Study Finds Physical Medicine Reduces Opioid Use Among Injured Workers

physical therapy

Physical medicine treatments like physical therapy, acupuncture and chiropractic care correspond with reduced opioid prescription use among injured workers, a new study has found.

Workers who were treated using physical medicine while also being prescribed an opioid all received lower doses of prescribed opioids compared with workers with similar injuries who did not receive physical treatment, according to the study by the Workers’ Compensation Insurance Rating Bureau of California.

The study shows great promise for reducing opioid use among injured workers, who are all susceptible to the possibility of addiction if prescribed these high-powered painkillers for extended periods of time.

An enormous threat

Opioid overdoses have become one of the biggest public health threats in the United States over the past decade and the costs to the workers’ comp system have been tremendous. That’s because when an injured worker who has been prescribed opioids becomes addicted to them, the insurer will also have to pay for addiction treatment, which in turn increases the cost of the claim and has a negative impact on the employer’s workers’ comp rates.

The use of physical medicine has increased in California since 2014, when the state workers’ compensation fee schedule increased reimbursements for these treatments. The study found that since then, physical medicine has accounted for a larger proportion of total medical costs per claim.

But the increased expenditures may be worth it if opioids are also prescribed to injured workers. The Rating Bureau found that:

  • For claims involving physical medicine, there was a continuous and sharp decline (86%) in the utilization of both opioids and other pain medications.
  • Meanwhile, there was a rapid increase (70%) in the concurrent use of physical medicine treatments and medical treatments other than pain medications.
  • Among soft-tissue injury claims that had at least one opioid prescription within one year of the injury, those with early physical therapy had, on average, significantly lower doses (23%) of opioids prescribed than similar claims without early physical treatment.
  • Soft-tissue injury claims involving physical therapy during the first 30 days of the initial medical visit were less likely to initiate opioid use within one year of the injury, compared to similar claims without early treatment.
  • While chiropractic care was less frequently used on soft-tissue injury claims, its early use was found to be associated with a significantly lower probability of opioid use.

Increased contact beneficial

Some experts also say that increased contact with an injured worker can reduce the chances of them abusing these high-powered painkillers.

Physicians who treat injured workers tend to spend significantly less time with them compared to doctors treating group health plan patients, according to a report in the trade publication <i>Carrier Management</i>.

Having more one-on-one time with their treating physician, group health patients are often better educated about the types of treatment available to them, including opioid alternatives. As a result, these individuals are less likely to get a prescription that may not be the best treatment option for them.

Opioids can delay an injured worker’s return to work. Sadly though, workers who take opioids for more than three months usually don’t return to work at all, due to dependence or other side effects, according to a study by the American Psychiatric Association Foundation.

Not only that, but a person using opioids can pose a danger to themselves and others while on the job. And workers with a pain-medication use disorder miss an average of 29 days a year of work, according to the Centers for Disease Control.

The takeaway

If you have an injured worker, you can talk to your workers’ comp carrier’s claims adjuster about possible physical medicine approaches:

  • If there are opioids prescribed, talk to the insurer about how you can play a supporting role in trying to prevent the worker from spiraling into addiction.
  • To best reduce the chances of opioid abuse, there should be a collaboration between the claims adjuster, nurse case manager, treating physician and the employee.
  • The treating physician should continuously monitor the injured worker throughout the life of the claim, and the doctor should be in regular communication with the claims adjuster.
  • There are many alternatives to opioid treatment, including acupuncture, cognitive behavioral therapy, physical therapy, chiropractic treatment and yoga.

Controversial Law Suffers Early Legal Setbacks

discussion

California’s controversial independent contractor law suffered its first two legal setbacks in January after trucking firms and independent truckers were able beat back at the new law in court.

On Jan. 8, a Los Angeles County Superior Court judge ruled that AB 5 does not apply to independent truckers because they are covered by federal law.

And on Jan. 13, a federal judge extended a restraining order for the law to cover truckers as of Jan. 1 this year in a case brought by the California Trucking Association, seeking a preliminary or permanent injunction on the new law.

