Workers’ Comp Hub Newsletter: Winter 2015

Nail Worker (Photo: Earl Dotter)

In this edition of the Workers’ Comp Hub newsletter, we examine the toll that toxic chemicals are taking on beauty salon workers and the barriers these workers face in accessing important safety information and workers’ comp coverage. We also report on the rising issue of worker protections in the ‘sharing economy’, new developments in toxic exposure laws and regulations, and a ban on fracking in New York state.

– Jim Ellenberger

A High Price Tag for Beauty: Toxic Exposure in Hair and Nail Salons

(Photo: Earl Dotter)

When you think of a hair or nail salon, chances are poison isn’t the first thing that comes to mind. Yet an appalling number of beauty care products used regularly in salons contain highly toxic chemicals, causing serious and lasting health problems for the 1.2 million workers who handle them on a daily basis.

Salon workers are at greater risk for diseases ranging from life-threatening cancers and decreased lung function to chronic and severe dermatitis and depression. They also face a higher risk of reproductive disorders — a fact that is particularly concerning in an industry that employs over 90% women, 60% of whom are of childbearing age. Frightened by the increased risk of miscarriage and birth defects, many women leave the industry when they become pregnant. In a sector that is primarily low-wage, a leave of absence this long can have devastating financial ramifications.

For beauty care workers who become sick from on-the-job toxic exposure, there are significant barriers to receiving medical coverage and wage replacement under workers’ compensation. Many salons rent booths out to individual workers, who are therefore classified as independent contractors, while others misclassify their employees as contractors, thereby robbing them of their access to workers’ comp, health care, and sick leave.  

In nail salons, the workforce is comprised largely of Vietnamese immigrants. Many have limited fluency in English, making it difficult for them to access information about safety and navigate the regulatory and workers’ comp systems.

Moreover, workers with occupational illnesses face notorious difficulties getting workers’ compensation. The comp system sets strict criteria for proving that a condition is job-related, often relying on outdated or inadequate regulations to determine how much exposure to certain toxic substances can cause illness.

While U.S. law prohibits the use of “poisonous or deleterious substances” in cosmetic products, the FDA lacks the resources to enforce this law. As a result, the agency does not review cosmetics before they go on the market, and is unable to require a recall of products that are proven harmful. This abhorrently low oversight and regulation of toxic chemical use in salon products not only means that no effort is made to transition to safer products or limit use of dangerous chemicals, but also makes it difficult to impossible to prove employer negligence or work-relatedness in occupational illness cases. Greater federal oversight is needed to ensure the manufacturing and use of safer salon products and guarantee better safety training and protocol for salon workers.

Workers’ comp in the “sharing economy”

As Uber, Lyft, TaskRabbit, and other app- and internet-based companies in the so-called “sharing economy” grow, concerns are rising about their workers’ lack of basic protections. Instead of hiring front-line workers as employees with workers’ comp coverage, health insurance, job security, and other protections, the companies dodge these responsibilities by classifying their workers as independent contractors. Several recent physical assaults on Uber and Lyft drivers have highlighted the devastation that a lack of workers’ comp can cause for workers and their families. In an industry with one of the highest rates of on-the-job assault and homicide, adequate protections in case of occupational injury are an urgent matter for taxi drivers.

Indeed, workers’ comp is one of the worker protections that ‘traditional’ taxi drivers have worked hard to win, and these drivers now worry that their labor protections will be eroded as Uber and Lyft drive a race to the bottom. App-based drivers’ associations, meanwhile, face significant difficulties organizing due to workers’ fears of retaliation, lack of job security, and isolation. Nevertheless, they have managed to gain momentum in several cities, culminating in the first multi-city Uber strike last fall. As the market for peer-to-peer services grows, drivers will struggle without adequate access to health care and income supports while they are recovering.

Workers exposed to asbestos win in court, but regulations on benzene, silica, and other toxics remain stalled

Occupational exposure to asbestos, benzene, and other toxic chemicals causes countless lethal diseases, with asbestos-related conditions alone accounting for 10,000 deaths per year in the U.S. However, for many workers exposed to these toxic substances, the signs of occupational disease don’t manifest themselves for years or even decades, often showing up long after the workers have left the place of employment where they were exposed.

In many states, these workers find themselves stuck in a loophole of the workers’ comp system that simultaneously excludes them from filing a workers’ comp claim – due to time limits for claims – and restricts them from filing a lawsuit in civil court – due to the workers’ comp exclusivity clause. Two recent cases, first in Pennsylvania, then in Illinois, have helped to close this loophole by ruling that workers with asbestos-related diseases can bring lawsuits against their former employers if they aren’t diagnosed until after the time limit for filing a workers’ comp claim has ended. The rulings are significant in their potential to set a precedent not only for other states, but also for similar cases involving occupational diseases caused by toxic chemicals other than asbestos.

Evidence has emerged showing that the petrochemical industry has routinely falsified research on benzene health and safety to manipulate outcomes, and has hired consultants to publish biased articles in peer-reviewed magazines. With industry-backed studies polluting the scientific literature, workers made sick by benzene have more difficulty bringing a successful lawsuit against their employers because it is harder to prove causality between the chemical and their condition. Despite catastrophic incidents over the past decade involving combustible dust, the government has deferred action, saying it needs to focus on its proposed silica rule and enforcement of existing regulations. OSHA’s Fall 2014 agenda does, however, indicate that the agency plans to move ahead with proposing new exposure limits for beryllium, a chemical that causes lung conditions and cancer.

New York’s monumental fracking ban

New York governor Andrew Cuomo announced in December that the State would ban fracking due to health and environmental hazards posed by the process. The decision is a huge victory for grassroots groups that have been organizing for the ban for years. As we reported in our last newsletter, fracking poses dangerous risks for workers in the oil and natural gas industry by exposing them to high-silica content “frac sand” and toxic chemicals. Advocates hope that the momentous NY decision will set the stage for successful campaigns to end fracking in other states.

Patients with former comp claim pay price for mixup in Medicare policy

A Medicare policy that requires workers’ comp cases to be closed before Medicare pays for a patient’s care has created big problems for people in states that leave comp claims open indefinitely. As local news station KLRD reports, in Texas this technicality has manifested itself in a serious barrier to healthcare for some.

Wal-Mart and other corporations fight injury reporting rule

OSHA is scheduled to finalize an important rule this year that will require companies with over 250 employees, and smaller companies in hazardous industries, to report all workplace injury data. Unsurprisingly, the National Retail Federation, which represents Wal-Mart and McDonalds among others, has been lobbying hard to fight the rule.


Toxic Pesticides

The Center for International Environmental Law has published a report on a trans-Atlantic trade agreement that could reduce protections from toxic pesticide use.

NY Comp Update

The 2014 State of the System Report prepared by attorney Robert Grey reviews the status of the NY Workers’ Comp System and highlights major changes and trends.

‘Beauty and its Beast’

Women’s Voices for the Earth released this report on toxic exposure in beauty salons.Delinquent Mines

NPR released a series of investigative articles on coal mines that continue to operate with unsafe worker conditions despite fines and violations.