WORK RELATED INJURIES- OBLIGATIONS AND ACTIONS TO AVOID INJURY TO YOU

William A. Miller, Esq.

Partner Higgs, Fletcher & Mack, LLP 401 West A Street, Suite 2600 San Diego, California 92101 (619) 595-4225

THE ROADMAP FOR TODAY- THE ROAD TO, AND FROM, A WORKPLACE INJURY

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I.

GENERAL OVERVIEW OF LAWS REGARDING WORKPLACE SAFETY

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II. EMPLOYER OBLIGATIONS FOR WORKPLACE SAFETY PRECAUTIONARY/PREVENTATIVE MEASURES

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III. EMPLOYER OBLIGATIONS ONCE AN INJURY OCCURS

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IV. AVOIDING ADDITIONAL CLAIMS ARISING FROM WORKPLACE INJURIES

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V.

STEPS TO MINIMIZE LEGAL CLAIMS FROM WORKPLACE INJURIES

I.

GENERAL OVERVIEW OF LAWS REGARDING WORKPLACE SAFETY

• A.

General

• 1. CA-OSHA Regulations • 2. Federal OSHA Regulations • 3. CA Labor Code, CA Health & Safety Code, CA Gov’t. Code, CCRs, CFRs etc.

• 4. Generally CA OSHA Regulations Govern, But More Specific Federal Can Supersede

• 1. CA Occupational Safety and Health Act of 1973 – Enacted to Assure “Safe and Healthful Working Conditions for All CA Working Men and Women” – CA Labor Code Section 6300 et seq.

– General Industry Safety Orders (GISOs) Apply to All CA Employers:  Generally Provide Requirements for Training of Employees, Working Conditions, Reporting and Record Keeping for Workplace Injuries   General Duties of Employer at CA Labor Code Section 6400 et. Seq.

Apply to You Even if “Temp” or Per Diem Employee – Special Orders:   Provide Additional Requirements for Specific Industries or conditions E.g., “Bloodborne Pathogens” (8 CCR Section 5193)

• 1. CA Occupational Safety and Health Act of 1973 (cont’d) – Where to Find the Regulations?

 Specific Regulations in Title 8 of CA Code of Regulations  Regulations Also Found at Division of Occupational Safety and Health Website: www.dir.ca.gov/samples/search/query.htm

– Enforced By CA Division of Occupational Safety and Health (“DOSH”) – Violations Enforced by Statutory Fines, Shut Down, Civil Liability  CA Labor Code Section 2698- Private Attorneys General Act Employees Can Recover 25% of Penalties Assessed by CA-OSHA

• 2. Federal Occupational Safety and Health Act of 1970 – Enacted “To Assure So Far as Possible Every Working Man and Woman in the Nation Safe and Healthful working Conditions” – 29 USC Section 651 – Specific Regulations in 29 CFR Section 1910 et. Seq.

– Enforced By US Department of Labor Through Federal Occupational Health and Safety Administration – Fed vs. CA State Apply?

 Fed-OSHA Governs to Extent Provides Greater Protection to Employees, or Specific Requirements Not Covered by CA-OSHA – Violations Enforced by Statutory Fines, Shut Down, Civil Liability

II.

EMPLOYER OBLIGATIONS FOR WORKPLACE SAFETY- PREVENTATIVE MEASURES

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A. General-

• 1. Failure to Comply Creates Additional Liability Beyond WC Claim • 2. Literally Too Numerous To Summarize All  Employee Training      Protective Equipment, Opportunity for Vaccinations, etc.

Periodic Inspection of Workplace for Hazardous Conditions Postings/Written Notices to Employees Timely Investigations of Complaints or Qualifying Injuries Other- Record-Keeping, Reports, etc.

• 3. Securing Insurance for Compensation of Workplace Injuries   Required by CA Labor Code Section 3700 Insurer vs. Self-Insured

II.

PREVENTATIVE MEASURES (Cont’d)

• 4. Required Standards/Obligations for Specific Hazardous situations:  Preventing and Controlling Exposure to Aerosol Transmissible Disease (ATDs) 8 CCR Section 5199  Exposure to Bloodborne Pathogens (“Sharps”)- 8 CCR Section 5193  Comply with Process Safety Management (PSM) Plan- if Sufficient Quantities of Acutely Hazardous Materials (See 8 CCR § 5189)  Others • 5. Tip: Injury and Illness Prevention Program (IIPP)    Required by CA Law Can Prevent Injuries Adverse Potential- Source To Identify Violations in Workplace Safety by OSHA and Attorneys

II.

