Posts Tagged ‘ADA’

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News Roundup: ADA at 25; Consolidation; Retaliation; “Old Farts” and other noteworthy items

Monday, August 3rd, 2015

Last week, the ADA turned 25. A few noteworthy related posts:

Joe Paduda’s been working through the summer, keeping track of the recent spate of industry consolidations and the implications for workers comp. At his blog, he also features an interesting post about Maryland’s innovative approach to hospital care – and implications for work comp: “…a fundamental shift in medical care is occurring, one that will have a dramatic impact on how patients are evaluated and monitored and incentivized to pursue health, what care is delivered via what method (telemedicine, care extenders, wearable technology). This will dramatically affect workers’ comp – patients will be healthier but the bifurcated payment system will cause headaches.”

Jon Hyman of Ohio Employer’s Law Blog says that while employers tend to associate retaliation with the big employment statutes (Title VII, the ADEA, the ADA, the FMLA, and the FLSA), are dozens of other federal statutes that protect employees from retaliation. He offers a handy alphabetized list: Retaliation alphabet-soup

In what appears destined to be a classic in the “what not to do” department, Robin Shea posts about the court case that followed when an “Old fart” got fired at Employment & Labor Insider. It’s one case with many lessons!

If your summertime vacations include any water sports, you might want to take a look at the Consumer Insurance Blog’s post and video about how drowning doesn’t look like what we see in the movies. The post notes that “We have wrong ideas about drowning and our ignorance means we don’t always recognize the signs of a person in distress when we see them.” This ignorance means that every year, children die in pools and water just feet away from parents or friends who do not recognize the signs of distress.

Lone workers continue to pose a risk challenge for workers comp. At WCI360, there’s a reprint of Tom Musick’s article from The National Safety Council August 2015 newsletter: Taking Steps to Ensure the Safety of People Who Work Alone.

Dave DePaolo says that he reported on Illinois’ lax attitude towards workers’ compensation fraud in 2013 and things have not gotten much better since. In Illinois Light on Fraud, he notes, “The latest report from the WCFU reflects there were just six convictions in 2014, with only one resulting in jail time.”

Advanced Safety and Health reports that OSHA has added key hazards for investigators’ focus in healthcare inspections: “Targeting some of the most common causes of workplace injury and illness in the healthcare industry, OSHA announced the agency is expanding its use of enforcement resources in hospitals and nursing homes to focus on musculoskeletal disorders related to patient or resident handling, bloodborne pathogens, workplace violence, tuberculosis, and slips/trips/falls.”
Related: OSHA Healthcare Inspections

Ken Ward at Coal Tattoo reports on the latest case developments in the criminal trial against Don Blankenship: Why doesn’t Don Blankenship want the jury to hear about the Upper Big Branch Mine Disaster?
Follow past case updates here

At The Pump Handle, Celeste Monforton offers a roundup of tributes on the passing of Donald Rasmussen: Coal miners’ physician, humble man. A dedicated worker health and safety advocate, “For more than 50 years, he diagnosed and treated coal miners with work-related lung disease, first at the then Miners Memorial Hospital in Beckley, WV and later at his own black lung clinic.”

Your chance to speak out – deadline August 7
Bob Wilson: The Feds Are Looking to Act on Disability and RTW: Speak Now or Forever Hold Your Peace
Jennifer Christian: Tell us: Who should be helping workers with health problems keep their jobs? and #1 of 3 fleeting opportunities to influence policy recommendations

More noteworthy news

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Risk roundup, pill wars, odd lot, obesity & more

