Things you should know

Disturbing findings from the Census of Fatal Occupational Injuries - highest number of fatalities in 12 years

Key findings from the 2019 Census of Fatal Occupational Injuries:

• The 5,333 fatal occupational injuries in 2019 represent the largest annual number since 2007.
• A worker died every 99 minutes from a work-related injury in 2019.
• Fatalities among workers age 55 and over increased 8 percent from 1,863 in 2018 to 2,005 in 2019, which is the largest number ever recorded for this age group.
• Hispanic or Latino worker fatalities were up 13 percent to 1,088 in 2019-a series high since 1992.
• Workplace deaths due to suicides (307) and unintentional overdoses (313) increased slightly in 2019.
• Fatalities in the private construction industry increased 5 percent to 1,061-the largest total since 2007.
• Driver/sales workers and truck drivers incurred 1,005 fatal occupational injuries, the highest since this series began in 2003.

End of FFCRA could have implications for comp claims

The new COVID-19 relief package did not extend requirements for employers to provide emergency paid sick leave or emergency paid family and medical leave under the Families First Coronavirus Response Act (FFCRA) past the original Dec. 31, 2020 expiration date. Although employers can use the FFCRA tax credit until March 31, 2021 if employers voluntarily continue to provide FFCRA paid leave benefits to their employees, the act did not increase the amount of leave available to employees, so employers cannot claim the tax credit for employees who have already utilized all of their FFCRA leave entitlement.

Some experts suggest that workers infected with the virus or forced to quarantine over possible exposure used paid sick leave instead of filing workers' compensation claims. Employers should be aware of this, as well as state and local leave laws.

New law requires Medicare to provide beneficiary status

One of the continuing resolutions to keep the government operating made it easier for comp insurers to avoid lawsuits in some Medicare set-aside plans. Under the Provide Accurate Information Directly (PAID) Act, the Centers for Medicare and Medicaid Services (CMS) must provide applicable insurance plans, including workers' compensation, access to Medicare beneficiary enrollment status in Medicare Advantage and Part D Prescription Drug plans. Currently, there is no such centralized process or system for insurers to obtain this information and Medicare Advantage Plans can sue insurers for "double damages" under the MSP in relation to their recovery claim.

The CMS has until December 11, 2021 to implement the act.

DOL issues guidance on telemedicine visits to support FMLA leave as well as electronic posting of notices

Earlier in the pandemic, the DOL had allowed telemedicine visits under the FMLA through December 31, 2020, and new guidance now makes the concept permanent. The visit must be an examination, evaluation, or treatment by a health care provider, permitted and accepted by state licensing authorities, and performed by video conferencing (a telephone call, letter, email, or text message are not sufficient).

Additional guidance outlines when electronic posting of the general notice explaining the FMLA's provisions and providing information concerning the procedures for filing complaints of violations will satisfy the FMLA posting requirements is acceptable.

Lost productivity linked to workers' comp declines, but rises for FMLA leave and short-term disability

While lost productivity attributed to workers' compensation has declined over the past four years, workdays lost to short-term and long-term disability and Family and Medical Leave Act leave have increased, according to a study from the Integrated Benefits Institute. For the period 2015 - 2019, lost workdays per employee related to workers' compensation decreased by 13% each year while workdays lost to short-term disability and long-term disability leave increased by 11% and 3% each year, respectively. During those four years, lost workdays for sick leave increased 12%, and lost workdays due to FMLA leave increased 33%.

Violence against health care workers escalating - study

A study, The Persistent Pandemic of Violence Against Health Care Workers, in the American Journal of Managed Care highlights the problems of violence that are plaguing the industry and suggests steps that should be taken to decrease the incidence of violence against health care workers.

EPA final rule limits farmers' responsibility for protecting workers from pesticides

The Environmental Protection Agency has issued a final rule that revises the pesticide application exclusion zone requirement in the agency's standard on agricultural worker protection. The rule went into effect Dec. 29.

State News

California

• The Workers' Compensation Institute reported 10,305 COVID-19 claims were filed in November, more than double the 4,628 claims filed in October, and projects 17,312 claims will ultimately be filed in November, the most COVID-19 claims of any month since the pandemic began.
• A report by the Department of Industrial Relations found that pharmaceutical reviews accounted for more than a third of all independent medical review activity in 2019.
• The Workers' Compensation Insurance Rating Bureau reports that written workers' compensation premium dropped 12% in the first nine months of 2020 compared with the same period in 2019 and is expected to be the lowest since 2012 for the entire calendar year.

Florida

• The number of COVID-19 related workers' comp claims declined again in November according to the December report from the Department of Financial Services, Division of Workers' Compensation. Paid benefits since the beginning of the pandemic are over $46 million and represent 7.6% of total benefits paid.

Minnesota

• Gov. Tim Walz has signed a bill, H.R.19, that makes several changes to the state's workers' compensation system, including new reporting requirements, limits on some medication expenses, and an extension of an occupational disease presumption to more correctional workers.

New York

• Gov. Andrew Cuomo vetoed a bill that would have made massage therapy compensable under workers' compensation.

North Carolina

• The North Carolina Industrial Commission reports seven new rules took effect December 1, on denial of death benefits, first reports of injury, reporting of income by workers, leave periods for attorneys, and other workers' compensation matters.

Pennsylvania

• Gov. Tom Wolf is seeking the transfer of $145 million from the state's workers' compensation security fund to distribute to businesses adversely affected by the COVID-19 pandemic. The transfer requires legislative action.

Tennessee

• The Department of Commerce and Insurance approved a 9.2% overall loss cost decrease beginning on March 1, 2021, on new and renewal policies.