PREVENTATIVE MEASURES (Cont’d)

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B. Injury and Illness Prevention Program (IIPP)-

• 1. Required of All Employers- 8 CCR Section 3203  Must Be in Writing Covering Specific Requirements (If <20 Employees, Then Maybe Modified Reqmts)  Applies for “Temp” or Per Diem You “Directly Supervise”  “Loaned” or “Shared” Employees to Another Facility- Primary vs. Secondary Employer Analysis (Both Can have Obligations/Liability and Primary/Lending Employer Additional Duties to Inspect Secondary etc.)  Independent Contractors- “Control” and “Directly Supervise”?- If Yes, then Can Have Obligations/Liability

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B. Injury and Illness Prevention Program (IIPP)- (Cont’d)

• 2. IIPP Requirements  ID Person Responsible for Implementation of IIPP  Contain a System to Ensure Employee Compliance (e.g., Positive Incentives, Training Programs, Employee Discipline Procedures)  System to Communicate Occup. Safety and Health Issues  System for Inspections for Hazards- Periodic, and After Incident  Procedure for Investigating Injuries  Method for Abatement of Hazards Upon Timely Basis  Provisions re Training and Instruction of Employees (Including Supervisors)  Record Keeping Plan- At Least 1 Year for Inspections

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B. Injury and Illness Prevention Program (IIPP)- (Cont’d)

• 3. Sample Model Programs   Go To: www.dir.ca.gov/dosh/PubOrder.asp

See Also: www.dir.ca.gov/dwc/dwc_home_page.htm

(Great Website For Direction and FAQs re CA OSHA and WC)

III. EMPLOYER OBLIGATIONS ONCE AN INJURY OCCURS

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A. Overview/The Speed Bumps-

• 1. Actions Required Depend on:    Whether an Employee?

Nature and Severity of Injury/Illness Injury “Arises Out of Employment”?

• 2. Procedures for Workplace Claims/Injuries   Obligations to the Employee Reporting Requirements and Timely Forms

III. EMPLOYER OBLIGATIONS ONCE AN INJURY OCCURS (Cont’d)

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B. Initial Analysis Regarding Injury/Illness-

• 1. Rights/Obligations Dependent Upon if “Employee”… – WC and OSHA Benefits/Obligations Owed to Employee but Generally Not Independent Contractor – “Employee” Defined- CA Labor Code Section 3351 – Factual Analysis by Court – WCAB Liberal Interp. (RJ/CE) and Substantial Risk if Misclassify- Statutory Penalties, Civil Liability, Criminal Liability – Factors Courts Consider to Determine if “Employee”:   Control How Job Performed, Rather than Result The Method of Payment- i.e., by Time or the Job   Contractor Provides Own Equipment Other Factors

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B. Initial Analysis Regarding Injury/Illness- (Cont’d)

– Note: OSHA Scenarios of “Joint Employment” or Primary/Secondary Employer   Primary Employer- Who “Controls” and “Directly Supervises” Primary Employer Generally has Duty of Reporting Requirements, Notices to Employee, Investigation, Abatement etc.

 Secondary Employer May Have Similar Duties – Note: WC Scenarios of “Joint” or “Special Employment”   Sharing of Employees at Facilities Both Can Have Responsibility to Employee • 2. “Injury” Definitions/Ramifications : – Worker’s Compensation Benefits and Obligations  “Injury” Defined as “Any Injury or Disease Arising Out of the Employment…”  More Broad than CA OSHA “Injury” Trigger

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B. Initial Analysis Regarding Injury/Illness- (Cont’d)

       Can be Specific (i.e., Occurring as Result of Single Incident or Exposure) Can be “Cumulative” (i.e., Repetitive Mental or Physically Traumatic Activities Occurring Over Time) Can be Mental or Psychiatric Includes Medical Malpractice in Treatment of Workplace Injury Workplace Violence or Trauma From Workplace Violence Not Include Injury to Employee Reputation Burden of Proof Generally on Employee – CA OSHA: “Death” or “Serious Illness or Injury”  Death- Questions?

   “Serious Illness or Injury”- “Means Any Work-Related Injury or Illness Requiring Hospitalization for More Than 24 Hours (Other Than for Observation) or any Serious Degree of Permanent Disfigurement Caution: the Later-Developing Condition- Duty to Act/Report Not Include Injury Caused by Criminal Act or Accident on Public Street or Highway

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B. Initial Analysis Regarding Injury/Illness- (Cont’d)

• 3. “Arising Out of Employment”…WC Benefits and Obligations: – Must Be Causal Connection Between Employment and Injury – Must Arise in the Course of Employment  Look to Where Occur, When Occur, In Furtherance of Job Duties?

