2 Workers’ Compensation State lawBenefits for work-related injuries and illnesses.Benefits might be paid byInsurance companyEmployerState
3 Work-related injury or illness Must occur within the scope of employmentMust not be intentional self-inflictedEmployee must not be drugged or intoxicated
4 Workers’ Compensation statutes began being passed in the early 1900s Before that employers had a number of defenses if an employee was injuredContributory negligenceAssumption of riskFellow-servant rule
5 What does Workers’ Compensation typically cover? Medical billsLost income (2/3 of salary. Not subject to income tax.)Recovery for loss of use of body parts.RehabilitationDeath benefits for dependents
6 Who is covered?In some states, employers do not have to provide coverage if they have fewer employees than a certain number. (In GA, it is 3.)Some workers are covered under similar federal lawsFederal Employer’s Liability ActLongshore & Harbor Workers’ Compensation ActMerchant Marines Act (Jones Act)
7 Advantages to Workers’ Compensation Employer is strictly liableDo not care who is at faultLess for employee to have to prove. Should be paid faster
8 Disadvantages to Workers’ Compensation Employees collect less than in a lawsuitWorkers’ Compensation is “the exclusive remedy against the employer.” The employer can not be sued in negligence.What additional damages could an employee collect if s/he could sue in negligence?100% lost income (unlimited)Pain and sufferingPunitive damages
9 Employee cannot sue the employer in negligence, but what about a third party? Employer/insurance carrier usually have a right of SUBROGATION.
10 What defenses can an employer raise? Worker is not an employee. S/he is an independent contractor.Not work related. Not within the scope of employment.Employee is actually able to work.
11 Georgia State Board of Workers’ Compensation Information for Georgia Employers
12 See SMB Stage Line, Inc. v. Leach, 204 Ga. App. 229, 418 S. E See SMB Stage Line, Inc. v. Leach, 204 Ga. App. 229, 418 S.E.2d 791 (1992)See Collie Concessions, Inc. v. Bruce, 272 Ga. App. 578, 612 S.E.2d 900 (2005)
13 Occupational Safety & Health Act The OSH Act is the principal federal governing the safety of private sector workplaces.The Act created 3 new agencies:OSHA, the Occupational Safety & Health Administration (administers the OSH Act)OSHRC, the Occupational Safety & Health Review Commission (independent from OSHA; hears appeals from OSHA rulings)NIOSH, the National Institute of Occupational Safety & Health (provides scientific & technical support to OSHA)
14 Statutory BasisThe Occupational Safety and Health Act requires employers to provide a place of employment free from recognized hazards and to comply with other standards under the actIt also requires employees to comply with health standards and rules applicable to his or her own actions
15 Safety at WorkPrior to the act in 1970 there was no comprehensive requirement for employers to provide safe working conditionsThree common law defenses often allowed employers to escape liabilityContributory negligenceAssumption of riskFellow servant rule
16 Act covers any employer that is in a business affecting commerce Requires employers to comply with standards set by Department of LaborCompliance requirementsRequires employers to provide workplace free from recognized hazardsGeneral duty clauseWorkplace death rate cut in half since act
17 Excluded from Coverage All GovernmentsFamily businessSelf-employedRail RoadsMiningNuclearFarms employing 25 people or less
18 Procedure for Enforcement Occupational Safety and Health Administration (OSHA) administers actInspects workplaces without prior noticePenalties may be assessedStandards set by National Institute for Occupational Safety and HealthManagers may be held personally liable for offenses
19 Compliance Provisions Some specific regulations apply to nearly all types of employersAdequate ventilation, emergency exits, safety nets, guard railsProper training for employeesContinual-training requirementMedical exams for exposure to toxic substancesDriver training, seat-belt usage, vehicle inspection
20 When & why does OSHA inspect? Imminent dangerA death or 5 or more employees are hospitalizedLegitimate employee complaintSpecial program or projectsRandomRe-inspection
22 Developing and enacting new standards can take some time. Emergency temporary standards may be set when employees are exposed to grave danger from exposure to substances and the standards are necessary to protect the employees from danger
23 General Duty ClauseRequires employers to provide each employee employment and a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harmRecognizable hazards may actually be known by the employer or recognized by the industry
24 “Likely to cause serious physical harm or death” has been construed to mean “possible” Since OSHA has not addressed HIV/AIDS exposure with a specific standard, the general duty clause may applyOSHA does not hold employers liable for employees’ home offices, but considers cars “virtual worksites”
25 Violation of the General Duty Clause The elements necessary to prove a violation of the general duty clause are:1. A workplace hazard was allowed to exist.2. The hazard was or should have been recognized by the employer.3. The hazard caused or was likely to cause death or serious physical injury.4. Feasible means exist to abate the hazard and were not used.
