Last updated 4 days ago
In the world of workers’ compensation, carpal tunnel syndrome (CTS) presents a unique challenge when it comes to the payment of claims. Over the past few decades, the number of employees filing workers’ comp claims for CTS has risen dramatically. This is primarily thought to be caused by a more recent association between CTS and work-related practices. However, many physicians and experts agree that work-related factors are rarely the sole cause of CTS, raising questions about just how much you, as the employer, should have to pay for a claim.
Is it Work Related?
For an injured employee to make a successful claim, their injury must be work related. For injuries that occur as a single event, it is easy to establish causation as it relates to work. For injuries that slowly develop over time as a result of work related exposure, establishing the connection can be much more complicated. Studies have increasingly shown that there are a limited number of work-related factors that can truly be the sole cause of CTS. In most cases, the development of CTS is primarily caused by outside factors. Unfortunately for employers, many employees’ preexisting conditions are not realized until aggravated by working conditions. When this happens it makes it difficult for employers to name outside factors as a possible cause, and they regularly end up paying for the effects of a condition they are not completely responsible for.
What Can Be Done?
While some states are currently reevaluating how workers’ comp coverage pays CTS claims, for the foreseeable future it will be up to employers to take aggressive, preventative measures in order to protect themselves. While CTS may be influenced by genetics and other personal factors, controlling or eliminating workplace exposures that can aggravate these preexisting conditions is essential in order to maintain workers’ comp costs.
Steps to Prevention
Start your efforts by focusing on past claims involving CTS. With these records you can identify the areas of your operation that show a high number of CTS-related incidents. Investigate working conditions and procedures in these areas, comparing them against recommended ergonomic practices. Using this information, develop training that educates employees on the proper ergonomic practices for their positions.
After you have established a program for CTS prevention, it is important that you monitor results on an ongoing basis. If you do not see an acceptable decrease in claim numbers, you may have to reevaluate certain aspects of your prevention program.
Maintain Solid Workers’ Comp Practices
Sometimes injuries happen regardless of the safeguards or safety programs you have in place. For those times, it is important that you have an effective policy in place that deals with workplace injury. From prompt reporting to an effective return to work program, Tooher Ferraris Insurance Group can provide the resources you need to build solid injury response programs.
For more information, call us today at 203.423.0043.
Last updated 7 days ago
Brought to you by Tooher Ferraris Insurance Group
On December 27, 2011, the Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) published The Hours of Service of Drivers Final Rule, which revises the hours-of-service (HOS) safety requirements for commercial truck drivers.
The final rule retains the current 11-hour daily driving limit. Major changes found in the rule include:
- Reducing, by 12 hours, the maximum number of hours a truck driver can work within a week from 82 hours within a seven-day period to 70 hours;
- Requiring truck drivers to take a break of at least 30 minutes before driving more than eight hours;
- Altering the definition of “on-duty time;” and
- Requiring truck drivers who maximize their weekly work hours to take at least two nights' rest from 1:00 a.m. to 5:00 a.m.
The effective date of the new definition of “on-duty time” is February 27, 2012. The compliance date of the other provisions is July 1, 2013.
This issue of the Tooher Ferraris Insurance Group Legislative Brief provides background and explanation of the new rule.
Background OF the rule
The FMCSA stated that the goal of the final rule is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers. Recent studies have demonstrated that long work hours can lead to reduced sleep and chronic fatigue. Fatigued drivers have slowed reaction times and a reduced ability to assess situations quickly.
Recent research has also linked long work hours and reduced sleep to a range of serious health effects, including obesity, high blood pressure, other cardiovascular diseases, diabetes and sleep apnea. These conditions not only shorten drivers’ lives, but also can result in substantial ongoing medical costs and put drivers’ medical certifications at risk. Commercial motor vehicle (CMV) drivers suffer from these conditions at a higher rate than the population as a whole.