   “Coming and Going” Rule- Generally No Claim Commuting “Special Mission” Rule- Can Be Right to Benefits (e.g., Donuts, Bank Deposits) Picking Up Paychecks- Could Be if Not Too Remote in Time From Work, and Not Just for Convenience of Employee – Factual Analysis by Court

III. EMPLOYER OBLIGATIONS ONCE AN INJURY OCCURS (Cont’d)

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C. Procedures for Workplace Claims/Injuries-

• 1. Obligations to the Employee:       Necessary Medical Treatment and Care Provision of Information as to Rights and Eligibility for Benefits Accommodation for Injuries/Illness Investigation and Abatement of Hazards Access of Medical Records to Employee Observance of Rights to Privacy • 2. Reporting Requirements and Timely Submission of Forms/Reports   Worker’s Compensation Forms to Employee and Insurer CA OSHA and/or Fed OSHA Reports and Forms

III. EMPLOYER OBLIGATIONS ONCE AN INJURY OCCURS (Cont’d)

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D. Specific Actions/Obligations at Time of Injury-

• 1. Instruct/Provide Medical Care If Needed  Pre-Elected Medical Provider vs. MPN  Educate Employee to Tell HCP Work Related Injury • 2. Report Death or “Serious Injury or Disease” “Immediately” (Within 8 Hours) to DOSH District Office • 3. Investigate Incident/Condition • 4. Undertake Abatement Action Commensurate with Severity of Hazard

III. EMPLOYER OBLIGATIONS ONCE AN INJURY OCCURS (Cont’d)

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E. Date of Injury +1-

• 1. Provide Employee WC Claim Form and Notice of Eligibility of Benefits within 1 Working Day of Notice of Injury/Illness   Provide Notice of Potential Eligibility for TD, PD, Med Care etc. See www.dir.ca.gov/dwc/DWCForm1.pdf

for Sample Form • 2. Provide Employee and WC Insurer with Copies of Dated Claim Form and Notice of Eligibility of Benefits (Completed by Employer) within 1 Working Day of Receipt of Form Back From Employee

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E. Date of Injury +1- (Cont’d)

• 3. Authorize Payment of Med Tx Up to $10K Upon Receipt of WC Claim Form From Employee     Must Authorize within 1 Working Day of Receipt of WC Claim Form From Employee Care Required Even While Investigation Pending Care Required Until Reject Claim (90 Day Max to Reject) Employee Pre-Designate Primary Treating Physician (PTP)? If Not, Employer Choice or MPN • 4. Employer’s Report of Occupational Injury or Illness (Form 5020)    For Injuries/Illness Resulting in Lost Time Beyond Date of Injury/Illness or Required More than “First Aid” Prepared by Employer Filed by Employer with WC Insurer within 5 Days of Notice of Injury/Illness

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E. Date of Injury +1- (Cont’d)

• 5. Prepare “Injury Log” (CA-OSHA Form 300)  For “Recordable Injuries or Disease”: i.e., Death, Loss of Consciousness, “Significant Injury or Disease” , Need for Restricted Work or Transfer, Need for Med Tx Beyond First Aid, or Loss of 1 or More Days From Work  Note: If “Privacy Concern Case”, enter “Privacy Case” Instead of Employee Name on Form (Keep Separate Confidential Log of Case Numbers and Employee Names)  “Privacy Concern Case” if involve: intimate body part or reproductive system, arising from sexual assault, mental illness, HIV, Hepatitis, Tuberculosis, Needlestick or Contaminated Cuts, or When Employee Requests Privacy  Prepare within 7 Calendar Days of Injury

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E. Date of Injury +1- (Cont’d)

• 6. Prepare “Incident Report” (CA-OSHA Form 301)  Prepare for “Recordable” Injury/Illness  Prepare within 7 Calendar Days of Injury • 7. Provide Employee Notice of Potential FMLA and CFRA Eligibility  Provide Form to Employee  If Employee Elects, Employer Fills Out and Provides Back to Employee

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E. Date of Injury +1- (Cont’d)

• 8. Prepare “Year-End Summary” (CA-OSHA Form 300A)  Prepare for “Recordable” Injury/Illness  Must Post in “Conspicuous Place” for Employees  Post Typically Feb 1-April 30  Mail Copy to Employees that Don’t Report to Work at Least Weekly • 9. Good Faith Efforts to Accommodate Any Disability  Minimize Discrimination Claims  Reduce Potential Disability Benefits Amounts