Since it was signed into law, AB 5, which took effect Jan. 1, has been highly controversial. It was mainly written in response to the gig-worker economy and targets companies like Uber and Lyft, whose drivers are classified as independent contractors.

AB 5 codified a 2018 California Supreme Court decision, in the Dynamex Operations West, Inc. vs. Superior Court of Los Angeles case, that set new rules for how to classify independent contractors.

The new law has put into place a stringent “ABC test” for determining the validity of independent contractor relationships. This is because one of the requirements, the “B prong,” prohibits companies from using independent contractors unless the worker was performing work “outside the usual course of the hiring entity’s business.”

Because of this broad reading of what does and does not constitute an independent contractor, the law has had a spillover effect on musicians, freelance writers and a host of other professions. Like truckers, many of the people in these professions want to keep their freelance status for fear of losing their work, which is exactly what has happened.

The Dynamex ruling and AB 5 essentially state that workers who perform the work the company is in business to do are in fact employees and cannot be paid as independent contractors.

The distinction is important because employees are eligible for additional benefits and protections, and employers have to pay additional taxes for employees. Employees have rights to minimum wage, overtime and sick leave, among other benefits.

The law has not only raised the hackles of businesses, but also of independent contractors. In the truckers’ case, independent truckers value their freedoms and they invest more than $100,000 in their rigs to do their jobs.

There are more legal challenges to the law. Freelance writers and photographers filed suit in December 2019, alleging that AB 5 unconstitutionally restricts free speech and the media. Uber and Postmates filed suit alleging that the law’s targeting of app-based workers and platforms violates the Equal Protection Clauses of the United States and California Constitutions.

On top of that, Uber and Lyft have pledged $30 million to back a ballot initiative to overturn the law.

The state of play

By now, if you use independent contractors you should have reviewed all of their statuses and that in order not to be considered employees, they:

  1. A) Must be free from the company’s control when they’re on the job;
  2. B) Must be doing work that falls outside the company’s normal business; and
  3. C) Must be operating an independent business or trade beyond the job for which they were hired.

 

Some of the occupations and companies impacted by the law are:

  • Ride-hailing and delivery services — Like Uber, Lyft, DoorDash and Postmates
  • Truck drivers — Heavy duty trucks, Amazon delivery trucks, some tow truck companies
  • Janitors and housekeepers — Commercial cleaning services
  • Health aides — Nursing homes, assisted living facilities
  • Freelance writers — Newspapers, websites and other media
  • Newspaper carriers — AB 5’s author agreed to delay implementation by one year in a concession to newspaper publishers.
  • Unlicensed manicurists — Licensed manicurists will get a two-year exemption.
  • Land surveyors, landscape architects, geologists
  • Campaign workers
  • Language interpreters
  • Strippers

How to Avoid Running Afoul of Wage and Hour Laws

wage and hour laws

With increases in litigation and federal and state enforcement of wage and hour laws, employers should make sure they comply with laws at both the federal and state levels.

All businesses should conduct periodic self-audits addressing the various wage and hour issues that are applicable to their workplace, in order to avoid the most common source of litigation by workers against their employers.

The goal of an audit should be to ensure that:

  • Exempt classifications are properly applied to each employee;
  • Exempt employees are paid on a “salary basis,” and that absence and leave policies comply with Fair Labor Standards Act (FLSA) and state law requirements regarding authorized and unauthorized deductions;
  • All forms of pay required to be included in overtime calculations are, in fact, included;
  • Non-exempt employees are paid for all hours worked;
  • Payroll records are complete and accurate and are retained for the proper amount of time; and
  • To the extent that state law requirements exceed those of the FLSA, such stricter requirements become the standard.

Any issues you identify in a periodic audit should be addressed immediately. At the same time, employment policies and actions should be implemented to create an environment in which compliance becomes part of your operational mindset.

The compliance strategies below cover some of the more common potential errors in the wage and hour context.

Meal and break laws

  • Implement written policies regarding meal and break times of non-exempt employees, and require approval for additional hours worked.
  • Implement measures to ensure that breaks are uninterrupted and employees taking such breaks are completely relieved from duty.
  • Tell supervisors not to assign tasks to non-exempt employees or allow them to perform work during their breaks.

