Posts Tagged ‘Transportation’

Not Exactly a Rush to Judgment

Monday, October 19th, 2009

Kris Indergard used to work on the railroad. Then she hurt her knee (partly work related), had surgery and was out of work for over a year. Her doctor established “permanent” restrictions. Indergard wanted to return to work, so Georgia Pacific sent her for a physical capacity exam (PCE). The PCE provider observed Kris’s actual job, which the employer stated required lifting up to 60 pounds. Sixty pounds exceeded the restrictions established by the treating doctor, so the employer refused to take her back.
Half a year later, Kris’s doctor lifted the “permanent” restrictions. (“Miracle recoveries” – a subject in themselves – are beyond the scope of today’s blog.) So Kris had another PCE, this time including a complete medical workup. Her lifting ability was tested, along with job simulations. Not surprisingly, Kris was out of shape – she had been out of work nearly two years – so her aerobic capacity was limited. She could not complete a 60 pound lift. As a result, Georgia Pacific terminated her.
Indergard sued, claiming that the employer misrepresented the essential functions of the job: she believed that the lifting requirement was exaggerated; hence, the PCE was improper and discriminatory.
Her case boiled down to a technicality: was the PCE a medical exam? If yes, the exam “must be job related and consistent with business necessity.” If not, the PCE was exempt from this requirement.
The prior court determined that the PCE was not a medical exam and issued a summary judgment for the employer.
Big Picture, Little Picture, No Picture
Indergard appealed, noting that the PCE included a check of her blood pressure, her aerobic capacity and a detailed medical history. In other words, it was not simply a test of her physical capacities. The U.S. Court of Appeals, 9th Circuit in Oregon, determined that the PCE was indeed a medical exam. They over-ruled the summary judgment and remanded the case back to district court.
What is fascinating in all the legal arguments is what is missing: the issue of “reasonable accommodation.” Indergard challenges her employer’s contention that the job requires lifting of 60 pounds. How often is this lifting required? Are there any available lifting aids? Are other people available to help? Is lifting 60 pounds truly an “essential” job function?
Indergard’s victory isbased upon a technicality: the PCE was in fact a medical exam, because medical issues were included. (It’s difficult to imagine any test for physical capacities that would not include at least some medical issues.) We can only hope that the lower court focuses on the big picture: Indegard’s ability to perform the essential job functions, with or without accommodation. It’s hard to believe that this case has dragged on for six years. It began with a rush to judgment and ends with an agonizingly slow parsing of technicalities. Indergard wants her job back. Sounds simple enough, but with the wheels of justice churning along, it is doubtful that such an outcome will ever take place.

The End of Civil Discourse?

Monday, August 10th, 2009

We live, alas, in interesting times. As the health care debate spirals downward, the fault lines in our culture become more and more evident. On one side, anti-reformers stack town meetings to prevent any meaningful dialogue from taking place. These folks are even trying to intimidate unions. What am I missing here? Who is supposed to intimidate whom? On both sides of this momentous debate, pockets are being stuffed with special interest money. This makes the ultimate outcome – whether status quo or some degree of reform – highly suspect. The notion of genuine debate and civil discourse have disappeared altogether.
Which leads us back for a moment to the lingering conflict between UPS and FedEx. Back in December, we blogged FedEx’s unusual charter:

FedEx began 35 years ago as an airline. As such, it fell under the Railway Labor Act of 1926, which made unionization of public and commercial transport companies extremely difficult. By contrast, UPS began as a trucking company and was subject to the National Labor Relations Act from day one. UPS is unionized: they pay workers more than FedEx, they provide better benefits.

It would be to UPS’s advantage to remove their fierce competitor from the Railway Labor Act and force them to operate under the NLRA. That requires an act of congress, so it’s no surprise that UPS has been aggressively lobbying congress for this change. They say they want to level the playing field.
Level playing fields are fine. The devil is in the details: how do you accomplish your goal? Apparently, by playing unfairly. UPS has been accused of forcing union members to write to their congressmen, urging passage of legislation to eliminate the FedEx exemption. The letters bombarding congress appear to express the views of individual UPS drivers. In fact, many are based upon prescribed forms. We read in the Washington Post:

Officials with UPS and the International Brotherhood of Teamsters, which represents 240,000 UPS drivers, acknowledge that the company has paid for workers’ time to pen many of the letters and has supplied the envelopes, paper and stamps needed to mail thousands of them to Congress. UPS spokesman Malcolm Berkley said the effort was “totally voluntary, and any allegations to the contrary are ridiculous.”

