Posts Tagged ‘H1N1’

The Swine Flu, the ADA and Lawyers on the Prowl

Wednesday, October 14th, 2009

You might not think that the H1N1 virus, commonly know as swine flu, has anything to do with the ADA. Well, you clearly have not been reading Nation’s Restaurant News. Lisa Jennings writes a complex and cautionary tale for restaurant managers, warning them to back off from asking obviously sick employees whether they have the swine flu. Somehow, this advice does not sit well with me – or with anyone else who might sit down for a meal in a restaurant.
Attorneys with nothing else to do have raised the issue that swine flu may be a disability under the ADA. After all, we have all been warned of a potential pandemic and there have been a relatively small number of fatalities associated with the virus. But does that mean that every case of swine flu is a disability? Is the ADA’s recent recognition of shorter term disabilities meant to include a week of sore throats, coughing and fever?
Jennings quotes Virginia attorney Jonathan Mook, who notes that the ADA sets limits for when and how employers may inquire about medical conditions. He concedes that swine flu may not technically be a disability, but “it could be perceived as disabling because of the myths about it. If an employer asks specifically about swine flu, for example, and later is perceived as not wanting to work near the employee, even after the worker is no longer contagious, there may be grounds for a discrimination complaint.”
Are employers really supposed to worry about that?
Fortunately, the article recommends that employers focus on symptoms:

In communities where an outbreak occurs, it is a good idea to include in every preshift meeting questions about specific symptoms related to the flu. It’s also OK for employers to ask whether employees have fevers, sore throats, coughs or intestinal ills, so long as they don’t ask for a diagnosis [emphasis added].

In addition, attorneys say, employers are permitted to send employees home if they’re showing symptoms of the flu and are allowed to ask them to stay home for three to seven days, as recommended by the CDC in Atlanta–or as long as necessary to complete treatment, such as antiviral medication.

So the attorneys say that it’s ok to send people home for flu-like symptoms, as long as you don’t suggest that you are doing so because you think they have swine flu.
A Note from the Doctor and FMLA
To complicate matters even further, a specific diagnosis of swine flu is unlikely, as most people with flu-like symptoms are instructed to stay home and employ the usual remedies. We are not to go to hospitals and clinics unless symptoms are unusually severe. The CDC does not want to overwhelm emergency rooms and local clinics with needless requests for documentation.
On the other hand, if there is a formal diagnosis of swine flu, the employee may be eligible for FMLA leave, as this particular flu would be considered a “serious medical condition” – as opposed to regular flu, which might also kill you but is not viewed as a part of a world-wide pandemic. Go figure.
I hope that a fear of (preposterous) litigation does not result in employers keeping sick people at work. No one with flu-like symptoms belongs in the workplace. I have never sued anyone, but if my scrambled eggs are delivered by a waitperson with a runny nose, flushed skin, an expectorant cough and a raspy voice, I won’t eat a thing. And if there happens to be a lawyer in the next booth, I surely would be tempted to strike up a conversation.
Postscript: A note of thanks to my esteemed colleague Jennifer Christian, CEO of Webility, who somehow finds the time to read National Restaurant News.

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Posted in Best Practices, Disability, Medical Issues | 1 Comment »