Thursday, March 8th, 2012

Risk Roundup – Emily Holbrook hosts Cavalcade of Risk #152 at Risk Management Monitor
Florida’s pill war – Timothy Martin and Arian-Campo Flores of the Wall St Journal take in the Florida landscape after the pill mill crackdown in New Front Opens in the Florida Pill War. They note that, “One former hot spot in Broward’s Oakland Park now has just two pain clinics, compared with 26 a few years ago, said Lt. Pisanti. “It changed almost overnight,” he said.”
However, the addicts haven’t gone away. The authors note that, ” … drug users and dealers adapt to the changing landscape and pill demand shifts to retail pharmacies and other establishments that appear to have been set up to skirt the new restrictions.” The article talks about the pressure pharmacists are facing and an increase in forged prescriptions.
Pill pushing docs, take note – My colleague recently posted about the prosecution of Ohio’s Dr. Paul Volkman, the single most prolific prescriber of Oxycodone and related opioids in the entire country. (Four life sentences) Individual states and the feds are starting to get tough about cracking down on this stuff. Joe Paduda talks about the prosecution of drug-dealing docs in CA, FL, CO and other states. Also see Roberto Ceniceros’ blog post on the race to stop opioid abuse.
“Odd Lot” Doctrine – Dave DePaolo talks about the psychology of disability and the inter-relatedness of disability and mental health as illustrated by a case of a injured Wyoming worker. After his claim wended its way through the courts, the worker was granted permanent total disability benefits under the “odd lot” doctrine.
Is obesity getting a bum rap? – Maggie Mahar challenges assumptions about obesity in her post Obesity: Fact vs. Fiction at Reforming Health blog. As with everything Maggie writes, it’s worth a read!
ADA and Veterans – The Equal Employment Opportunity Commission recently released a new Guide for Employers on Veterans and the Americans with Disabilities Act (ADA). EEOC says that, “The revised guides … make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.” Related:
Guide for Wounded Veterans, which answers questions disabled vets may have about the protections and rights when returning to their former job or looking for civilian jobs.
Market Pulse – Clair Wilkinson of Terms + Conditions posts about more evidence of a slowly turning market citing new reports and studies.
Quick takes

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Risk roundup, elephants in the room, dental claims, yelling as an essential function, and more

Wednesday, November 30th, 2011

David Williams of Health Business Blog hosts the biweekly roundup of posts in the Insurance Fest Edition of Cavalcade of Risk. Check it out! Plus, poke around David’s blog – lots of good information, such as his recent posts on What does an Explanation of Benefits (EOB) actually explain and part 2.
The elephant in the room – Last week, my colleague reported on several issues and trends under discussion at the WCRI Conference. One of the key issues that has attracted some media attention is Richard Victor’s conference summary about the elephant in the room – employment. Insurance Journal’s Andrew Simpson has more on the tough challenges that face the workers’ comp system in the coming years as we cope with the “unprecedented disruption of the labor market.”
Ghosts of crises past… – Peter Rousmaniere recalls the workers comp crisis of 1991 private sector markets in some states came close to collapsing. He discusses ensuing legislative reforms and changes in employer and claims payer practices, which are are still making their impact known in today’s market.
Meanwhile, in England… – Jon Gelman notes that Britain’s Department of Work and Pensions has concluded that the principle of “no fault” should be eliminated from the workers’ comp system. “In a review published next week there are calls for a ‘rebalancing’ of safety laws and a dramatic reduction in the number of rules in the workplace.” Jon notes that our US system was modeled after Britain’s.
California Network Utilization Study – If California proves to be the national pacesetter that it so often is, look for network utilization to increase. According to a recent study by the California Workers’ Compensation Institute (CWCI), the use of Physician Networks in California workers’ comp is at a record high. Network physicians now provide more than 75% of all first year physician-based treatment, and receive two thirds of the dollars paid for physician-based services rendered in the first year. You can download the full report (and other reports too) from the CCWI Research page.
Dental claims – If you think it’s difficult to find a physician who understands workers comp issues, how about a dentist? At Risk Management Magazine, Laura McClain explores some of the complexities involved in dental claims, such as the fact that the average dental claim requires 17 dental provider visits. She notes that risk managers generally rely on their PPOs to manage dental injuries, but suggests that because these claims require a more specialized approach, risk managers need to give them special attention.
Essential Functions – We couldn’t find a better example of why it’s important to document the essential functions of a job that the recent case that Jon Hyman Of Ohio Employers Law Blog discusses in his post, “SAY IT! SAY IT!” Yelling as an essential function. Hyman’s take away for employers: “Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.”
US Road Casualties Mapped – Transportation related accidents are not only one of the leading causes of work-related fatalities in the US, they are one of the leading causes of death, period. Between 2001 and 2009, 369,629 people died on US roads. Now, courtesy of the Guardian’s Data Blog, you can see US traffic fatalities – every one mapped across America for those years on an interactive map. You can zoom in to search by your location. (Thanks to Liz Borowski at the always excellent Pump Handle for the pointer).
Cool Tool – NIOSH offers a Noise Meter shows how long it takes before a particular sound level becomes dangerous to the human ear. You can listen to the sounds and sound intensities of everyday objects. It’s an interesting little toy to share with workers to call attention to prevention efforts. Also see the other NIOSH resources on noise and hearing loss prevention.
Still an important health issue… – omorrow is World HIV-AIDS Day. The CDC has a good workplace resource: Business and Labor Responds to AIDS, which includes info on policy development, supervisory training materials, and educational materials.
News of Note