The final rule is intended to reduce the likelihood of driver fatigue, fatigue-related crashes and fatigue-related health effects. Although crash rates have been falling, thousands of people are still injured and killed in truck crashes each year, including hundreds of truck drivers. This rule will address one of the causes of those crashes.
The FMCSA estimates that the benefits of the rule (a reduction in crashes and improved driver health) will outweigh the costs. It has stated that the cost of the rule represents a small fraction of 1 percent of trucking industry revenues and is the cost-equivalent of less than a 3-cent-a-gallon increase in the price of diesel fuel to the long-haul industry.
Changes Found in the Rule
As mentioned above, the final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct research and data analysis to further examine any risks associated with the 11 hours of daily driving time.
Maximum Weekly Hours
FMCSA’s new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver’s work week to 70 hours.
30 Minute Break
Truck drivers may not drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. The rule gives drivers flexibility in when and where to take the break. The rule only prohibits driving if more than eight consecutive hours have passed since the last off-duty period of at least 30 minutes.
For example, if a driver spends two hours loading at the beginning of the day, then has a 10-hour drive ahead, he or she must take the break no later than eight hours after coming on duty. The driver can, however, take the break earlier. If the driver takes a half-hour or more break at some point between the fourth and eighth hours after coming on duty, he or she can complete the remainder of the planned 10 hours of driving without another break. Meal breaks or any other off-duty time of at least 30 minutes qualify as a break.
Definition of On-Duty Time
Under the new rule, the FMCSA now excludes from the definition of on-duty time any time resting in a parked CMVor up to 2 hours in the passenger seat of a moving CMV, immediately before or after 8 consecutive hours in the sleeper berth.
Restart Rule
The new rule requires truck drivers who maximize their weekly work hours to take at least two nights’ rest from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period (168 hours).
Multiple restarts in each week would not generally be a problem because frequent 34-hour-long off-duty periods would leave little time in a given week to build up excessive duty hours. If, however, restarts are taken every six days, a problem does arise: under existing rules, alternating 14 hours on-duty and 10 hours off, a driver would reach 70 hours in less than five full days. After a 34-hour break, the driver could then begin this same cycle again, totaling 70 hours on-duty every six calendar days, for an average of almost 82 hours per calendar week. Limiting restarts to one every 168 hours prevents this excessive buildup of on-duty hours, while still allowing drivers to use the restart provision to their advantage and avoiding the complexity of special provisions for more frequent restarts.
Penalties for Noncompliance
Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.
Source: United States Department of Transportation
This Tooher Ferraris Insurance Group Regulatory Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.
Design © 2011 Zywave, Inc. All rights reserved.
Last updated 8 days ago
Brought to you by Tooher Ferraris Insurance Group
On April 23, 2012, the Equal Employment Opportunity Commission (EEOC) issued a final rule regarding age discrimination under the Age Discrimination in Employment Act (ADEA). The final rule amends the guidelines for a “reasonable factors other than age” (RFOA) defense for employers faced with a disparate-impact age discrimination claim.
The final rule became effective on April 29, 2012, and imposes new and more stringent requirements for employers attempting to use the RFOA affirmative defense.
ADEA DISPARATE-IMPACT CLAIMS
According to the ADEA, employers may not discriminate against prospective or current employees over the age of 40 on the basis of hiring, promotion, discharge and compensation, or terms, conditions, or privileges of employment. The ADEA prohibits both intentional discrimination and the adoption of seemingly neutral practices that have a disparate impact on older workers.
Older workers affected by an employment practice that has a significant disparate impact on members of their age group may bring an age discrimination claim against their employer. Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘‘reasonable factor other than age.’’ An individual challenging the employment practice must identify the specific employment practice that allegedly caused the disparity.
RFOA AFFIRMATIVE DEFENSE
An employer that is subject to a disparate-impact claim may use an affirmative defense that its employment decision was based on reasonable factors other than age. The final rule clarifies what factors may be considered reasonable and is intended to provide guidance about the application of the RFOA affirmative defense.
