Things you should know

Trump-era independent contractor rule reinstated

In Coalition for Workforce Innovation et al. v. Marty Walsh in his official capacity as Secretary of Labor et al., a federal court in Texas ruled that withdrawal of a rule that made it easier for businesses to classify workers as independent contractors instead of employees entitled to benefits was "arbitrary and capricious" and violated the Administrative Procedure Act. For now, the rule, which applies an economic-reality test that considers whether the worker operates his or her own business or is economically dependent on the hiring entity, is in effect. The DOL may appeal.

Updated Workers' Compensation Medicare Set-Aside (WCMSA) Reference Guide

The Centers for Medicare and Medicaid Services (CMS) has released an updated Workers' Compensation Medicare Set-Aside (WCMSA) Reference Guide (Version 3.6, March 15, 2022). Among other things, updates to Section 4.3 state that its EBMSA/non-submit MSA policy as stated in Section 4.3 applies to "all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022" and that this policy is not intended to affect settlements not meeting CMS's WCMSA review thresholds.

Report: The State of Safety in High Hazard Work Environments

A new report from Foresight Risk and Insurance Services surveyed workers across the construction, industrial, manufacturing, and agriculture sectors on their personal safety at work and their company's safety practices. While safety was viewed as a priority for both companies and workers, 68% of workers say they would like to receive better safety training on protocols related to their jobs and 53% report it takes one month or longer to resolve a safety hazard.

Some workers, primarily those in the agriculture sector, reported having felt pressured to bend safety rules. In reporting safety hazards or incidents, most companies are still using paper-only for safety documentation, but more have moved to digital for conducting field safety inspections. Workers feel that digitization has a positive impact in reducing workplace incidents.

Guidance on retaliation under FSLA and FMLA

The DOL released guidance that gave specific examples of what constitutes unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and visa programs. The guidance shed more light on when no-fault attendance policies under the FMLA cross the line and violate the law.

WCRI conference highlights State of the States: Selected Findings

The Workers Compensation Research Institute's (WCRI) analysis focused on non-COVID-19 claims with dates of injury both before and after March 2020 and those through early 2021. According to Risk & Insurance here are some of the findings:

• Of the states studied, only four saw indemnity benefits increase by less than 3% per year for the period between 2019/2020-2020/2021.
• Only Indiana saw a decrease in indemnity costs of 2.7%.
• Minnesota saw the highest increase in indemnity costs during this period - jumping 18%.
• Every state studied also experienced an increase in the duration of temporary disability in 2020.
• Increases in temporary disability duration ranged from one percent in Louisiana to 11% in Wisconsin.
• Prior to the period from 2019-2020, temporary disability duration was decreasing in five states: North Carolina, Texas, Arizona, Pennsylvania, and California.

Researchers attributed the increases in temporary disability duration to care delays caused by the pandemic, concerns over the virus, and a lack of childcare that caused people to delay returning to work, and other pandemic-related factors.

Expired documents will no longer be acceptable for I-9

Beginning May 1, employers will no longer be able to accept expired identity documents when verifying an employee's work eligibility on Form I-9. In addition, employers are required to update by July 31 the I-9s of current employees who presented expired List B documents between May 1, 2020, and April 30, 2022.

Hotel bed lifting systems can reduce housekeepers' injuries

Hotel beds with lifting systems can help reduce injuries among housekeepers by at least half, according to a recent study from Spain's Balearic Institute of Occupational Safety and Health. In 2019, housekeepers in the Balearic hospitality industry experienced around 27% of all work-related injuries. Of those, more than a third were caused by overexertion, with back injuries being the most common.

Micro-exercises during working hours can help reduce long-term sickness absences

A recent study from Denmark that surveyed over 70,000 workers between 2012 and 2018 found that micro exercises - brief and simple exercise bouts - could potentially prevent long-term sickness absence (LSTA). Importantly, age, sex, and education did not affect the effectiveness of micro-exercise in reducing LTSA, and a reduced risk of long-term sickness absence was observed when the respondents engaged in micro-exercise during work hours, but not after hours. In trials of 10-15 minutes of micro-exercise with elastic resistance bands performed three times a week during work hours, the researchers also observed improved psychological and social factors, such as better social climate, feelings of vitality, and the ability to work together in teams.

State News

California

• Workers' Compensation Insurance Rating Bureau (WCIRB) submitted a proposed September 1 regulatory filing that includes a provision that would start including the cost of COVID-19 claims in employers' experience rating as well as the termination of special rules adopted in response to the pandemic. This will only impact policies effective on or after 9/1/22. Nothing will be changed retroactively.
• The Division of Workers' Compensation resumed in-person hearings March 21 at all district offices except Eureka. In-person hearings will consist of trials, lien trials, expedited hearings, and Special Adjudication Unit trials only.
• A Workers' Compensation Institute (CWCI) study on the Independent Medical Review (IMR) process used to resolve workers' comp medical disputes shows that the number of IMR decision letters hit an all-time low in 2021 as pharmaceutical disputes - especially those involving opioids - have continued to decline since the state adopted evidence-based chronic pain and opioid guidelines and a prescription drug formulary.

Florida

• The Division of Workers' Compensation shows the number of COVID-19 claims increased from December to January but dropped 90% in February. Nearly half of all COVID-19 claims were completely denied or partially denied. Employers and insurers have paid more than $183 million on the 70,907 COVID-19 claims that have been filed since the pandemic started. Claims from self-insured governmental agencies were slightly less than one-half of all claims but represented almost twice as much in benefits - $107.8 million.

Georgia

• A proposal to make post-traumatic stress disorder compensable for first responders has failed at the committee level.

Illinois

• The Compensation Committee announced that all arbitration cases, including trials and in-person special settings scheduled for Urbana, are being held at a new hearing site in Champaign - I Hotel and Illinois Conference Center, 1900 S. First St.

New Jersey

• NJ Governor Phil Murphy announced the signing of Executive Order No. 292, which lifts the COVID-19 Public Health Emergency. The order, effective March 7, ends the liberalized period that established a rebuttable presumption in favor of the employee as to the causal relationship between employment and COVID-19.

New York

• The 2021 Workers Compensation Fraud Annual Report notes new workers compensation claims rose slightly in 2021 but continued to be reported at more than 18% lower than pre-pandemic levels. In 2021, WCFIG received 1,118 fraud complaints in total and dismissed 492 matters as unsubstantiated.