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Risk roundup & other news briefs

Thursday, October 20th, 2011

Van R. Mayhall of Insurance Regulatory Law makes his debut as host of Cavalcade of Risk with his “Meet the Experts” edition. Mayhall is an expert himself – an attorney who practices in the areas of Business & Corporate Law and Insurance Regulatory Law. We welcome his participation!
Workers Comp Conference – Nancy Grover offers a sneak peek at highlights of the National Workers’ Compensation and Disability Conference & Expo which is on the docket for November 9 and 10 in Las Vegas. You can follow more about upcoming conference events on LinkedIn’s National Workers’ Compensation and Disability Conference & Expo Group.
Maximizing wellness program ROI – According to a post by Preston Diamond in Risk Management Monitor, “On average, employers can see a 30% reduction in Workers’ Compensation and disability claim costs, according to a review of 42 published studies involving the economic returns of wellness programs. Moreover, wellness programs will reduce the costs of absences that, according to the 2010 Kronos/Mercer Survey on the Total Financial Impact of Employee Absences, add up to 8.7% of payroll costs, more than half the cost of health care.” But experts caution that all wellness programs are not equal so employers need to implement with care. See 5 Steps Companies Should Take Before Launching a Wellness Program.
Performance Standards & Disabilities – Employment law attorney Daniel Schwartz posts an FAQ on Applying Performance Standards to Employees with Disabilities. He notes that although the ADA affirms an employer’s right to define jobs and to evaluate employees according to consistently applied standards governing performance and conduct, it’s a case where the devil is in the details. But he links to some lesser-known EEOC guidance on the matter that helps to address some common questions.
High costs of excessive alcohol consumption – According to a new study on the costs of excessive drinking by the Centers for Disease Control and Prevention, the cost of excessive alcohol consumption in the United States in 2006 reached $223.5 billion, which translates into about $1.90 per drink or $746 per person. Researchers also pointed out that 72% or the total costs could be attributed to losses in workplace productivity.
Is Ohio drinking the tea? – Looking at some ballot issues in Ohio, Roberto Ceniceros asks if a tea party initiative could end workers’ comp. He cites a Toledo Blade editorial which argues that although the intent of the measure is to thwart the health-care reform law, it may open the door to some unintended consequences.
A picture is worth a thousand words – The Geography of a Recession is an animated view of U.S. unemployment from 2007 to 2011. Hat tip to Workplace Prof Blog for the pointer.
Lift Gates – Tony Jones of the MEMIC Safety Blog offers a good overview on safety considerations related to lift gates, including equipment considerations, pre-operations, operations, and special considerations.
News briefs

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Cavalcade of Risk & other news from the blogosphere

