Health Care Testing: A New Frontier for Worker’s Comp

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm in Milwaukee. Although the firm has featured a related blog post before, I think it is worthwhile to re-examine this subject. As has been mentioned below, there are a number of potential issues that could arise from such tests. In addition to the monetary fine for those who did not participate in the screenings, the workplace can seem less welcoming, regardless of whether person’s challenge is physically obvious. Take high cholesterol that has a genetic basis, for example. If a worker gets a fairly regular physical (annual or otherwise) through the preventative side of their health insurance benefits, that employee is probably already being treated for this issue and also probably doesn’t need the added bother of a company or contract nurse calling to espouse the benefits of decreasing that number, as these are concerns between workers and their doctors. Because for this particular issue, it is very possible that genes can trump what is considered the “healthier lifestyle” referred to below, even if that person appears to be more physically fit than other co-workers. In addition, it might be argued that genetic predisposition could be blamed when an occupational exposure is the cause, as Mr. Domer alludes to below. So even with money or benefits on the line, though losing $4,000 is definitely significant, it might be worthwhile for an employee to reconsider whether participating in a company’s wellness testing is really worth it in the long run.

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.

Happy Holidays to You and Yours

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Holiday greetings go out to you and yours this season. Special thanks are extended to those who are working hard to keep folks safe but are away from family during the holiday time, whether truck driver, first responder, nurse, or retail worker. Safety at home and safe travels are wished for all your celebrations.

We hope that this holiday season brings peace to so many who are hurting and hurt. May each of you have the opportunity to visit with loved ones who are held dear and take the time to appreciate those relationships with friends and family.

I hope that we can be mindful through our joy and celebrations to reach out to those who are alone but also respect those who want or need to be alone. And in this season of merriment, let’s appreciate our comfortable lives and good health and strive to help those who go without.

We are thankful for so much, and especially at this time of year, we are very thankful for family, friends, and the opportunity to advocate for clients who make our work worthwhile.

Take care traveling wherever you’re headed. Please take the time and use common sense to get to your destination safely. I send a special thank you to all, truckers, nurses, first responders and folks in other occupations who can’t be with their families because they are serving the public and keeping us safe.

I hope that all know happiness this holiday season and throughout the coming year.

The offices of Rehm, Bennett & Moore and www.truckerlawyers.com will close at 2:30 p.m. on Wednesday, Dec. 24, and remain closed on Thursday, Dec. 25, and Friday, Dec. 26, for Christmas. We will be open again on Monday, Dec. 29, at 8:30 a.m.

In addition, the offices will close at 3:30 p.m. on Wednesday, Dec. 31, and remain closed on Thursday, Jan. 1, and Friday, Jan. 2, for New Year’s Day. We will be open again on Monday, Jan. 5, at 8:30 a.m.

Happy Holidays, take care, and be safe!

What Does Supreme Court’s Warehouse Workers’ Ruling Mean?

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Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?

First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.

Examining the Ethics, Economics of Infections

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What is a person’s responsibility toward keeping fellow humans safe and healthy? How much of that responsibility falls onto an employer when it means sick people working because they don’t have sick leave, exposing coworkers and customers? And how much of that is personal responsibility that means a worker won’t get paid for taking a sick day that they didn’t have or even risk losing that job because they’re sick?

We have lots of questions with not as many answers as we would like, but having a conversation is a start towards figuring out the solutions.

Originally, this blog post was going to include discussion with Ebola as the jumping point, and this article, The Ethics of Infection from The New York Times, offered so many good points and ways to consider where individual rights versus the greater good of society should intersect.

Unfortunately, for at least 81 people with whooping cough (pertussis) in Lancaster County, where Lincoln, Neb., is located, this discussion is now more than just an academic exercise, with very concrete life ramifications. A recent Lincoln Journal Star article had a lot of interesting details. “Whooping cough cases in Lancaster County are nearing an all-time high, and that number is expected to keep climbing for the foreseeable future, according to the Lincoln-Lancaster County Health Department.”

There has also got to be an economic effect, as loved ones must be taking care of many of these sick people and missing work, even if they’re not sick themselves. “According to health records, 65 percent of confirmed cases in Lancaster County have been kids ages 6 to 19.” And whooping cough is “extremely contagious, especially in the first few weeks.” Here’s what the article said about the span of time needed to stop the spread of the infection to others. Dr. Phil Boucher of Lincoln Pediatric Group and Tim Timmons, communicable disease specialist with the health department were quoted:

“People receiving antibiotics should stay home from school, work or day care for the full five-day course of treatment, Boucher said.