But Internet sites dedicated to UPS-related discussions feature dozens of accounts from anonymous employees who in recent weeks have said they were forced to write the letters or felt they would be punished for not doing so. Such tactics could run afoul of both labor laws and lobbying disclosure requirements, according to legal experts.

So it appears that UPS may be violating labor laws in order to force FedEx to operate under labor laws. Were you expecting anything different?
Images
In one of Norman Rockwell’s many iconic images, a humbly dressed man stands up in a town meeting to express his opinion. The painting is entitled “Freedom of Speech.” We could certainly argue the degree to which such freedoms ever existed. But it’s all too clear that Rockwell’s image bears no relation to what is occurring today. If he were to depict our present situation, we would see an enraged citizen shouting down his local congressman. This individual would waive an inflammatory poster complete with Nazi symbols. In his pocket, we might glimpse the bus ticket that brought him into town. In the corner we might see an innocent mother, huddling to protect her child from the pending violence.
We are currently facing many complex issues, ranging from FedEx’s status as an employer to the health care options for every American. There are pros and cons to every path. No one really knows how to get from point A to point B. Indeed, we may not even agree on what point B is. But when civil discourse deteriorates into the ravings of the mob, we all lose. If winning is defined by who shouts the loudest, who cheats the most effectively, who succeeds in intimidating the oppostion, there will be no victory for anyone.

Fail-Safe Failure

Tuesday, June 23rd, 2009

At least nine people were killed yesterday when a Red Line Metro Rail train crashed into an unmoving train. Washington D.C. trains are equipt with the latest fail-safe technology. Accidents are not supposed to happen: trains are controlled by computers, which theoretically prevent any two trains from occupying the same space at the same time (the textbook definition of an accident).
Something failed yesterday. The key player in determining the cause was the second train’s driver, Jeanice McMillan, 42. She died in the crash.
The accident occurred in full daylight. The first train had stopped due to traffic ahead. The second train, traveling at high speed while rounding a slight curve, crashed into the stationary train: the brakes had not been applied. We may never know what McMillan was doing at the time of the crash, but we can guess that she either was not looking ahead or was too panicked by what she saw coming.
It is too early to point fingers, but Metro officials have already singled out McMillan. A Metro source said McMillan was “relatively inexperienced”, ranking 18th from the bottom on the seniority list of 523 train operators. She had been a Metro employee since January 2007. Train operators must first operate a bus for a year before they can apply to operate the train. They then receive about 12 weeks of training. Among the many things we will learn in the coming weeks is just how effective that training program is.
The Operator’s Passive Role
Lyndsey Layton, a Washington Post staff writer, describes how the system is supposed to work:

The trains in yesterday’s crash were supposed to be in automatic operation, which means the operators would have been relying on the computerized system to run the trains. The only function required of a train operator during automatic operation is to close the doors after a station stop.

This raises an interesting issue: if computers operate the trains, how much attention on the part of the driver is required? With little to do between stations, drivers may tend to “zone out” because they don’t have to pay as close attention as they do when running trains manually. The computerized system creates a false sense of security.
Four years ago the signal system briefly failed in the tunnel between Foggy Bottom and Rosslyn, forcing a quick-thinking operator to stop his train manually to avoid a crash. The operator of one train noticed that he was getting too close to the train ahead. The signal system was telling him the track was clear, but he hit the brakes anyway. For reasons that we may never know, McMillan was unable to do this yesterday.
The problem may lie in the concept of a system that cannot fail. Ultimately, no mechanical system can be totally fail-safe. Perhaps DC needs to re-evaluate the role of drivers and figure out a way to keep them more actively involved on a moment-to-moment basis. We are all lulled into a false sense of security by the technical wonders that surround us. As yesterday’s crash demonstrated, that security might be an illusion.