Misclassification errors

  • At the time of hiring, inform employees of their exempt or non-exempt status, review job requirements and descriptions and describe in writing terms of their payment ― for straight time and overtime.
  • Periodically review duties performed by exempt employees after they are hired, to ensure they remain properly classified.
  • If you find you’ve made an exempt/non-exempt classification error for an employee, immediately consult your attorney to determine the appropriate remedial action, such as a change in status from exempt to non-exempt and making payments to such employee.

Overtime/off-clock errors

  • Adopt clear written policies on schedules and hours of work, and require approval for overtime work.
  • Adopt written policies requiring employees to report all time worked, and that you will pay for all time worked.
  • Train employees and managers on timekeeping policies and discipline for violations of policy.
  • Do not pressure employees to meet deadlines or perform assignments that can only be met by working off the clock. Workload expectations should be realistic.
  • Regularly review overtime records. If you find overtime was not paid, pay it immediately, even if work was not authorized.

Record-keeping mistakes

  • Implement and disseminate a timekeeping policy. The policy may, for example, require exempt and non-exempt employees to complete time sheets on a weekly basis, and to note meal and other breaks.
  • Require non-exempt employees to review and sign their time cards or time sheets every week, and to initial any changes made to them. This is your evidence if sued for an off-the-clock violation.
  • Retain time and payroll records for all employees. This will help you quickly correct any mistakes you uncover, and helps work with an employee who says they were short-changed on their paycheck. Also, accurate records are the best defense in a wage and hour complaint.

Car Crashes a Leading Cause of High-severity Claims

safe driving

Traffic accidents continue to be one of the leading causes of high-severity workers’ comp claims, according to research.

The National Council on Compensation Insurance found in a study that the cost of workers’ comp claims for accidents involving motor vehicles was 250% more than the average for all workplace accidents.

The study also found large differences between the cost of claims involving large trucks and passenger cars, as well as a reduction in the number of accidents during economic recessions. Besides a threat to other drivers on the road, any injuries your employees suffer while on driving for you on the job will end up being paid for by your workers’ comp policy as well any time missed from work due to the injury.

The study found:

  • While the frequency of truck fatalities is now very similar to the frequency of passenger vehicle fatalities, the frequency of non-fatal injuries is higher for passenger vehicles.
  • Motor vehicle accidents are more likely to result in multiple claims, and claims costs are higher for claims from multiple-claim events.
  • Motor vehicle accident claims are more severe than the average workers’ compensation claim.
  • Vehicle accidents affect a wide range of occupations other than just truckers.
  • Neck injuries are among the top diagnoses.
  • The duration of motor vehicle accident workers’ comp claims is more than a third longer than the average claim.
  • There is a significant amount of subrogation in workers’ comp traffic accident claims, with such claims accounting for more than half of all claims with subrogation.
  • Motor vehicle claims are three times as likely to involve a claimant attorney compared with other claims.
  • Distracted driving continues to be a leading cause of accidents and close calls.

Safe-driving rules for your staff

Encourage your employees to drive safely and abide by the safety rules you establish.

A good set of rules, drawn up by OSHA and which should be in writing for your employees, is:

  • Wear a seat belt at all times – driver and passenger(s).
  • Be well-rested before driving.
  • Avoid taking medications that make you drowsy.
  • Set a realistic goal for the number of miles that you can drive safely each day.
  • Do not use a cell phone while driving, unless you are wearing a hands-free device. Do not send text messages.
  • Avoid distractions, such as adjusting the radio or other controls, eating or drinking.
  • Continually search the roadway to be alert to situations requiring quick action.
  • Stop about every two hours for a break. Get out of the vehicle to stretch, take a walk, and get refreshed.
  • Keep your cool in traffic!
  • Be patient and courteous to other drivers.
  • Do not take other drivers’ actions personally.
  • Reduce your stress by planning your route ahead of time (bring maps and directions), allowing plenty of travel time, and avoiding crowded roadways and busy driving times.