Wednesday, June 1st, 2011

Happy birthday, Cavalcade of Risk! – Russell Chatswood hosts the Fifth Anniversary Edition of Cavalcade of Risk – check it out. Russell is a New Zealander and among the Cavalcade’s posts is an update on the Christchurch earthquake claims from a report issued by New Zealand’s Investment Savings and Insurance Association (ISI).
New to our blogroll – DePaolo’s Work Comp Blog – by industry veteran Dave DePaolo, founder and CEO of WorkCompCentral.
When the bears win – In a post at Comp Time today, Roberto Ceniceros reports on a Utah appeals court ruling that upheld benefits for a light-duty employee who was fired for sending porno to colleagues via email. In citing the ruling, Ceniceros quotes The Stranger in the The Big Lebowski who said, “Sometimes you eat the bear, and sometimes, well, he eats you.” That is our nomination for our motto of the week.
Zombie style at the CDC – Have trouble getting your message heard by employers and employees? Maybe you need a new, attention-getting spin. Consumer Insurance Blog posts about how the CDC highlighted the importance of disaster and emergency planning by repackaging it as Preparedness 101: Zombie Apocalypse. With this packaging, they went from a few thousand page views for normal posts to more than 1.2 million over the course a few days.
Cell phones & brain cancer – In reaction to the recent World Health Organization warnings about cancer and cell phones, Merril Goozner posts about the role that conflicted science plays. Also see Gary Schwitzer’s post: News release precedes release of evidence on new cell phone/brain cancer warning.
ADA Amendments Act – The final regulations issued by the EEOC to implement the ADA Amendments Act of 2008 became effective on May 24. The new regulations feature 9 “Rules of Construction” to help employers determine whether an impairment substantially limits a major life activity. HR Daily Advisor offers a pair of posts to help employers plan for the changes: ADAAA Effective Tomorrow–Ready for Its 9 Rules of Construction? and ADAAA Effective Today–Steps Employers Should Take.
Cool tool – Objects falling from a height are a serious safety hazard – that’s why anyone working at a height should secure their tools. Tethers are a good way to do this. Hammerhead Industries offers a one page reference sheet: Tool Tether Guide (PDF)
Bus safety – At Risk Management Monitor, Jared Wade brings the news of another fatal bus crash which claimed the lives of 4 and injured more than 50. Driver fatigue is cited as the cause of the crash. Wade cites this as another instance highlighting the industry’s lack of oversight, and posts about other recent coverage on bus safety. He notes that there have been two stalled-in-Congress bills that have attempted to impose greater regulations: the Motor Coach Enhanced Safety Act and the Bus Uniform Standards and Enhanced Safety (BUSES) Act.
OSHA fines – from The Safety Blog, the Top 10 fines for construction companies. “In total in the 2010 fiscal year OSHA inspected 16,473 small construction companies and handed out 50,630 citations. These citations cost employers more than $46 million or an average of about $900 a citation.”

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Risk, ADA, OSHA, fraud & other workers comp news notes

Wednesday, April 20th, 2011

Risk roundup – Check out this week’s Cavalcade of Risk.
Americans with Disabilities – This week’s must-read is Dan Reynold’s essay in Risk & Insurance: Disability in the Second Act. He says, “… it’s not that the amended act, which goes into effect on May 24, represents a new game. It’s that the amended act has returned the ADA to its original, intended scope.” The article offers advice for employers to prepare for the changes.
OSHA gets tough on distracted driving – If your employees are texting while driving, the stakes just got higher. Jon Gelman posts about OSHA’s plan to fine employers for distracted driving accidents. This is part of OSHA’s initiative to reduce transportation accidents, the top cause of worker fatalities. Gelman says, “OSHA will investigate motor vehicle accidents, including cell phone records, and will issue citations and fine employers where an accident involved texting while driving. While OSHA has jurisdiction over employers, and not employees, it hopes to encourage all employers to declare motor vehicles a “text free zone.” More information and resources at the OSHA Distracted Driving page.
Fraud – to paraphrase the common horror film trope, “the fraud is coming from inside the house. When people refer to workers comp fraud, more often than not they are talking about employees. But as we’ve noted many times, employer fraud such as misclassification, is also a huge and costly problem. There are other players too – such as doctor mills, dishonest agents, and this week, Roberto Ceniceros points to a fairly egregious example of TPA adjuster fraud.
Limits on comp for PTSD? – SafetyNewsAlert talks about legislative efforts to curb permanent workers’ comp coverage for mental distress. A bill that is currently under review in Maine is drawing opposition from first responders. Here’s more on the proposed Maine legislation.
Dangerous technologies – In the new and emerging health risks department, we bring you Facebook Depression. Add this to the many other emerging technology-related maladies: Blackberry Thumb, Cell Phone Elbow, IPod Ear.
News briefs

