ordinary OSHA enforcement actions) that:

  • An OSHA standard (not the General Duty Clause) was violated;
  • The violation was committed by the employer (in other words, not by a rogue employee);
  • The violation of the standard was the direct cause of an employee’s death (prosecutors must prove beyond a reasonable doubt that the conduct underlying the OSHA violation resulted in the death); and
  • The violation was committed willfully by the employer.

 

Other actions that may result in criminal action

According to a the DOJ, in addition to willful OSHA violations that caused an employee fatality, employers (and employees) can face criminal sanctions in the following circumstances:

  • Falsifying OSHA documents
  • Advance notice of an OSHA inspection
  • Perjury during OSHA proceedings
  • Violating state criminal laws – The OSH Act does not preempt prosecution under state criminal laws, such as manslaughter or negligent homicide for work-related deaths and injuries.
  • Violating environmental laws.

Bill Would Make Collecting Health Information for Wellness Plans Easier

blue double helix models on background

Legislation has surfaced in Congress that would allow employers to collect biometric and genetic information from employees and their family members as a precondition for participation in a company wellness program.

The bill would essentially repeal a portion of the Genetic Information Non-discrimination Act (GINA), which in part bars employers from collecting genetic information on employees or members of their family for certain wellness programs.

The GINA bars health insurers and employers from discriminating against people based on information that their genes carry – say, a family history of heart disease or stroke.

The law contains an exception for employers that collect information from employees for a voluntary wellness program, the kind with no carrots or sticks for participation.

It is aimed at wellness programs that offer employees discounts on their health insurance in exchange for participation. Wellness plans may require participation in a health risk assessment or that the employee meet certain fitness or health goals.

Under the Affordable Care Act, employers can offer discounts of up to 30% on health insurance to employees that participate in wellness plans. In some cases, the employer can offer up to a 50% discount if the employees meet certain health targets.

HR 1313 would allow employers to collect biometric information from employees and their family members as a prerequisite for participation in wellness programs that provide discounts or other financial incentives.

Employer groups have decried the GINA’s strict rules, which they say inhibit their ability to help employees improve health metrics like high blood pressure and obesity, among others.

 

Bill’s key language

HR 1313’s key language states that:

The collection of information about the manifested disease or disorder of a family member shall not be considered an unlawful acquisition of genetic information with respect to another family member as part of a workplace wellness program.”

The bill passed along party lines in the House Education and the Workforce Committee, (22 Republicans for and 17 Democrats against). It still has other committees to clear before the full House votes on the legislation and sends it to the Senate.

Proponents of the bill, like the American Benefits Council, say that it would preserve wellness plans, which they say have suffered under the GINA.

Why You Can’t Afford to Not Have Professional Liability Insurance

At some point, most businesses are involved in some type of legal dispute, be it over an alleged physical or property damage to a third party or financial injury to a competitor, client or vendor.

And you’d surely want an insurance backstop in case you are targeted, to help pay for legal costs and any settlements or judgments. The type of liability that your business is going to face will depend on the type of work that you do.

If you’re in a service trade, the chances of your work causing someone physical damage or harm are remote, but you could still be sued for not living up to your part of a contract or if your services caused a client to lose money.

The costs of defending against a lawsuit of that type could quickly mount, even if you come out victorious in the end. Those costs would have to be borne out of pocket if you didn’t have the appropriate insurance.

The costs of not carrying professional liability insurance in many services trades can be a disaster to your finances as a lawsuit can catch you by surprise, even for work that you may have done years ago.

 

The unfunded lawsuit

Here’s a scenario that could leave you scrambling for funds. You run an engineering firm and a manufacturer sues your business after one of the machine parts that you designed failed, causing one of the client’s machines to seize up, resulting in $58,000 in damage to the machine and production downtime.

The lawsuit accuses your firm of negligence. Your business could be facing serious financial hardship as the suit asks for the cost of repairs and the lost production.

