Tag Archives: hazardous chemicals

Sanitizing as light duty work for injured workers?

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Last month in a trial, I heard an HR manager testify about something I’ve only read about on workers’ compensation insurance blogs, sanitizing or wiping down surfaces to prevent COVID-19 as part of a light or alternate duty assignment for injured worker.

While wiping down surfaces surely doesn’t spread COVID, most public health officials in the United States and abroad discount the importance of wiping down surfaces in preventing the spread of COVID. COVID is primarily spread through aerosol droplets from activities like breathing, talking, sneezing, etc.

So why are some employers pushing cleaning and sanitizing as light duty or alternate duty?

One, light duty assignments are always a good way for employers to reduce workers’ compensation costs. This explains the rise of so-called “voluntold light duty” jobs where employers volunteer injured workers for community service jobs. But unlike “voluntold light duty” employers receive financial benefits for placing employees in sanitizing jobs. In order to be eligible for PPP assistance, businesses need to maintain 75 percent of their payroll. Sanitizing jobs help businesses meet that requirement.

I think making workers do meaningless work is just an arbitrary exercise of power by employers. But sanitizing jobs pose unique risk. Cleaning chemicals can be hazardous to touch and inhale. I represented an employee who had to go the ER after using a restroom that was filled with chemical vapors from cleaning agents. Excessive chemicals could worsen air quality for workers who aren’t involved in sanitizing work. Having inexperienced workers using chemical may pose risks to themselves and others.

Supporters of light duty assignments argue that employees are better off working light duty because they maintain the employment relationship. That’s true to the extent that benefits like health insurance depend on earning wages. But reliance on employers for health insurance benefits just reinforces how employers can force employees to return to work after a work injury.

But there are other problems with light-duty jobs like “sanitizing” or retail “greeting”. They are temporary jobs reserved for workers are still recovering from injuries. In practice, this excludes many workers. Employers with light duty work programs tend to be high injury employers. High injury employers tend to be either self-insured or have high deductible insurance. As such, high injury employers want to press employees to reach maximum medical improvement or MMI as soon as possible. Hence the use of nurse case managers, occupational medicine clinics and paid examiners to push injured workers back to work whether they are ready or not.

But as soon as an employee is deemed to reach MMI, they are ineligible for light duty jobs like sanitizer or greeter. This leaves many workers in a kind of purgatory where they are still effectively unable to work  but technically employed without receiving wages or benefits.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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9th Circuit pesticide decision points out environmental hazards of D.C. swamp

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Scott Pruitt’s tenure at the EPA is worthy of derision, but the Obama EPA was far from stellar.

In a victory for farm workers, last Thursday the Ninth Circuit Court of Appeals ordered the Environmental Protection Agency (EPA)  to completely ban the use of the pesticide chlorpyrifos within 60 days.

While most comment on the decision seemed to criticize former EPA Administrator Scott Pruitt, who no doubt deserves the criticsm, the Ninth Circuit probably would not have ruled the way it did if the EPA under the Obama administration had not dithered in addressing the risks of chlorpyrifos.

What is chlorpyrifos and why is it dangerous?

Chlorpyrifos is a pesticide that is in the same chemical class as sarin gas. Chlorpyrifos can be toxic or even fatal for farmworkers exposed to it and studies show can contribute to genetic defects to children who are exposed to the chemical.  Unlike the popular chemical Round Up, that a jury recently found to have caused cancer for a California man, chlorpyrifos was banned for residential use by the EPA in 2002. However, the EPA still tolerates the chemical for agricultural use, wherein this court case began in 2007.

Background of the court case

In 2007, advocates for farmworkers and others filed a petition challenging the EPA’s tolerance for the use of chlorpyrifos in agriculture. In order to continue tolerating use of the chemical, the EPA would have to show no risk from the use of chemical. A 2008 EPA study showed the EPA couldn’t meet that burden. Another study in 2011 lead to the same conclusion.

Despite the findings of EPA scientists about the risks of chlorpyrifos in agricultural use the EPA took no action. Advocates for banning the chemical filed what amounted to a motion to compel against the EPA in 2014 which finally lead to a proposed rule in late 2015. Advocates filed another motion to implement the ban that the EPA fought in court.

Just when the EPA was ready to implement the rule, the Trump administration came in, under Scott Pruitt and denied the petition to ban chlorpyrifos. Farm worker advocates along with some state attorney generals filed an appeal in court The EPA, making no attempt to argue the merits of the claim, argued that the petitioners hadn’t “exhausted administrative remedies” or followed the proper procedure before litigating the case.

Federal District Judge Jed Rakoff, who was essentially filling in as an appellate judge in the Ninth Circuit, wisely rejected  the EPA’s argument.  He pointed out that allowing the EPA to argue the petitioners had not exhausted administrative agencies would just encourage the EPA to drag out rulings over 10 years and the course of three Presidential administrations.

A dissenting opinion cited to a Second Circuit Court of Appeals that held otherwise, which means the legal issue over how the EPA handles petitions to ban chemicals could be decided by the Supreme Court in the near future.

Political commentary

Reporting by Mike Elk of Payday Report raised concerns during the Obama administration about how the chemical industry was weakening and delaying EPA rule making on chemicals and workplace safety.  The opinion by Judge Rakoff describes how the Obama administration lollygagged in addressing the risks of chlorpyrifos despite two scientific findings by the agency about the danger of the chemical. There is a disturbing irony in the Obama administrations failure to protect farmworkers from chlorpyrifos. Obama’s slogan during his 2008 campaign “Yes We Can” was a translation of the phrase “Si Se Puede” used by farm worker union organizer Cesar Chavez.  Obama said early in his administration that “Elections have consequences.” One consequence of his administration was that a dangerous chemical known to be harmful to farmworkers and their families remained in use through the eight years of his administration.

As mentioned earlier, a state court jury in California found that the herbicide Round Up caused cancer for a California man and entered a $289 million dollar judgment against Round Up manufacturer, Monsanto. In contrast to the plodding, ineffective and lobbyist-driven administrative process that went on for for over a decade without resolution over chlorpyrifos, a citizen was able to get justice against a major corporation from a jury in state court. The contrast between the ongoing  chlorpyrifos debacle and the verdict in the Round Up case should re-enforce the importance of the Seventh Amendment right to trial by jury.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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