Top 10 Laws and Regulations Affecting Employers in 2020 (Part II)

Top 10

6. Return of the individual mandate

A new law brings back the individual mandate requiring Californians at least to secure health insurance coverage or face tax penalties. This comes after the penalties for not abiding by the Affordable Care Act’s individual mandate were abolished by Congress in late 2017.

Starting in 2020, California residents will be required to have health insurance or pay excess taxes.

This will have an effect on any of your employees who have opted out of your group health plan as it may mean they are going without coverage, unless they have opted to be covered by their spouse’s plan.

If you have staff who didn’t enroll in your plan for 2020, they may have to wait until your group’s next open enrollment at the end of the year. That could force them to pay tax penalties, depending on how long they are without coverage in 2020.

7. New audit, X-Mod thresholds

The threshold for physical workers’ compensation audits for policies incepting on or after Jan. 1, 2020 will be $10,500 in annual premium, a drop from $13,000. This means that any employer with an annual workers’ comp premium of $10,500 or more will be subject to a physical audit at least once a year.

On top of that, the threshold for experience rating (to have an X-Mod) has also fallen ― to $9,700 in annual premium as of Jan. 1, from $10,000.

8. Harassment training deadline pushed back for some employers

As you should already be aware, any employer with five or more workers is required to conduct sexual harassment prevention training for their staff by the end of 2019 under a California law passed in 2018.

Due to concerns that many employers in the state may not be ready to comply, a new law extends the compliance deadline for some employers.

Under SB 778, all employees, both supervisory and non-supervisory, must be trained by Jan. 1, 2021, which extends the deadline by a year.

The original law, SB 1343, required all employers with five or more staff to conduct sexual harassment prevention training to their employees before Jan. 1, 2020 ― and every two years after that.

Here are the new rules:

  • If you trained your staff in 2019, you aren’t required to provide refresher training until two years from the time the employee was trained.
  • If you trained your employees in 2018, you can maintain the two-year cycle and still comply with the new January 1, 2021 deadline. For example, if you trained your staff in November 2018, you would not have to train them again until November 2020.
  • If you trained supervisors in 2017 under prior law, known as AB 1825, you should train those employees this year in order to maintain your two-year cycle.

9. Hairstyle discrimination

A new law makes it illegal for employers to discriminate against employees and job applicants based on their hairstyle if it is part of their racial makeup.

The CROWN Act (Create a Respectful and Open Workplace for Natural Hair), amends the state Education and Government Code to define race or ethnicity as “inclusive of traits historically associated with race, including, but not limited to hair texture and protective hairstyles like braids, locks and twists.”

This broader definition of race means that natural hair traits fall under the context of racial discrimination in housing, employment and school matters.

10. Reporting serious injuries

A new law broadens the scope of what will be classified as a serious illness or injury which regulations require employers to report to Cal/OSHA “immediately.”

The new rules being implemented by AB 1805 are designed to bring California’s rules more in line with Federal OSHA’s regulations for reporting. It will mean that some injuries that were not reportable before will be, such as:

  • Any inpatient hospitalization for treatment of a workplace injury or illness will need to be reported to Cal/OSHA.
  • For reporting purposes, an inpatient hospitalization must be required for something “other than medical observation or diagnostic testing.”
  • Employers will need to report any “amputation” to Cal/OSHA. This replaces the terminology “loss of member.” Even if the tip of a finger is cut off, it’s considered an amputation.

As of yet, there is no effective date for this new law, as enabling regulations have to be written ― a process that will start in 2020.

Top 10 Laws and Regulations for 2020

Top 10

The new decade is starting off with a massive swell of important new laws and regulations that will affect California businesses.

There are so many new laws and regulations that companies have to be on their toes especially at the start of 2020 to get their bearings. This is the first of a two-part entry looking at the top laws affecting businesses coming into the New Year.

  1. AB 5

Probably the most earth-shattering new law to hit the books in California is the highly controversial AB 5, which creates a new and more stringent test for determining who is an independent contractor or employee.