Texting and Driving: Dying to Communicate

Monday, May 11th, 2009

Aiden Quinn is 24 years old. He drives a trolley for the Mass Bay Transit Authority (MBTA or T) in Boston. He has a mediocre driving record, with three speeding violations (while operating a motor vehicle). Last week he was driving a trolley underground between Park Street and Government Center. He was texting his girlfriend, when he ran a red light and crashed into another trolley stopped in front of him. Over 40 people were injured, including Quinn. The T was shut down for hours.
Quinn has been fired – no surprise – and the T has now issued a policy prohibiting drivers from carrying cell phones. (I’m sure that made the other drivers real happy with their former colleague.) The 40 injured passengers are going to have numerous avenues for lawsuits, including: negligent hiring/negligent entrustment (should Quinn have been operating the trolley in the first place?); and negligent policies (they only prohibited cell phone use after the accident). We can assume that the T will settle as quickly as possible. This case is a real loser.
The larger policy implications are intriguing. It is safe to assume that any employee in the course and scope of employment who tries to text while driving is opening a huge liability for the employer. Texting is even more dangerous than talking on a cell phone: after all, you have to look at the screen to read a message and at the key board to reply.
[Aside: my teenage daughter assures me that her friends can text behind their backs without looking at the keyboard. This might work in class, but not very well on the road: “Look Ma, no hands on the wheel!”]
[Second aside: speaking of Ma, for a truly appalling (YouTube) video of a teenager who texts over 5,000 times a month, often while driving, check this out. If you can explain the passive “what can you do?” attitude of the mother, please explain via our comment section.]
Policy Conundrum
Employers are caught in a bind: they are virtually compelled to issue policies limiting cell phone use and texting while driving, even while they recognize that some of their best and most productive employees are multi-taskers who routinely operate this way.
Which brings us to the sad story of Phyllis Jen, a talented internal medicine specialist at Brigham and Women’s Hospital in Boston. Jen was driving her 2007 Toyota Prius when she drifted over the center lane at 6 pm (in full daylight). She crashed into another vehicle and was killed.
Police say it did not appear speed or alcohol played a role in the crash, but they were investigating whether Jen was using her Blackberry. Jen was famous for always being available, always willing to go the extra mile. Alas, she has abruptly and tragically run out of miles to go.
As companies struggle to integrate new technologies into safety procedures and as public officials struggle with whole new categories of risk, one thing is certain: the ubiquitous cell phone and related texting have taken a firm hold in our professional and personal lives. We just cannot seem to function without them. The problem is, in making ourselves available 24/7, we put our own lives and the lives of strangers at risk. Sure, we have important things to communicate. But on the scale of life itself, virtually all of these communications can and should be put off until time and circumstances allow. We might be dying to communicate with a colleague or friend, but it’s certainly not worth dying for.