Those not receiving antibiotic treatment should stay home for three weeks after the onset of violent coughing, Timmons said.”

So whoever is taking care of those with whooping cough (or is sick themselves with pertussis) is looking at between five and 15 sick days. And if the caregiver then gets sick, random interactions, such as those highlighted in the article in the Times, can mean exposures for people who have no sick days. Then for workers with no sick days, and often no health insurance, the best of many really bad decisions has to be made. A previous blog post addressed the challenge of no sick days, in reference to the flu, but it can easily be adapted to the whooping cough situation above.

When it comes to offering solutions to the very real issues that arise with infections, we continue to urge employers to realize the value of paying sick employees to stay home and not expose others, regardless of the contagion. In addition, though it is a pretty controversial conversation, getting vaccines for infections often lessens the severity of the sickness, when it doesn’t outright prevent the sickness, in a person. Herd immunity also protects those who, for various reasons like allergies to vaccine ingredients, cannot be vaccinated themselves.

Finally, experts quoted in The New York Times article urge people to consider the greater good for society, a theme that shows up in many contexts time and again in the firm’s blog posts. Because citizens of the United States are focused on how tough they are as individuals and how they will just “get over” a sickness, many don’t realize that attitude is a luxury for many people for many reasons – some that are more obvious than others. Because a sick person doesn’t necessarily know, and sometimes doesn’t seem to care, about a worker’s immune-compromised family member and what exposure could mean in the long run.

Lawrence O. Gostin, a professor of law at Georgetown University who specializes in public health law and human rights closes the NYT article by talking about how far there is to go.

“America has gotten so focused on rugged individualism and the autonomy of the person that we forget we have wider ethical responsibilities to our families and communities and our country,” said Professor Gostin, who bows rather than shaking hands when he is sick and sends home ill students attending his classes. “This me-first mentality is what I think promotes irresponsibility when it comes to public health.”

Let’s hope all those with whooping cough get better as the infection runs its course and that all humans can have a safer and healthier holiday season and 2015.

James Brown and Attorney/Client Relations

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Artist James Brown

Today’s post comes from respected colleague Leonard Jernigan of The Jernigan Law Firm in North Carolina. His reflection on the documentary about legendary funk musician James Brown is a great philosophy for working with clients and can also be applied to many other situations in life. In this season of giving and the hustle and bustle toward the end of the year, give yourself permission to think about how this year has gone and what your goals are for next year. Take care, and be safe.

If you haven’t seen the recent movie or HBO documentary on James Brown, you should check it out. He made me think about these top ten client relation tips:

  1.  Treat all clients with respect and dignity.
  2.  Try to understand the stress that our clients are under, especially when they are upset.
  3.  At the same time, do not tolerate verbal abuse from clients. Respect works both ways.
  4.  Keep boundaries. Clients need you to have an objective view, not become their best friend.
  5.  Clients don’t care how much you know, until they know how much you care.
  6.  Be honest in all things, at all times. Keeps you out of trouble.
  7.  Building good relationships are the foundation blocks of success.
  8.  Keep the client informed about what you are doing.
  9.  Be prepared and be thinking about going to trial from the first day. Cases settle more often and you get better results when you are prepared.
  10. Think about James Brown. He was the “hardest working man in show business” for a reason. He gave it everything he had, and it showed.

 

 

Administration Warns Employers: Don’t Dump Sick Workers From Plans

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Today’s post was shared by Gelman on Workplace Injuries and comes from www.npr.org

I think the post is timely because it is currently open enrollment at healthcare.gov for 2015. Here’s a link with the details of deadlines and the nuances involved. Generally speaking, open enrollment is now through Feb. 15, 2015.

For those with 2014 coverage through the Affordable Care Act, current coverage ends on Dec. 31 of this year, according to healthcare.gov. Keep this deadline in mind: “If you want a new plan to start January 1, 2015, you must renew or change your plan by December 15, 2014.”

Here’s an incentive for those who are more financially motivated than motivated by having insurance to prepare for the unexpected. “If you don’t have health coverage during 2015, you may have to pay a penalty. The fee in 2015 is higher than it was for 2014 — 2% of your income or $325 per adult/$162.50 per child, whichever is more,” according to the marketplace deadlines page on healthcare.gov.

Also, a person can enroll in Medicaid or the Children’s Health Insurance Program (CHIP) anytime, according to this website. Qualifications vary by state and depend on income level or disability.