Known as the “ABC test,” the standard requires companies to prove that people working for them as independent contractors are:

A) Free from the company’s control when they’re on the job;
B) Doing work that falls outside the company’s normal business; and
C) Operating an independent business or trade beyond the job for which they were hired.

With this in mind, legal experts recommend that employers:

  • Perform a worker classification audit, and especially review all contracts with personnel.
  • Notify any state agencies about corrections and changes to a worker’s status.
  • Discuss with legal counsel whether they should now also include them as employees for the purposes of payroll taxes, workers’ compensation insurance, federal income tax withholding, and FICA payment and withholding.

2. Wildfire safety regulations

Cal/OSHA has issued emergency regulations that require employers of outdoor workers to take protective measures, including providing respiratory equipment, when air quality is significantly affected by wildfires.

The regulations require that employers take action when the Air Quality Index (AQI) for particulate matter 2.5 is more than 150, which is considered in the “unhealthy” range.

All California employers with “a worker who is outdoors for more than an hour cumulative over the course of their shift” would be required to comply with these regulations:

  • Checking the AQI.
  • Creating a system of communications when the AQI is in the unhealthy range.
  • Training outdoor workers in the safety regulation, how to report problems and how to properly don and use a respirator.
  • Providing workers with protection that could include respirators, changing work schedules, moving them to a safe location, and more.

3. Arbitration agreements

Starting Jan. 1, the state will bar almost all employee arbitration agreements, under AB 51.

The new law bars employers from requiring applicants, employees and independent contractors to sign mandatory arbitration agreements and waive rights to filing lawsuits if they lodge a complaint for various forms of discrimination, harassment, wage and hour issues, and more.

But on Dec. 6, a coalition of businesses groups filed a suit to overturn the law on the grounds that it is preempted by the Federal Arbitration Act and should be declared invalid.

AB 51 applies to contracts entered into, modified or extended on or after Jan. 1, 2020. If you require new employees to sign arbitration agreements, you could be at risk of violating the new law.

4. Federal overtime rules

New federal overtime regulations have finally been introduced for non-exempt workers after years of wrangling over the issue.

Under the new rule, employers will be required to pay overtime to certain salaried workers who make less than to $684 per week ― or $35,568 per year ― up from the current threshold of $455, or $23,660 in annual salary.

5. Consumer privacy

Starting Jan. 1, 2020, under the state’s California Consumer Protection Act, businesses that are custodians of personal data of California consumers will be required to put in certain safeguards to protect that information and inform website users how their personal data may be used.

The law applies to firms with $25 million or more in annual revenues or those that sell personal information as part of their business. The CCPA requires that businesses must explain to consumers their rights under the act at the time their personal information is collected.

IT security professionals advise you to:

  • Review your current processes to see if they need to be updated or recreated.
  • Document all uses of the data and map where personal (consumer) data is stored and transmitted.
  • Put systems in place to respond to a request from a consumer for the data you are storing on them.
  • Update your website homepage with a clear and conspicuous link titled “Do Not Sell My Personal Information,” which allows the consumer to opt out.
  • Improve your cybersecurity systems to better protect consumer data.
  • Train your employees on how to respond to consumers and how to handle consumer information.

In our next post, we will highlight the next five laws and regulations you need to be aware of for your business.

More Firms Being Sued for Discrimination over Medical Marijuana

medical marijuana

More and more companies are being sued for discrimination by job applicants who have legally been prescribed medical marijuana, after they failed pre-employment drug screenings or because of their use of the substance.

The issue of medical marijuana is difficult in terms of the employment picture, especially now that 33 states and the District of Columbia have legalized its use. Of those states, 16 provide workplace protections, either through their own law or case law since their medical marijuana laws were enacted.

To confuse the issue further, marijuana is still illegal under federal statutes, putting employers in a difficult position when they are deciding whether to hire someone who uses it for medicinal purposes.

Courts are increasingly siding with workers and job applicants who are using medical marijuana when they sue employers for discrimination. Most recently, in November 2019, the Court of Common Pleas of Lackawanna Count in Scranton, PA ruled that while the state’s medical marijuana law does not explicitly permit a private right of action by an employee who is allegedly discriminated against because of medical marijuana use, it does so implicitly.