IV. AVOIDING ADDITIONAL CLAIMS ARISING FROM WORKPLACE INJURIES

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A. Issue Spotting: The Issues to Watch For-

• 1. Discrimination Claims Arising From “Disability” • 2. Retaliation

IV. AVOIDING ADDITIONAL CLAIMS (Cont’d)

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B. Discrimination-

• 1. General Background on the Issue – Federal and State Statutes Prohibit “Discrimination” for Qualified “Disabilities” – Can Apply to “Disabilities” That Arose From a Workplace Injury   Whether Injury Occur at a Former Employer Or if Injury Occur During Your Employment of Employee – Statutes Can Create Duty to Undertake Efforts to Provide “Accommodations” (Duties, Schedule etc.) for Disabled Workers – Penalties Include Civil Claims for Discrimination and Wrongful Termination

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B. Discrimination- (Cont’d)

• 2. Federal Statutes: – Rehabilitation Act of 1973 [29 USC § 701 et seq.] – Americans with Disabilities Act of 1990 (ADA) [42 USC § 12101 et seq.] – Family and Medical Leave Act of 1993 (FMLA) [29 USC § 2601 et seq.] – Other • 3. State Statutes: – Fair Employment and Housing Act (FEHA) [CA Gov’t. Code § 12900 et seq.] – CA Family Rights Act (CFRA) [CA Gov’t. Code § 12945 et seq.] – Other

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B. Discrimination- (Cont’d)

• 4. Requirements of ADA, Rehab Act, and FEHA – Prohibit Discrimination of “Qualified Individuals” with a “Disability”, Who Otherwise Could Perform the “Essential Functions” of the Job, With or Without “Reasonable Accommodations”, to the Extent the Individual Would Not Endanger the Safety or Health of Self or Others – ADA Applies to Employers with 15+ Employees – Rehab Act May Have No Limit on # Employees, But Applies Only to Federal Agencies, or Entities that Receive Federal Funding – FEHA Applies to Employers with 5 Employees, and is More Broad in Application and Requirements on Employer

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B. Discrimination- (Cont’d)

• 5. General Elements for Discrimination Claim:     1) An “Employee”/Prospective “Employee” (i.e., Generally Not an Independent Contractor) 2) Who Has a “Disability” 3) Is a “Qualified Individual” Capable of Performing the Essential Functions of the Job either With, or Without, Reasonable Accommodations, AND 4) Was Unlawfully discriminated Against Because of the Disability – Burden of Proof for Above Elements on Plaintiff – Generally: Employer Not Required To Provide Accommodations if Not “Disabled”, Not “Qualified”, Undue Hardship, or Safety Issue  Note- Burden of Proof for Defenses (e.g., No Reasonable Accommodation, Undue Hardship etc.) on Employer

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B. Discrimination- (Cont’d)

• 6. What Constitutes a “Disability”?

– Case by Case Analysis on Facts – “Disability” Definition (Generally):  A Physical or Mental Impairment that Limits One or More “Major Life Activities” (Note: ADA Requires “Substantial Limitation”)  Can Also Include Being Regarded as Having Such Impairment  For FEHA, Temporary Disability May be “Disability” (ADA?)  Examples: Orthopedic, Visual, Hearing, Speech, Carpal Tunnel Syndrome, HIV and AIDS, Possibly Alcohol and Drug, Contagious Diseases etc.

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B. Discrimination- (Cont’d)

• 7. Reasonable Accommodations: – Generally, A Legal Duty to Provide   With Injured Employee, Duty to Provide Even if Not Ask No Particular Form Required by Employee – “Accommodation”   Change to Ordinary Work Rules, Facilities, Schedule, Duties etc.