Here’s what you’re looking at:

  • Attorneys’ fees – Depending on where you live, these can range from $150 to $400 an hour, or more if you go with a topflight law firm.
  • Court expenses – Fees for copying, filing and other miscellaneous tasks all add up.
  • Other legal fees – You may need to call expert witnesses, as well.
  • Damages or settlements – Even if you try to reach a settlement with your client, they may opt to take the case to trial in hope of winning the full amount of the damages they are claiming.

 

You can see how the costs can quickly mount and if it gets to a damages or settlements stage, the costs will increase significantly.

You should know too that even if the case was frivolous, you’d still have to pay attorneys to defend it and file motions to have it tossed out of court. That alone could run you at least $5,000 in legal fees – a lot of money to pay out of pocket.

In fact, the U.S. Small Business Administration estimated in a recent study that legal costs for litigation ranged from $3,000 to $150,000, and only one-third of small business owners reported spending less than $10,000.

And there can be other fallout, as well. Perhaps word has gotten out about the lawsuit, damaging your reputation and ability to attract new clients and retaining existing ones.

And if one client has sued, others who may have held off and had similar experiences could also file suit.

 

Professional liability insurance

Insurance could have saved you from these significant expenses. The coverage, which is relatively inexpensive, is what’s known as “claims-made” coverage.

That means your policy must be active when the alleged incident occurred and when the claim is filed, in order to receive your benefits.

Client allegations that your work caused them a financial loss are often covered by a professional liability policy.

Professional liability insurance can cover errors and oversights with your work, as well as legal fees and the cost of settlements or judgments.

Cost: The average yearly cost of professional liability insurance for a small business, regardless of the limits chosen or the industry of the business, was $985.49 in 2015, according to the Insurance Information Institute. The median was $758.00.

GOP Releases Legislation to Gut and Replace ACA

House Republicans have filed legislation that would repeal most of the Affordable Care Act, including measures to eliminate the employer and individual mandates.

But from the get-go the legislation – backed by the House leadership – was panned by the GOP’s conservative wing, which said it doesn’t go far enough to completely get rid of the ACA, casting doubt on the prospects of it getting passed.

And Congressional Democrats immediately voiced their absolute opposition to the bill, vowing to vote ‘No’ on the legislation.

While passage in the House would be a bit easier, the slim 51-49 vote edge that Republicans hold in the Senate means it’s unclear whether the bill can pass in its present form.

But for now, this is the only piece of viable legislation that’s been floated to gut the ACA, and replace it with a scaled-down version.

The leadership is mindful that they cannot do an outright repeal, since it would affect some 20 million people who have been able to secure health insurance under the ACA.

The bill, called the American Health Care Act, would be phased in over time and would keep the ACA’s premium subsidies for policies purchased through insurance exchanges until 2020, as well as fund Medicaid expansion under the ACA for the same time.

This is just the first draft, and because of the opposition from conservatives in the Republican Party, the current version will not likely be the final one.

House Speaker Paul Ryan has said he wants to see the bill passed by Congress by the end of April. In other words, there will be a lot of work to do in very short order.

 

Here are some of the major provisions of the bill:

  • Eliminating the employer mandate that requires employers with 50 or more full-time or full-time equivalent workers to offer health insurance.
  • Eliminating the individual mandate requiring Americans to be covered either through their employment or by purchasing coverage on the open market or a health insurance exchange.
  • Ending the funding for Medicaid expansion as of 2020.
  • Converting the Medicaid to a program of capped per-capita federal grants to the states, starting in 2019.
  • Eliminating the subsidies available under the ACA and replacing them with age-based, refundable premium tax credits to help people buy insurance. Under the ACA subsidies are based on income, not age, and the proposed age-based tax credits generally would be smaller than the ACA’s.
    The tax credits proposed by House Republicans would start at $2,000 a year for a person under 30, rising to a maximum of $4,000 for a person 60 or older. A family could receive up to $14,000 in credits.
  • Removing ACA taxes and penalties (adding a premium incentive for continuous coverage and allowing insurers to tack on a 30% surcharge for people who let their policies lapse).
  • Protecting employer exclusion (tax write-off for employers and pre-tax for employees).
  • Retaining the “Cadillac tax” on high-value plans, but delaying its implementation to 2025 from 2020.
  • Eliminating the requirement that plans must offer minimum essential benefits.
  • Offering states $100 billion over nine years to establish high-risk pools or other mechanisms for stabilizing the individual insurance market.
  • Allowing insurers to charge older individuals five times higher premiums than they charge younger people. That’s compared with the 3 to 1 ratio under the ACA.
  • Expanding and promoting health savings accounts.