26 OSHA has guidelines, but no rules, on workplace violence Employers have been held liable for repetitive use injuries although there are no specific standardsEmployees may refuse to work in an unsafe work environment without fear of retaliationOSHA has guidelines, but no rules, on workplace violenceGeneral duty clause may apply
27 Elements of a Violation To establish violation of a safety standard, OSHA must show all the following:1. An applicable standard exists.2. The standard was not complied with.3. One or more employees were exposed or had access to the hazard.4. The employer knew or should have known of the hazard.
28 Just the FactsFor a company-sponsored outdoor barbecue, the employer purchased a gas grill equipped with a 20-pound propane tank. To ensure sufficient gas to complete the grilling, the employer then purchased and installed a 40-pound tank. Doing so was difficult, as the larger tank required use of a special adaptor and had to be tipped at an angle to fit under the grill. The larger tanks have a warning label that cautions against using them with grills ordinarily equipped with 20-pound tanks. Several employees were assigned to operate the grill. When it was determined that the grill was not adequately cooking the meat, two of the employees attempted to improve the flow of gas by checking the regulator and repositioning the tank. This caused fuel to escape and a ball of fire to erupt from the grill. One employee suffered severe burns to his hands and the other had his hair singed. Did this employer violate the general duty clause of OSHA?Safeway v. OSHRC, 382 F.3d 1189 (10th Cir. 2004).
29 How serious a fine should OSHA impose? OSHA will considerNumber of same violationsSeverity of hazardNumber of employees exposed
30 Penalty Adjustments: fines can be reduced by a percentage OSHA will considerGood faithSize of the businessHistory (safety record)Abatement period was too short
31 Appeals Employers can appeal: citation, fine or abatement period Employees can appeal: only abatement period
32 Employer Reporting Responsibilities and Employee Rights OSHA has strict reporting requirementsWork-related incidents must be reported within 6 daysWork-related accidents resulting in hospitalization or death must be reported within 48 hoursEmployees also have rights which must be posted or communicated to them by their employers
33 Recording & Reporting Requirements Employers not exempt from record keeping are required to establish and communicate to their employees specific procedures for reporting workplace injuries and illnesses.Employers are required to record (within 6 days of their occurrence):all work-related injuries or illnesses that result in death,days away from work,restricted work,transfer to another job,loss of consciousness, ormedical treatment beyond first aidand any other “significant” injuries or illnesses diagnosed by licensed health care professionals.Violations of such requirements can be costly.
34 Employer DefensesReckless behavior by employees may minimize employer liabilityPhysical or economic impossibility of compliance may apply if OSHA has issued a varianceEmployee reduction of risk may apply if the workplace cannot be made safeGreater hazard defense applies when compliance is more dangerous than noncompliance
35 Guidance?Employers should have standard procedures for accident investigationEfforts should be made to remove actions leading to injury or accidentEmployers should implement training programs to teach proper usage of materials or machines
36 R. Williams Construction v OSHRC Facts: A trench collapse at sewer construction project killed one employee and seriously injured another. A hydraulic jack shoring system which supported the trench wall had been removed the day before the accident, and the walls of the trench were not sloped as required by OSHA regulations. None of the employees had received safety training, and the employer was unfamiliar with OSHA requirements. The on-site supervisor had never read the safety manual. He testified that the employees talked about safety “all the time,” but could not recall when any specific rules were discussed.Issue: Did the employer meet its obligations under OSHA by relying on general work experience and common sense?Held: No. The company violated at least four specific provisions of the OSH Act.
37 Preventing Occupational Injuries & Illnesses Employers should focus on eliminating hazards or reducing them to the maximum extent possible through use of engineering and administrative controls.Safety rules should be clear, specific, consistent with one another, and strictly enforced.Employers should be proactive in identifying and abating unsafe conditions in their workplaces.Recommended: Establish an effective workplace safety program.
38 Responding to Workplace Injuries Employers should require that employees report all workplace injuries as soon as possible, so that treatment can be provided.Employers should err on the side of caution in referring injured employees for medical treatment.Reports of injuries should be investigated immediately and thoroughly.Hazards that caused the injuries should be identified and abated.Workers’ compensation claims should not be contested unless there are reasonable grounds for doing so.
39 What Would You Do?You are the production manager of a small factory, which has been newly relocated to a new facility. You’ve done everything you can to gear up to full production safely. Equipment has been installed by professionals, inspections performed, and safety training sessions held for all, even your experienced workers. Now, about an hour into your first day of full production, as you stand on the floor overlooking the line, you see employees falling ill, some becoming unconscious, and the equipment is still running. In fact, suddenly, you’re not feeling well yourself. What would you do?
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