Although Nebraska was not a state that expanded Medicaid in 2013 or 2014, it is likely that the legislature will address the issue again in 2015, according to this recent newspaper article.

If you have questions about whether your employer is discriminating against you, please contact an experienced employment attorney like Jon Rehm.

Man holding pills with banknote money flying away
Man holding pills with banknote money flying away

As employers try to minimize expenses under the health law, the Obama administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere.

Such a move would unlawfully discriminate against employees based on their health status, three federal agencies said in a bulletin issued in early November.

Brokers and consultants have been offering to save large employers money by shifting workers with expensive conditions such as hepatitis or hemophilia into insurance marketplace exchanges established by the health law, Kaiser Health News reported in May.

The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness.

Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That’s far more than the $10,000 or so it might give an employee to pay for an exchange plan’s premiums.

"Rather than eliminating coverage for all employees, some employers … have considered paying high-cost claimants relatively large amounts if they will waive coverage under the employer’s plan," Lockton Cos., a large brokerage, said in a recent memo to clients.

The trend concerns consumer advocates because it threatens to erode employer-based coverage and drive up costs and premiums in the marketplace plans, which would absorb…

[Click here to see the rest of this post]

Take the Time for Ag Safety This Holiday Season

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I hope you and yours were able to have a nice Thanksgiving break. Many people aren’t afforded that luxury because of work or other circumstances, so thoughts go out to them during the holidays. Due to an incident that recently happened on a local turkey farm near Waverly, the loved ones of Mr. Joaquin Danilo Mina Munoz are grieving his death. Sympathies are definitely extended to his loved ones.

Although original reports of being “sucked into grain while working with a running auger” were incorrect, Mr. Munoz did apparently die “when his clothing got tangled on the auger blade shaft” of a grain truck, according to the tragic story.

That incident got me to thinking about safety in agriculture. Now that the corn and soybean harvests are done, some folks breathe a big sigh of relief, but they shouldn’t be lax when it comes to safety.

Unfortunately, farming is one of the most dangerous jobs on the planet. And, as firm partner Todd Bennett wrote in a previous blog post, workers’ compensation is complicated in Nebraska when it comes to ag and farming operations. In fact, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) only covers a part of the nation’s grain-handling facilities, according to a recent in-depth story in the Lincoln Journal Star. That is why safety in grain handling and in agriculture in general is so important.

In addition, OSHA recently cited Double Dutch Dairy in Shelby, Neb., for four serious violations and proposed fines of $22,500 for an incident on June 17 where a worker was “fatally injured by a front-end loader,” according to the news release in the link. The Wisconsin-based dairy was cited “after an inspection found that the driver’s view was obstructed,” when the driver struck the worker.

Now that the busy harvest season is done and the busy-in-a-different-way holiday season is upon us, I urge all workers, but especially those in agriculture, to review their safety practices and take care so all can have the luxury of spending a little bit of time with their loved ones over the upcoming holidays.

Roger Moore Chairs Nebraska State Bar Association Work Comp Section Seminar

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Attorney Roger Moore

Firm partner Roger Moore recently completed his term as the chairman for the Nebraska State Bar Association (NSBA) Workers’ Compensation Section for 2014 with the conclusion of the Annual Workers’ Compensation Seminar on Nov. 14.

“My responsibilities were to develop topics, secure speakers and serve as master of ceremonies for the seminar by communicating with a variety of individuals over the course of numerous months,” Moore said. Roughly 100 people attended this year’s seminar, including firm associates Brody Ockander and Brianne Rohner Erickson

Moore completed his final year of serving a four-year rotation of leadership positions within the Workers’ Compensation Section, which started when he was nominated for and elected to the treasurer position three years ago. Moore was the third member of the firm to serve as chairman of the NSBA Workers’ Compensation Section. Partner Todd Bennett and I are past chairmen as well. Moore has participated as a member of the WC Section for the last 14 years, and is admitted to practice law in both Nebraska and Iowa.

There are currently more than 30 sections in the NSBA, according to its website. Each section is made up of a group of attorneys who share similar interests and voluntarily join that section. Attorneys can belong to more than one section.

The Workers’ Compensation Section is consistently one of the largest sections of the association. The section’s goals, according to Moore, are similar to the NSBA’s mission, which can be found here. Some of the priorities that Moore highlights include “to foster and maintain integrity, professionalism, civility and high standards of conduct by NSBA members,” and to help “provide quality support and services for NSBA members.”

Moore’s service is yet another example of the efforts our attorneys and staff have made to be leaders in the legal community, both as participants and leaders in shaping the legal conversations that affect our clients.