 

 

The fate of the legislation remains to be seen and under the proposal, it would surely not live up to President Trump’s promise that individual plans would be better and less expensive under the GOP’s ACA replacement.

 

We will keep you posted as the legislation develops.

 

 

 

As Damages Rise in Harassment Claims, EEOC Issues New Guidance

Mid adult manager wagging his finger at office worker calling up documents contain company results .

Juries are handing down larger and larger judgments in bullying and sexual harassment lawsuits against employers.

The stakes are high for any company that does not take complaints about harassment and bullying seriously and nip it in the bud if detected.

And now the stakes could become even higher after the Equal Employment Opportunity Commission proposed new guidance on preventing, identifying and eradicating workplace harassment.
The proposed guidance, if enacted, will likely give the EEOC more ammunition when pursuing harassment complaints against employers.
Under the proposed rules, employers are urged to take active steps to minimize “known or obvious risks of harassment” and failure to do so could make it difficult to defend the case.
In other words, while employers should respond promptly to harassment allegations, the EEOC says they actually have a duty to address conduct before it rises to a level at which the employer has to take action.

The proposed enforcement guidelines also require employers to take all complaints seriously and address them with prompt and thorough investigations.

All employers should have policies in place that allow employees to easily file complaints about harassment and not be fearful of losing their jobs for making the reports.

With the new guidance, the EEOC will not only look at how the employer is moving to correct the harassment, but also what it should have done to head it off before it became a problem.

 

Additional nuance

There is also another nuance in the guidance. As you know, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on any protected characteristic like race, national origin, religion, sex, age, disability and gender.

Under the proposed guidance, the EEOC would recognize claims for harassment based on the perception that an individual has a particular characteristic, even if that perception is incorrect.

Also, any bases for a harassment claim would also create a right of action for an associational discrimination claim. That is, the EEOC recognizes claims of harassment based on association with individuals outside the complainant’s protected class.

The commission also indicates in the proposed enforcement guidance that harassment based on the intersection of two or more protected classes (for example, race and gender) is prohibited.

The proposed rules also set for the thresholds for:

  • Bringing hostile work environment claims
  • Causation standards
  • Holding an employer liable for hostile work environment claims
  • Systemic “pattern and practice” harassment claims

 

The guidance also sets forth five “promising practices,” which the EEOC characterizes as core principles for employers to employ in preventing harassment in the first place.

  • Committed, engaged leadership
  • Consistent and demonstrated accountability
  • Strong and comprehensive harassment policies
  • Trusted and accessible complaint procedures
  • Regular, interactive training tailored to the audience and organization

 

The EEOC notes that instituting these practices alone is not a defense against harassment claims, but if they are in place, the agency can better discern whether you have a culture that would reduce the chances of harassment occurring in the first place.

After the proposed guidance is finalized and enacted, it will replace the sexual harassment section of the current EEOC Compliance Manual.

Also, while the new guidance does not have the full force of a regulation, it can be useful for you to understand how the agency will investigate and potentially litigate harassment claims.

 

What you can do

  • Implement and regularly update your anti-harassment and discrimination policies, and ensure they are accessible to and understood by all employees.
  • Hold anti-harassment and discrimination training for all staff members.
  • Have clear procedures for making complaints without fear of retribution.
  • Use best practices when investigating claims.
  • Ensure appropriate conduct is role-modelled by management.