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Tip Toeing Around Obesity

Wednesday, October 13th, 2010

Obesity as a health problem is not going away, nor is the issue of whether obese people are considered disabled under the Americans with Disabilities Act (ADA). The latest iteration of this saga involves the late Lisa Harrison, a morbidly obese employee of Resources for Human Development (RHD) in New Orleans. Harrison, an intervention prevention/specialist, worked with the children of mothers undergoing treatment for addiction. By all accounts, she performed her job well, but RHD viewed her as limited in a number of major life activities, including walking, so they fired her. Harrison died before the EEOC filed suit, but the lawsuit lives on.
Keith Hill, the field director of the EEOC’s New Orleans office, stated, “This is a classic case of disability bias, based on myths and stereotypes. The evidence shows that Ms. Harrison was a good and dedicated employee who did not deserve to be fired. All covered employers, whether for-profit or non-profit, must abide by the ADA’s provisions.”
It’s important to note that the EEOC is not basing the lawsuit on obesity itself, but rather on the idea that RHD perceived Harrison to be disabled. That’s why they fired her. The larger issue – so to speak – is whether morbid obesity in itself is a disability. This particular case will not attempt to resolve that condundrum. Thus far, the courts have resisted the idea that any and all obesity is a disability. They look for physiological causes for the obesity, including thyroid disorders and genetics. If there is no specific medical cause for the weight problem, obese people are generally not considered to be disabled.
It all comes down – as it usually does – to the ability to perform the essential functions of the job. Harrison did not seek any accommodation based upon a disability. She simply did her job and apparently did it well. It will be interesting to see whether the RHD defense raises the issue of risk: whether Harrison’s morbid obesity placed her or her young charges at immediate risk of harm – not hypothetical, but imminent – a difficult standard to prove.
Related posts:
If you search the Insider for “obesity” you will find three pages of postings. Here are a couple of highlights:
The story of Adam Childers, the obese pizza maker whose stomach stapling operation was covered by workers comp.
The federal case involving Stephen Grindle, whose job loss due to obesity was not covered by the ADA.

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ADA and Fitness for Duty Exams: No Fear

Tuesday, August 31st, 2010

Today we examine an interesting case where the ADA runs up against OSHA’s general duty clause, where the individual’s right to “reasonable accommodation” collides with the need to ensure the safety of the general public.
In 1999 Oscar Brownfield became a policemen in Yakima, Washington. By all accounts, he was a good cop. In 2000 he suffered a head injury in a non-work-related car accident. He returned to work about 6 months later. In 2005 the troubles began: he (wrongfully) accused a co-worker of malfeasance. He was short-tempered, storming out of a disciplinary hearing with a superior. He described moments of intense anxiety when he was not sure he could control himself. And he made alarming comments about how meaningless life had become.
Fearful of Brownfield’s mental state, his employer sent him for a Fitness for Duty Exam (FFDE). He was diagnosed with a mood disorder and disabled from work due to his “emotional volatility, poor judgment and irritibility.” The disability was considered permanent.
Then Brownfield had another auto accident. His treating physician, Dr. Gondo, released him for work: that is, he wrote that Brownfield could carry out the “physical requirements” of the job. When pressed on the issue of Brownfield’s mental state, Dr. Gondo did not back down, but he did not respond either. He simply remained silent. As a result, the Yakima police department sent Brownfield for a second FFDE, with the same result as the first. Brownfield was terminated from his job.
Claiming an ADA disability (he does appear eligible), Brownfield sued for a violation of the ADA, violation of his first amendment rights of free speech (his apparently groundless accusations against a fellow cop) and violation of the FMLA (which limits the ability of employers to require multiple FFDEs). Brownfield’s case was dismissed on summary judgment by the district court, a decision subsequently upheld by the 9th circuit court of appeals.
A Tool in the Toolbox
Employers often balk at requiring Fitness for Duty exams. They fear a violation of the employee’s rights. This case clearly indicates that those rights can and should be tempered by a clear-headed vision of business necessity. If the employee’s mental or physical condition undermines his ability to perform essential job functions safely, a fitness for duty exam is not only allowable, it is necessary. To be sure, the exam comes with a high standard: the need must be work related and it must derive from business necessity. But where these standards are met, employers must act. If the employer takes the path of least resistance and does nothing, they could easily be charged with negligent retention when and if something bad happens.
Management continuously walks a fine line between employee rights and the obligation to operate a safe workplace. Yakima took a chance in terminating Brownfield’s employment, but it appears that they did what had to be done and they did it legally. Brownfield was unable to perform his job safely. His mental state comprised a risk to himself and to the public he was oath-bound to protect. It is never easy confronting an unruly, agitated and volatile employee, but it must be done – and done in a timely manner.