New Health Wonk Review posted; other noteworthy news

Thursday, October 1st, 2009

For another biweekly issue of the best of the health policy blogs, Brady Augustine hosts The Boys (and Girls) of October edition of Health Wonk Review at medicaidfirstaid. Get a little baseball nostalgia with your health policy. For our neighbors in the Boston area, Brady recalls the era of Carlton Fisk, Carl Yastrzemski, Fred Lynn, Jim Rice, and Luis Tiant.
Other news notes…
ADA, RTW and the law – Failure to accommodate an injured worker as they return to the workplace can be costly. Sears is setting a $6.2 million bias case over just such an issue. Sears refused to reinstate a recovering injured worker with reasonable accommodations when he sought to return to work, and subsequently fired him. An investigation turned up more than 100 other employees who sought return to work with an accommodation, but were fired by the company.
New Mexico – “Thirty-three states, including neighboring Colorado and Arizona, already require workers’ compensation for farm workers, although some limit coverage or exempt small farms. But New Mexico’s agricultural workers fall into a job category not protected under state law.” New Mexico agricultural laborers sue for workers’ comp coverage.
Presenteeism – Is presenteeism worse than absenteeism? Roberto Ceniceros looks at new research on the issue at CompTime.
Veteran issues – Risk and Insurance has been running an excellent series on issues facing vets on their return from Iraq and Afghanistan, authored by Peter Rousmaniere. The third and most recent installment: Dealing With Scar Tissues. If you haven’t been following, catch up here:
Part 1: Wounded Back Home
Part 2: Frayed Obligations
H1N1 Virus – Jon Gelman makes the case for the urgent need for workers compensation pandemic planning, noting that in the case of emergency, the Federal government has sweeping powers under the Public Health Service Act (PHS) that could disrupt employment throughout the country. He cites a recent Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there is an outbreak, and looks at what this might mean to workers comp.
Flu.gov has issued Guidance for Businesses and Employers for the Fall Flu Season. Consumer resources are available at the Consumer Insurance Blog.

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Health and safety news from the blogosphere

Wednesday, August 26th, 2009

Money-Driven Medicine – Maggie Mahar, one of the regular Health Wonk bloggers who we admire, is author of the book Money driven medicine: the real reason health care costs so much. Her book has been made into a documentary by Alex Gibney, the producer noted for his documentary expo Enron: The Smartest Guys in the Room. This Friday night, Bill Moyers Journal will preview excerpts of Money Driven Medicine, which Moyers cites as one of the strongest documentaries he has seen in years. It bears checking out. For more about the documentary, including a trailer, see moneydrivenmedicine.org. You can also follow Maggie’s blog posts at Health Beat.
Meanwhile, in Business Insurance, Joanne Wojcik writes that two surveys project that healthcare benefit costs will increase by more than 10% in 2010. Aon Consulting projects an average 10.5% increase, while Segal Co. sees cost increases ranging between 10.2% and 10.8% for managed care plans.
Nanoparticles – the NIOSH Science Blog highlights recent research related to occupational disease and nanoparticles. Nanotechnology is the discipline of technology that works at a molecular level with particles that are less than 100 nanometers in size. Earlier this year, the CDC released Approaches to Safe Nanotechnology (PDF), which offers recommendations for specific precautions to protect workers who are exposed to any level of nanoparticles. Learn more about research and risk management at the NIOSH Nanotechnology site.
Fatal Sunshine – Time recently featured an article on the plight of California farm workers, who frequently do not have adequate protection from heat stroke and basic precautions to prevent heat-related illness. While California state law mandates heat stress standards, many employers do not adhere to those standards. The ACLU and the law firm Munger, Tolles & Olson are suing California’s occupational health and safety agency on behalf of the United Farm Workers, workers who became sick, and relatives of workers who died from heatstroke.
Employer Pandemic Planning – While there are dueling projections for the potential impact of the H1N1 flu this fall and winter, it pays to be prepared. Safety Daily Advisor offers an abbreviated workplace pandemic planning checklist based on CDC recommendations. For more detailed planning information for work and home, see Flu.gov.
More on work suicides – We noted last week that a recent Bureau of Labor Statistics report showed that workplace suicides increased by 28% in 2008. At Comp Time, Roberto Ceniceros looks at the issue of workplace suicide in light of a recent Indiana appeals court ruling in which a widow was denied benefits related to her husband’s suicide.
Taking the job home – Jon Gelman blogs about a recent CDC study showing that workers who are exposed to lead can transport it home. The CDC suggests certain precentive measures to minimize risk to other family members.
Fitness for Duty – Fred Hosier of SafetyNewsAlert posts about how to deal with employees who are consistently unsafe through a comprehensive fitness for duty program.
OSHA – Is OSHA back in the business of enforcement? The Safety Duck thinks that issuance of 142 citations and $576,000 in penalties against Sims Bark Co. and Sims Stone Co. signifies that it is.