Cavalcade of Risk, plumbers, illegal immigrants, cranes, contractors, and more

Wednesday, October 22nd, 2008

Cavalcade of Risk #63:The WABAC edition hosted by John Cogan at Regulating Health Insurance. John is the Executive Counsel-Executive Assistant for Policy and Program Review for the Rhode Island Office of the Health Insurance Commissioner. He’s a first time host of Cavalcade so you might kick the tires at his blog after catching up on the news.
One of this week’s posts we found noteworthy is from Louise at Colorado Health Insurance Insider entitled Business 101 For Joe the Plumber, in which she analyzes how Joe’s business would fare under the Obama and the McCain tax health care reform plans.
In other news:
Illegal immigrants and workers comp – Peter Rousmaniere posts about a new analysis of workers comp laws and illegal workers recently issued by the Independent Insurance Agents and Brokers. His post summarizes some of the key issues in the report but the bottom line is that 38 states offer at least some type of benefits to illegal aliens. The report is available in chart form (PDF) from WorkCompCentral.
High comp costs for defense-based contractors – The Pentagon is looking to curtail workers compensation costs for overseas defense-based contractors. Costs went from $7.6 million on 430 claims in 2002 to $170 million on 11,887 claims in 2007, according to the Congressional Research Service, with the Defense Department accounting for 90% of those costs. One of the ways that they are looking to cut costs is to consolidate to a single insurer.
Van pool risks – Nick Whitfield of Workforce looks at the risks involved with company-sponsored van pools. In response to skyrocketing gas prices, many employers adopted measures to help defray their employees’ costs of commuting, with van pools being one of the options. A van pool can have potential workers comp exposure depending on the way the pool is established. While injuries sustained during a commute would not normally be compensable under workers compensation laws, many state laws treat employer-sponsored transportation differently so injuries sustained in a commute might indeed be compensable. Many employers turn to third party contractors to run van pools and while this would generally mitigate the risk, experts suggest that employers who sponsor programs first consult with their broker, insurer and state workers’ comp authority.
OSHA and cranes safety – Celeste Monforton of The Pump Handle looks at the OSHA proposed rule on crane safety, which was published in the Federal Register on Oct 9 and will be in public comment phase until December 8. She notes that, curiously, the estimated 55 lives saved annually with the improved standard is not mentioned in the proposal.
Health & safety blogsThe Pump Handle referred to above does a great job covering health and safety issues in the workplace. We’d like to do a shout-out to a few other blogs that are on the health and safety case: long-time blogger rawblogXport; Tammy Miser at Weekly Toll; the vigilant folks at OSHA Underground; GotSafety Blog and The Safety Blog.

Cool tools

Thursday, February 28th, 2008

From time to time, we like to share a mixed bag of useful tools ranging from health and safety resources to productivity enhancers. Here are our latest finds:
ComplianceState labor legislation enacted in 2007 – the Monthly Labor Review’s 29-page PDF offers a summary of major labor changes on a state-by-state basis, including minimum wage, immigration initiatives, child labor, worker privacy, and many other legal matters.
TruckingSafe Stat is a safety resource for trucking, transportation and fleet safety. It’s a Department of Transportation site that includes such features as SafeStat, Crash Profile, Program Measures, and Current Analysis Results.
CaliforniaPD Rater bills itself as “a free benefits calculator for California.
GeorgiaGeorgia Tech’s OSHA 21D Consultation Program provides a free, confidential, on-site consultation service for small companies (fewer than 500 employees) in Georgia that need assistance in occupational safety and health.
Spanish – Georgia Tech’s OSH program also offers construction safety information in Spanish: Seguridad en la Construcción. The program includes posters, fliers and PowerPoint presentations. Other Spanish safety programs are also available.
Annoyances – Do you ever make a quick call and find yourself stuck in a nightmare automated loop and you can’t access the service you called for? Grrr. Here are two services that might help. Get Human is a company-specific database of phone numbers that will bypass the robots and get you directly to a human customer service rep. Sometimes they provide a direct number and in other cases, they give you the magic formula code numbers that will get you through. I’ve used this service a few times and it works. Someone also recently pointed me to an alternative service along the same lines, except it will do most of the work for you. Bringo! allows you to choose a company that you’d like to call from a list, you enter your number, and Bringo will call you back and connect you after they get through the phone tree and reach a human.
Travel productivity – If you travel a lot for work, FlightStats might be a lifesaver. The site allows you to track lights in real time, check on airport delays and wait time, and a links to a variety of other flight-related tools.
Search – Google has more search tools and web tools than you probably realized, some tucked away in various corners of Google that you may not have occasion to visit. Simply Google lets you access all Google’s tools one page without having to poke around to find them.

When work turns deadly

Friday, October 17th, 2003

Sometimes when workplace prevention breaks down, the events affect more than your employees as was the case in last week’s tragic N.Y. ferry crash that resulted in 10 deaths and 42 injuries. The accident investigation is underway, with all eyes on the Captain. Substance abuse testing of the crew showed no problem areas, but there have been some as-yet unconfirmed reports that the Captain was incapacitated after failing to take blood pressure medication. There will no doubt be prevention lessons that all employers can learn as the blame game in this event plays out.

Also worth noting: as public transport employees with “safety sensitive” jobs, the ferry crew were subject to random drug and alcohol testing as required by the D.O.T. But even those employers whose industries do not fall under the “safety sensitive” mandate should consider building an alcohol and drug free workplace.