 

Respond quickly and effectively to harassment, discrimination complaints

A businesswoman shouts through a megaphone and points up towards a much larger businessman who is standing over her.

Employers need to respond swiftly when employees complain about discrimination or harassment and the response must be effective, a U.S. District appeals court has held.

When a company addresses workplace it is responsible for ensuring that its solution will stave off further harassment or discrimination, a court of appeals has held in a case of a father and son who were eventually fired after complaining about harassment.

The case illustrates the need for an employer to not only act swiftly to respond and investigate claims of harassment or discrimination, but also to ensure that any remedies that are put in place are effective. Barring that and if the harassment or discrimination resumes, an employer could be opening itself up to a possible lawsuit.

In the case of Efrain Reynaga v. Roseburg Forest Products, the 9th District Circuit Court of Appeals held that a Hispanic millwright’s discrimination case against his former employer should go to trial and the court overturned a motion for summary judgment.

 

What happened

The case involved a father and son who worked as millwrights for Roseburg Forest Products and they were reportedly the only Hispanics working at the site.

The father claims they were regularly subjected to verbal abuse and derogatory comments from the lead millwright and harassed them, including comments like “minorities are taking over the country” and asking if “all Mexican women are fat.”

They also say they were regularly assigned dirtier, harder and more dangerous jobs than their white counterparts. When hostile work environment worsened, the father complained.

The company took action and rearranged the supervisor’s schedule so that he would not work the same shifts as the father and son.

But one day when they showed up to their shift, their old supervisor was there they immediately left the premises. They told their new supervisor they would not work with their old boss and they were promptly suspended and the father was later fired.

Reynaga sued Roseburg for hostile work environment, disparate treatment, and retaliation. The lower court granted the employer’s motion for summary judgment and threw out the case, but the appeal’s court decision reversed that decision, which means the case can go to trial.

 

The decision and why it’s important

The appellate court, in making its decision, said that a jury could find the termination retaliatory, saying that the termination for missing one-and-a-half shifts was widely out of proportion to the company’s “benign treatment of [the supervisor].”

“Efrain’s prima facie case is strong, particularly in light of the timing of the termination. Efrain had worked at Roseburg for more than five years, yet he was fired barely one month after making a formal written complaint. Proof of a causal link between Efrain’s complaint and his termination-as evidenced by temporal proximity-is certainly relevant to an evaluation of pretext.”

 

The takeaway

If you have had an employee legitimately complain about a hostile work environment, harassment and discrimination, you should:

  • Move quickly to investigate and address the issue if you find the complaint to be valid.
  • Ensure that the action you take is effective.
  • Don’t retaliate against employees for complaining about harassment or discrimination.

 

Remember, harassment and discrimination cases that go to trial can be costly in terms of litigation expenses, but also any potential judgments and penalties. The final level of protection is employment practices liability insurance.

Talk to us if you want to know more about this coverage.

Report, Investigate Near Misses to Improve Safety

Man nearly steps on a banana peel on a city street.

One of the most important workplace safety tools that you can put to use is the reporting of near misses and correcting the factors that led to such a close encounter.

A near miss is an event that could have led to a workplace injury, illness or death. While you are not required to report near misses to your insurer, you should be taking note of them as they can help you identify deficiencies in your workplace safety protocols.

You should use near misses as the starting point to conduct inspections that could help you prevent a real workplace injury in the future. But you can’t investigate what you don’t know, and it’s crucial therefore that your staff report such events.

Investigating near misses is part of any successful workplace safety management program and you should make the process for reporting them easy and without ramifications for the reporting employee.

 

What is and isn’t a near miss

An OSHA factsheet defines a near miss – or close call – as an incident in which no property was damaged and no workers were injured, but where, given a slight shift in time or position, damage or injury easily could have occurred.

The factsheet stresses that although near misses cause no immediate harm, they can precede events in which a loss or injury could occur.

You should resist the urge to chalk the near miss up to just luck or bad luck, because a series of events or lack of precautions would have led up to the close call.