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New Health Wonk Review; other news notes

Thursday, July 9th, 2009

If you find the task of following breaking news developments on the health care reform front a trifle daunting, we have a solution: let the health policy blogosphere’s best braniacs dish up and dissect the news for you in bite size portions in the bi-weekly compendium of the best of heath care policy posts. Check out the fresh edition of Health Wonk Review: Crunch Time For Health Reform hosted by Ken Terry at BNET Healthcare Blog.
And in other news:
MHSA – The Pump Handle tells us that Joe Main has been nominated for Assistant Secretary of Labor for Mine Safety and Health and posts some info on his background.
Taking the industry economic pulse – With another quarter in the year under our belt, several industry watchers have taken the pulse of the industry’s health. In Business Insurance, Roberto Ceniceros reports that a tough climate is shaping up for workers comp. Among the many problems he notes, he reports that sources have told him that “…rising bankruptcies have insurers concerned that defunct businesses may not pay all their premiums and leave their insurer stuck with claims that should have been paid by the company.” Risk and Insurance features an article on a report from Fitch Ratings which discusses the challenges that the workers compensation market is facing in 2009. According to the report, underwriting performance is expected to worsen in 2009 as rate reductions persist. And we’ve recently noted grim news in the industry at large: first quarter of 2009 was the worst on record for property casualty insurers since quarterly results were first compiled in 1986.
Training – Eric at The Safety Blog reports that OSHA is targeting fraudulent trainers in construction and general industries and is working to strengthen their trainer authorization program. They will be conducting more surprise visits to independent training centers to check for compliance with program requirements. Trainers are authorized to teach and to do outreach training only after completion of a one-week course in an OSHA Training Institute Education Center. Learn more about training certifcation: OSHA Outreach Training Program.
H1N1 – Lloyd’s warns that pandemics continue to pose a threat to companies – Many feel the flu publicity and warnings earlier in the year were overstated because up until now, the manifestations of the flu have been very mild. According to WHO, there have been 429 fatalities out of 95,412 cases. Yet Lloyd’s points out that it has been having a devastating economic impact on some businesses and notes that, “Up to now flu cases have been relatively mild; however, Lloyd’s warned that “health officials worry that swine flu could mutate during the southern hemisphere winter and return in a more virulent form in the northern hemisphere this winter.” Keep up to date on any developments at Flu.gov.
Waste treatment fatalities – More on last week’s three fatalities at Regal Recycling: Old Story in Waste Removal: A Worker Collapses, Then Rescuers Do: “Dr. Hendrickson and two co-researchers found that in 42 incidences of workers’ dying of hydrogen sulfide toxicity between 1993 and 1997, more than one-fifth involved multiple deaths, including co-workers killed while trying to rescue a colleague. In all, 52 workers died over that period. The deaths have mounted despite strict standards governing work in confined spaces set by the federal Occupational Safety and Health Administration.”
And in another waste treatment plant, a worker recently died of burns suffered in an explosion that occurred while he was cleaning a tanker at CES Environmental Services in Houston. The death was the third at a regional CES operation since December, unleashing criticism from area residents, activists and city officials, who are looking to shut down the plant.
Useful Twitter feeds
@govsites – A searchable directory of any nation’s Government sites on Twitter
@NIOSH – The National Institute for Occupational Safety and Health
@usdol – Jobs, employment, workforce, safety, labor, government 2.0 issues & regulations news and information from the US Department of Labor
@Disabilitygov – Official U.S. Government Web site for People with Disabilities
@CCOHS – Canadian Centre for Occupational Health and Safety (CCOHS)
@FluGov – One-stop access to U.S. Government H1N1, avian and pandemic flu information
@VHAVeterans – Veterans Health Administration in the U.S. Dept. of Veterans Affairs
@usfire – Official Twitter account of the U.S. Fire Administration – Working for a Fire-Safe America