The EEOC uses specific criteria to examine whether a practice is based on a reasonable factor other than age. These criteria include, but are not limited to:
- Whether the factor is related to the employer’s stated business purpose;
- Whether the employer defined the factor accurately and applied the factor fairly and accurately, including whether managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
- Whether the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
- Whether the employer assessed the adverse impact of its employment practice on older workers; and
- The degree of the harm to the individuals within the protected age group, in terms of both extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
The employer’s affirmative defense does not have to be based on a specific factor or combination of factors for a differentiation to be based on reasonable factors other than age. In addition, the existence of a specific factor does not automatically prove the employer’s defense.
The EEOC has stated that, given the context-specific nature of the RFOA inquiry, it is not possible to specify every type of relevant evidence that would demonstrate the existence of one or more of these factors. Instead, all relevant evidence should be considered and what is considered relevant will vary according to the facts of each particular situation.
MORE INFORMATION
For more information regarding this EEOC Final Rule, please visit the Q&A section of the EEOC’s website about the ADEA final rule. For a copy of the final rule, see www.gpo.gov/fdsys/pkg/FR-2012-03-30/pdf/2012-5896.pdf.
This Tooher Ferraris Insurance Group Legislative Brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.
© 2012 Zywave, Inc. All rights reserved.
Last updated 9 days ago
Brought to you by Tooher Ferraris Insurance Group
On April 20, 2012, the Equal Employment Opportunity Commission (EEOC) issued a decision in Macy v. Holder. The decision paves the way for transgender individuals to file workplace sex discrimination charges with the EEOC.
The EEOC’s ruling provides plaintiffs the opportunity to pursue gender-identity related claims under Title VII’s prohibition of sex discrimination. The ruling also provides guidance for courts evaluating the claims of transgendered employees against their employers for sex discrimination.
BACKGROUND OF THE CASE
Mia Macy, a transgender individual, interviewed for an available position with the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF). Macy progressed through the hiring process, and she was informed that the position was hers if she passed a background check. Macy eventually announced that she was transitioning from a male to a female, and later was informed that the position with the ATF had been eliminated due to budget cuts. She discovered later that the position had been given to someone else.
Macy filed a formal complaint with the ATF’s EEO office, alleging discrimination based on sex, gender identity and sex stereotyping by the ATF. The EEO office refused to process her gender identity stereotyping claim under Title VII and EEOC regulations, claiming that the EEOC did not have jurisdiction to adjudicate gender identity discrimination claims. Macy appealed this decision to the EEOC, arguing that the EEOC has jurisdiction over these claims, and that separating her “sex discrimination” and “gender identity stereotyping” claims eliminated her transgender discrimination claims altogether.
transgender discrimination and title vii
Title VII prohibits employers from discriminating on the basis of race, color, religion, sex or national origin when making employment decisions. In this case, the EEOC determined that discrimination against employees for their transgender status falls within the protections of Title VII. Therefore, these claims may be adjudicated by the EEOC.
The EEOC’s decision centered on the Title VII definition of “sex.” The EEOC, relying on previous court decisions, including a 1989 Supreme Court decision, reasoned that any employment decision based on gender was prohibited, including any employment decision where there is discrimination based on an individual’s transgender status.
EFFECT ON EMPLOYERS
Ms. Macy’s complaint will now proceed back to the ATF’s EEO Office to be processed in accordance with the EEOC’s ruling. The outcome of her case has yet to be determined, but this ruling has already provided employers with yet another reason to avoid gender-based reasoning when making employment decisions. This ruling provides transgender individuals the ability to file sex discrimination claims under Title VII in the EEOC, and provides added authority to a growing number of decisions surrounding transgender individuals.
This Tooher Ferraris Insurance Group Regulatory Update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. © 2012 Zywave, Inc. All rights reserved. ZCE 5/12