Typically, near misses are the result of a faulty process or management system and it should be your goal to investigate and find out where the breakdown occurred and what you can do to improve it.

 

A near-miss program

Near-miss reporting is vitally important to preventing serious, fatal and catastrophic incidents that are less frequent but far more harmful than other incidents.

The National Safety Council recommends that the following should be part of your safety program:

  • Clearly define “near miss.”
  • Establish a reporting system that reinforces the notion that every opportunity to identify and control hazards, reduce risk and prevent harmful incidents must be acted on.
  • Investigate near-miss incidents to identify the root cause and the weaknesses in the system or employee action that resulted in the circumstances that led to the near miss.
  • Use investigation results to address the failure that led to the near miss and to improve safety systems, hazard control and risk reduction.
  • Use the lessons learned and your new protocols in employee safety training.

 

Reporting system

One of the key aspects of a near-miss program is reporting. Most importantly, you want to encourage your workers to report such incidents because often they may occur out of sight from a supervisor or manager.

You should put out clear instructions for all personnel on how to report near misses, including whom to report to. Create forms that detail the events, what happened and why they think it constituted a near miss.

Make sure to not assail any worker reporting a near miss. Encourage your personnel to report near misses without fear of retribution or being blamed.

Avoid thinking in terms of whom to blame when investigating a near miss and instead focus on what precipitated it.

 

Case studies

LESSONS LEARNED – A manufacturer uses event and near-miss analysis to head off future incidents. It uses an event system that records the near miss, including detailed information on what led to the close call and what lessons can be learned from the event. Those lessons are shared throughout the organization.

 

IMMEDIATE ACTION – A chemical manufacturer tracks lower-level claims and near misses to identify areas where more significant injuries are likely to occur. The company encourages employees to take action to resolve issues on a temporary basis until permanent controls can be implemented.

Republicans Consider Fixing ACA, Not Repealing It

Pandoras box and scull smoke

The steamroller everyone expected from President Trump and the GOP-led Congress to flatten the Affordable Care Act has been put on idle and what was a promised quick outright repeal has morphed into a plan to “repair” the law.

In particular, Republican lawmakers, huddling while trying to devise a repeal-and-replace plan, have instead found that it won’t be so easy, unless they want to cut off millions of people from the health insurance they have purchased on exchanges.

They are most concerned with the political fallout should that happen, not to mention the fact that a repeal would also do away with the Medicaid expansion that has ensured that millions more low-income earners are covered.

With everything in flux now, as we mentioned earlier, it’s best to continue complying with the ACA as it still is the law of the land and it’s looking more and more likely that the law won’t be repealed, but will be changed. And lawmakers have indicated that they may have a fix on the table by the end of the year.

Top GOP lawmakers have publically stated that some parts of the law will remain intact and others will be “fixed.”

Surprisingly, the Republican leadership’s views on the subject will now likely align more with Democrats who have acknowledged the flaws in the law and that amending the law is the best way to go.

While conservative and Tea Party Republicans say the law can’t be fixed and should be repealed, their desired outcome is looking less and less likely. Also, there is no consensus within the GOP on what should come next.

Members of the conservative House Freedom Caucus held a press conference on Feb. 7 saying that Republican legislators should not go soft on their promise to repeal the law and instead should quickly introduce new legislation that would repeal the ACA.

They want to model the bill after legislation that Congress passed but President Obama vetoed – in 2015. That legislation would have repealed the mandate that individuals have health coverage and that companies with 50 or more employees provide employees affordable insurance.

It also would have ended federal subsidies to help people afford insurance under the ACA and scrapped funding for Medicaid expansion. It also gave lawmakers two years to come up with a replacement plan.

But it’s the leadership that decides which bills move forward and out of committee.

For now, Republicans are up against a self-imposed deadline after they passed a measure in January that allowed them to begin putting together a budget process that will undo parts of Obamacare.

Under that deadline, four congressional committees were supposed to have drafted legislation repealing the law by Jan. 27, however no bill was introduced. Now pundits say that may not happen until April.