On-going Duty- Not Just One Try – “Reasonableness” is Case By Case Analysis – Examples of “Reasonable” Accommodations:   Improve Facilities or Equipment Job Restructuring (Changes in Work Schedule, Re-Allocating Non Essential Job Functions, Altering When Essential Job Functions Occur)   Transfer or Reassignment (Lesser Job Only if No Vacant Similar Jobs) Offer Leave of Absence- Paid or Unpaid (If No Undue Hardship)

• 7. Reasonable Accommodations: (Cont’d) – Examples/Guidelines for “Reasonable” Accommodations:   EEOC Guidelines (For ADA, and Likely FEHA) See: www.eeoc.gov

– What is NOT Required:       Create New Job Change “Essential Functions” of Job Require Other Employees to Do “Essential Functions” Leave Job Open Indefinitely “Undue Hardship” on Employer (Factual) Accommodation with Risk of Health/Safety to Employee or Others

• 8. Leaves of Absence: – Paid, or Unpaid, Leave May be Required “Reasonable Accommodation” Dependent On Likelihood Return to Work – Factual Analysis on Case by Case Basis  Undue Hardship on Employer? (Less Likely > Employees)     Unlikely Return to Work = Less Likely Need Keep Job Open Length of Leave Affected by Prognosis (Duration of Tx etc.) Generally NOT Required Keep Job Open Indefinitely Caution: FMLA or CFRA – Leave Under FMLA or CFRA    Work Injuries Can Qualify as Medical Conditions Giving Right to Unpaid FMLA or CFRA Leave Generally Must Hold Position Open 12 Workweeks Safe Approach is Offer FMLA or CFRA Leave, Follow Notice and Documentation Reqmts, and Keep Documentation

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B. Discrimination- (Cont’d)

• 9. “Interactive Process” Requirement – General Duty to Pursue “Interactive Process” With Employee  Process to Determine if “Reasonable Accommodations” Exist  Can Request Relevant Medical and Other Information to Ascertain What Physical/Mental Limitations Exist  Generally Duty to Make “Timely” and “Good Faith” Offer of “Reasonable Accommodations ”  If “Good Faith” Offer Made, and Employee Rejects: May Absolve Duty to Keep Job Open and Decrease Amount of Benefits Due Employee  If Employee Request for Particular Accommodation Denied, Risk of Discrimination Claim and Penalty of Increased Benefits Due  Keep Record of Offers Made

IV. AVOIDING ADDITIONAL CLAIMS (Cont’d)

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C. Retaliation-

• 1. General  State and Federal Prohibitions From “Retaliating” for Claims for Benefits, Reporting CA or Fed OSHA Violations, Reporting Discrimination etc.

  ADA, FEHA, CCRs, CFRs etc. “Retaliation” Includes Items Such as Failing to Pay Employees to Participate in OSHA Investigations, Delay in Benefits etc.

• 2. CA Labor Code Section 132a   Expressly Prohibits an Employer from Discharging, or Otherwise Discriminating Against, an Employee Who has Filed WC Claim, Has Expressed Intention to File WC Claim, or Received a WC Settlement or Award Imposes Additional Statutory Duty to Offer “Light Duty” Work if Possible

V.

STEPS TO MINIMIZE LEGAL CLAIMS FROM WORKPLACE INJURIES

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A. Pre-Injury-

• • • • • • • 1. Have Insurance 2. Create IIPP 3. Implement The IIPP (That Means Do It) 4. Post Required Written Notices (OSHA, CFRA, FMLA, Work Injuries etc.) 5. Perform Timely Inspections 6. Employee Orientation/Training 7. Record Keeping

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B. Injury and Beyond-

• • • • • • • • • • • • • 1. Offer Medical Treatment 2. Provide Employee Requisite WC Forms and Notice of Eligibility of WC Benefits 3. Place WC Insurer, Risk Management and Legal Counsel on Notice of Claim 4. Notify CA/FED OSHA if “Reportable” 5. Prepare and/or File Requisite OSHA Forms/Reports 6. Provide WC Insurer with Claims Form From Employee 7. Timely Investigation and Hazard Abatement 8. Enter Into “Good Faith” Interactive Process for Work Accommodation 9. Provide Employee Notice of, and Forms for, FMLA and CFRA Rights 10. Keep Records- Communications with Employee/Agent, OSHA Reports/Logs (5 Years), Offers of Accommodations, Investigations, Hazard Abatement etc.

11. Medical Records- Access and Privacy Issues 11. No “Retaliation” 12. No Discrimination- Disabilities or Exercise of Rights

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C. Forms, FAQs, and “Fun”-

• http://www.dir.ca.gov/dwc/forms.html

 Information and Forms for WC Issues • http://www.dir.ca.gov/  Information and Forms for CA Department of Industrial Relations • http://www.dir.ca.gov/dosh/  Web Site of CA Division of Occupational Safety and Health • www.dir.ca.gov/dosh/PubOrder.asp

 Sample Injury and Illness Prevention Program • www.dir.ca.gov/samples/search/query.htm

 CA OSHA Special Orders/Regulations from CCRs

Thank You