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Cavalcade of Risk #111 and items that hit our radar this week

Wednesday, August 11th, 2010

Nancy Germond hosts this week’s Cavalcade of Risk #111. Make sure you click her “just for fun” video for a display of unusual talent! Of course, her links to more serious risk-related posts are fun too, although in a slightly more nerdy way ;-)
Here are a few other links to news items that hit our radar:

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Cavalcade of Risk, Rocky Mountain Style, and other news notes

Wednesday, July 28th, 2010

Check out the Rocky Mountain High Edition of Cavalcade of Risk. Louise of Colorado Health Insurance Insider produces a great compendium of recent “best of the web” risk posts on a variety of topics ranging from the ubiquitous health care debates to investing and long term insurance. It’s a great way to get a sampling of several blogs. Plus, Louise and Jay’s blog always offers a refreshing street-level view of issues related to health care. They offer a wise take on the big issues but also offer good advice on everyday health issues: If you ever get a rock stuck in your nose…”.
A good man wronged – Joe Paduda has been fighting the good fight for Sandy Blunt, former North Dakota state work comp fund CEO. Blunt had a recent setback when the Supreme Court affirmed his felony conviction, but more recently we learn that the prosecutor is under investigation for prosecutorial misconduct in the case. One of the charges against her is allegedly withholding exculpatory evidence from Blunt’s attorney. (If you aren’t familiar with the Blunt case, see Peter Rousmaniere’s article Blunting Political Vindictiveness or plug “Blunt” into Joe’s search feature and catch up.) We had the good fortune to meet Blunt at an industry symposium prior to all these events – he was on fire with his commitment to overhaul the ND agency, to inspire employees and employers alike, and to ensure the best possible care for injured workers. Innovative, energetic, creative – by all accounts, he was making a significant positive impact. Then came a series of surprising charges resulting in his ouster. As we’ve noted before, most of these charges were minor, trumped up administrative issues, such as spending a few hundred dollars on lunches and gift certificates to motivate staff – practices that were not uncommon in other state departments. Other more serious charges were dismissed or shown to be erroneous – and now we have potential prosecutorial misconduct being investigated.
ADA at 20 years – It’s been 20 years since the Americans with Disabilities Act was signed into law, a groundbreaking initiative which afforded unprecedented public access and workplace protections to the disabled. All those parking spots, wheelchair ramps, wider doorways, and sloped curbs? They didn’t exist a few decades ago. For a commemorative featuring recent news stories, commentary and employer resources, see HR Web Cafe: The ADA at 20 Years.
Calling Uncle Sam – Is the workers comp system broken for occupational diseases such as the ones that are likely to result from the BP oil spill cleanup? Peter Rousmaniere thinks so – the feds have had to bail the system out in two prior catastrophes within the past decade. He makes the case for federalizing occupational disease in his column at Risk and Insurance.
Walking the walk when it comes to obesity – Employees at Total Medical Solutions are taking their role as health care providers to heart and taking a leadership stance when it comes to doing something about obesity. In the last three months, 25 employees have shed a total of more than 400 pounds, and achieved good local press for their accomplishments. We were reminded of seeing this story when we read Roberto Cenicero’s post on the biggest loser, corporate edition, which talks about a competitive challenge several of Minnesota’s largest corporations have embarked on. His post also links to a recent study from Integrated Benefits Institute on “health and productivity management” practices at 450 U.S. companies.
Quick lesson in how to save $550,000 – Discouraging employees from filing a workers compensation claim for an on-the-job injury is a no-no. Just ask Rawley’s of California how they fared in a recent criminal investigation, which revealed that some managers were routinely telling injured employees to use their own insurance rather than report injuries to the state.
In the “what else is new” department… – Mark Hoffmann of Business Insurance reports on news from the most recent RIMS Benchmark Survey: The soft market is still going strong. “The survey, based on information provided by risk managers, found that workers compensation experienced the greatest decline in the second quarter, at 3.8%, while property and D&O dropped by 3.5%.”

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