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Swine Flu Meets Workers Comp

Monday, April 27th, 2009

It’s only Monday morning and many of us are just refocusing after a weekend of gardening, football drafts, NBA playoffs, baseball (Ellsbury steals home!), so we are probably not quite ready to think about the unthinkable: a potential swine flu pandemic, originating in Mexico and already active in several major American cities.
Here is the official government announcement (which appears to circumvent potential panic by burying the bad news in gov-speak):

As a consequence of confirmed cases of Swine Influenza A (swH1N1) in California, Texas, Kansas, and New York, on this date and after consultation with public health officials as necessary, I, Charles E. Johnson, Acting Secretary of the U.S. Department of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, 42 U.S.C. § 247d, do hereby determine that a public health emergency exists nationwide involving Swine Influenza A that affects or has significant potential to affect national security.

[Where, oh where, do they learn to write like that?]
As is our custom, we focus on the implications for workers comp. Back in 2005 we blogged the ramifications of smallpox exposure from the comp perspective. The smallpox exposure – a result of the terrorism scare – proved to be a false alarm. The swine flu, unfortunately, appears to be all too real.
The Comp Dimension
It’s not difficult to isolate the kinds of activities that might expose an individual to the Swine flu. Many of these exposures are prevalent in the world of work:
: travel
: frequenting congested areas (travel terminals, public transportation, classrooms, etc.)
: touching anything handled by strangers
: eating out
: meeting business colleagues from around the country and around the world
In order for the flu to be a compensable event under comp, certain requirements must be met:
: the individual must be “in the course and scope of employment” when exposed to the virus
: the exposure must arise out of work (as opposed to being a totally random event)
: work itself must put the individual in harm’s way
An individual commuting to work via public transportation might have high risk exposure, but flu caught on a subway or bus would not normally be covered by comp. But if the exposure stems from company-provided transportation (for example, a van), the subsequent illness might well be compensable.
If one worker in a closed environment brings the flu to work, co-workers who succomb to the virus can make a good case that the illness is work related. The initiator, however, would not have a compensable claim, unless he/she could demonstrate a definitive work-related exposure.
Health workers are on the front lines of any pandemic. Even though it might be impossible to prove that they actually caught the virus at work, any and all cases of Swine Flu are likely be compensable.
If you fly on an airplane on company business and the person next to you is sneezing and coughing, your exposure is work-related and the subsequent illness is likely to be compensable. If you are flying to visit Aunt Martha, you are on your own.
The comp system is not well equipt to deal with illness. It’s usually very difficult, if not impossible, to determine exactly when an individual actually caught the virus. With state laws varying in their assumptions of compensability, with a multitude of insurance carriers and third party administrators making compensability determinations, we will see a crazy quilt of decisions regarding the compensability of swine flu.
There is a lot of money at stake in these compensability decisions. For mild cases, the issue is moot. It’s the more severe cases – prolonged illness and even death – that raise the greatest concerns. While thus far the fatalities have been limited to residents of Mexico, if the feared pandemic occurs, there will be prolonged illness and even fatalities in the states. Then the crucial decisions regarding compensability will directly impact the future cost of workers comp insurance.
What is to be Done?
So how should employers handle flu exposures? For a start, educate employees on prevention. The above government website has some helpful hints – and they are actually written in plain English; unfortunately, they are only written in English.
Any employee showing up at work with flu symptoms should be sent home immediately. And if any employee appears to come down with the flu while “in the course and scope” of employment, employers should report the illness to the insurer/TPA, so that a proper compensability determination can be made. As in all things comp, it is usually a mistake for the employer to make assumptions about compensability. When in doubt, report the illness and let the experts determine what to do.
As the world lurches from one crisis (economic) to another (pandemic), it is all too clear that we have fulfilled the Chinese (?) curse: “May you live in interesting times.” We do, indeed.

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Posted in Compensability, Medical Issues, Safety & Health | 1 Comment »