There have been similar rulings in federal and state courts, including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey and Rhode Island. Legal experts say the Pennsylvania case and the others have opened the door for people in other states filing similar actions.

More and more courts have therefore been willing to treat workers who use medical marijuana in the same way as those who have to take other prescription drugs.

Litigation pathways

There are two avenues for litigation for workers who use medical marijuana, if their employers take adverse actions against them:

  • Discrimination — Claiming medical marijuana as a “reasonable accommodation” for someone’s disability under the Americans with Disabilities Act (or a comparable state law), and that the employer should accommodate the worker’s use. Courts have usually drawn the line at using at work to define reasonable accommodation. In other words, it would not be discrimination if an employer bars medical marijuana-using employees from using at work, but it would if they bar them from using during non-working hours.
  • Protection from adverse actions — This could include firing, demotions or similar actions against someone who uses medical marijuana off the clock and does not come to work impaired.

What you can do

Experts recommend that employers make an effort to engage in an interactive process with workers in states where medical marijuana has been legalized.

They recommend engaging any workers who have been prescribed medical marijuana in the interactive process, as prescribed by the ADA. Through this process, the employer can see if they have an underlying disability that requires accommodation.

One of the key considerations for employers is that the reasonable accommodation should affect a worker’s ability to safely perform their job.

If you are in a state whose laws protect medical marijuana users from adverse employment actions, you should review your policies and workplace rules to make sure they are in line with the law.

In addition, since other states have been starting to side with workers in discrimination cases, if you are in a state with legalized medical marijuana, you may want to conduct the same internal review.

If you do conduct drug testing, you should consider which positions you want to test for. Many employers have started only testing for positions that are safety-sensitive, such as those that include operating heavy machinery.

Beware of Parking Lot Hazards at the Holidays

parking hazard

During the busy holiday season, there are many distractions that make parking lots a fairly dangerous place to be.

The combination of early sunset, increased traffic and pedestrians, scam artists, vandals and thieves, and people in a rush, can sometimes be a deadly combination. Just a momentary distraction or lapse in judgment can lead to tragedy.

Parking lot accidents can also turn into a liability for your company or result in an employee being injured and filing a workers’ comp claim.

Fourteen percent of all collisions in the U.S. each year happen in parking lots, and can result in costly insurance claims for vehicle damage. Even worse, it one of your employees strike and injure a visitor, the costs are even higher in terms of both dollars and emotional distress.

Disseminate these basic tips to your employees to help keep everyone safe during the especially busy holiday season:

  • Check your surroundings before you get in your car
  • Backing up is dangerous. Be certain that nothing and no one is behind you before backing out of your parking space
  • Keep your foot off of the gas as you back up, and be ready to break in an instant
  • Look in every direction before pulling into a spot, or backing out of one
  • Don’t text and drive
  • Slow down and pay close attention to speed limits
  • Be careful of pedestrians who may dart in and out between parked cars
  • Park only in areas that are well-lit
  • Keep your car windows closed and your doors locked
  • Watch for cars that may cut diagonally through the parking lot

If you own a building with a parking lot you can also have some liability.

Generally, the owner of the parking lot (whether it is a person, a business, or a property management company) has a reasonable duty to take care that people don’t get hurt on their property. This means that they have to take certain precautions to make that parking lot as safe as possible.

If there are cracks or uneven areas in the pavement, the owner needs to warn people of the danger or repair any hazards that could cause a person to slip and fall. If the parking lot becomes icy, the owner has a responsibility to make it as safe as possible, perhaps by clearing the snow and putting down salt or ice melt.

The takeaway

By training your employees on parking lot and winter driving safety as well as your keeping your parking lot free of hazards you can greatly reduce the chances of an accident and injury happening.

And it goes without saying that you should have commercial general liability (CGL) insurance, which protects you and your business from claims of injury, property damage and negligence related to your business activities.

One of the most essential parts of a CGL policy is premises liability coverage. This portion of your commercial general liability policy offers bodily injury and property damage coverage related to the ownership or maintenance of business premises.