Republicans are now considering four drafts, language from which they will likely fuse into one bill.

Without Democrats, Republicans are limited in how much they can undo the law.

Congress will have to walk a delicate path and find ways to help middle-class Americans, some of who have complained about high and skyrocketing insurance premiums. Others are worried about repeal because the ACA has given them access to life-saving treatment.

Also, there are other forces at play, including stakeholders like businesses, health insurers, drug companies and the medical industry, which all have their own agendas and will be lobbying hard.

For now, continue complying with the law and cover your employees if you are an applicable large employer – and file your papers with your staff and the IRS on time.

Baseline Health Tests Can Shave Workers’ Comp Claims Costs

Digital Tablet with X-ray and Stethoscope

More employers are testing new hires in physical jobs to establish a baseline in case they ever file a workers’ comp claim down the road.

The aim is to establish what physical ailments and pain the new hire already has, so if they are injured you can find out if they aggravated an existing injury or it’s just an existing injury that’s flaring up. And if done correctly, baseline testing doesn’t infringe on the worker’s rights or health privacy.

Baseline testing should not be confused with physical evaluations that are conducted after a job offer, but prior to placement, to ensure the new hire doesn’t have physical constraints that would keep them from performing their job. The data in a baseline evaluation cannot be used for that.

In fact, the data collected in baseline testing is kept sealed from the employer.

 

How it works

Baseline testing is best conducted on workers in physical jobs.

Baseline tests measure the signals traveling in the nerves and muscles, and include the use of electromyography. The tests are non-invasive and often include range-of-motion testing.

Employers that send their employees for testing cannot view the test results unless the information is needed to confirm or refute a subsequent injury.

If a worker files a claim for a soft-tissue or repetitive motion injury, the employer can order a second test, which will be used by the insurance claims adjuster or treating physician to compare to the baseline test. If there is no change in pathology, the claims administrator can deny the claim and the chances are high it won’t be contested.

To avoid problems with singling out specific workers or disabilities, you should perform this testing on the entire workforce – or at least in all of your physical jobs.

Under the law, you can order baseline testing at any time on any employee, and not just when they are hired.

The good thing about the testing is that it can identify legitimate claims. Since there is a baseline, when doctors compare and see a change in pathology, they can order treatment and workers’ comp insurance pays for it and the worker’s time away from work.

On the other hand, a second test can show irrefutable evidence that there was no chain in pathology and so the injury that the worker is claiming is likely not work-related.

 

Savings

Anecdotally, employers that use baseline testing see tremendous results in their workers’ comp claims.

According to an article in <i>Business Insurance</i>, Wisconsin-based Marten Transport since starting baseline testing in 2015:

  • Has seen its rate of soft-tissue injury claims for new hires drop from 3.3 per 100 new hires to 1.4.
  • Has had only three of the 37 claims filed by new hires in their first six months showing actual injuries beyond soft-tissue pain that was documented when they began working.

 

Marten Transport conducts the tests as part of its employment agreement and uses a third-party company to carry them out.

The non-profit organization, the Gatesway Foundation, started using baseline testing by contracting with California-based Emerge Diagnostics to rein in its spiraling workers’ comp costs.

It had been experiencing a high share of work-related musculoskeletal injuries (soft-tissue) claims, like injuries to muscles, tendons, ligaments, joints, cartilage and spinal discs.

The year prior to implementing baseline testing, the foundation’s developed claims losses were $1 million. In the first six months of the next policy year, prior to implementing the program, the foundation’s developed losses were $500,000 but, in the latter half of the year – after implementation – losses had dropped to $30,000.

Overall, it reduced claims costs by $316,544 and the program cost $9,200 – a return on investment of 3,441%.

 

The takeaway
As mentioned, workers in physical jobs are the best candidates for baseline testing. That includes both light and heavy manufacturing, construction, agriculture, cleaning services and movers, to name a few.

But it could also be applied to any job that involves any type of repetitive motion, even without physical exertion.