Workers’ Comp Hub Newsletter: Winter 2019

Edited by Jim Ellenberger

As the new year begins, we report on how profit-driven insurance companies and employers use drug testing and other punitive policies to wrongfully deny and deter workers’ compensation claims. We also share news on ill workers struggling to get compensation and raise awareness of toxic exposure, legislative updates from Kentucky and Pennsylvania, and two proposed federal bills that would extend essential labor rights to domestic workers and would allow workers to sue their employers for harassment, discrimination, wage theft, and other illegal treatment rather than being forced into private arbitration.

– Jim Ellenberger

Shifting Blame: How Punitive Policies Target Low-Wage Workers, Create Barriers to Workers’ Comp, and Fuel the Addiction Crisis

Working as a carpenter in Louisiana, Joshua Prine suffered an acute back injury. He reported the injury and his supervisor took him to a clinic — not for medical treatment, but to make him pee in a cup. When Prine insisted on seeing a doctor before taking a drug test, his supervisor fired him on the spot. He was left to find his own way to another clinic, where he passed a drug screening after receiving emergency medical care.

Joshua Prine’s case illustrates how some employers and insurance companies are using drug testing in workers’ comp cases as a retaliatory and punitive measure to deter workers from filing for workers’ comp and discredit their claims rather than as a genuine response to workplace safety concerns.

Drug tests are but one of a number of invasive practices that profit-driven employers and insurance companies are using to boost their bottom lines by shifting blame onto individual workers. Other practices include using “safety reward” programs to create peer pressure against reporting injuries, requiring workers to see company-paid doctors who are more concerned with denying claims than delivery treatment, and hiring private investigators to surveil workers’ private lives. All the while, industry lobbyists are working with state legislators to rewrite laws to make these practices even easier.

For injured workers, drug testing has a double impact. First it acts as a standing threat, deterring workers from filing an injury report in the first place, for fear of retaliation from their employer whether or not their claim goes through. Secondly, it opens a door for employers to sow doubt about an injured worker’s claim. Insurance companies use refused or positive drug tests to justify denying or reducing workers’ benefits, knowing that adding another obstacle to an already labyrinthine process will dissuade many workers from pursuing their claims. 

Moreover, drug tests shift the burden of proof onto workers to show their ‘innocence’ in order to claim a benefit that is supposed to be guaranteed. This flies blatantly in the face of the no-blame assumption that is foundational to workers’ comp. While employers unquestioningly accept the shield this affords them from the unpredictability and potentially higher liability of civil lawsuits, they shirk their side of the bargain when they force workers to prove that their own actions did not contribute to the injury.

In 2016, the Occupational Safety and Health Administration (OSHA) passed a record-keeping rule that placed restrictions on post-injury drug-testing, acknowledging its invasive nature and fundamentally retaliatory function. However, under direction by the Trump administration, in October OSHA released new interpretive guidelines that backtrack on key elements of the rule — including a statement that post-accident drug testing would not be considered retaliatory if employers “test all employees whose conduct could have contributed to the incident, not just [those] who reported injuries.” Moreover, under the Occupational Safety and Health Act, OSHA rules cannot affect state workers’ comp laws, so where post-injury drug testing is explicitly allowed in state law, employers cannot be held accountable for using it as a mechanism of retaliation or intimidation.

Insurers continue to exploit such loopholes, as a recent case in Colorado makes devastatingly clear. Adam Lee was a lift attendant at Loveland Ski Resort, where he was killed last winter when he was caught in the ‘Magic Carpet’ ski escalator.  Months later, the resort’s insurance company told Lee’s widow and two children that they would be denied half of his workers’ comp death benefits because a posthumous toxicology test showed THC in his body. Though marijuana is legal in Colorado and there is no scientifically valid method to determine whether Lee was actually intoxicated when he died, it remains legal for the insurance company to deny Lee’s family death benefits because of the drug test results.

In other cases, insurance companies use invasive practices of surveillance and harassment in order to dig up personal details after the fact to discredit a claimant. In this context, an individual’s alcohol and tobacco use are often held up as evidence of an unhealthy lifestyle, introducing doubt about the cause of an occupational injury or illness. No matter how groundless these charges are, they force injured and ill workers to play defense, undertaking time-consuming appeals and scrambling to ‘prove’ details of their personal lives.

Stigmatizing and blaming individuals for structural problems like safety hazards and addiction is nothing new, nor is it limited to workers’ comp. The blame levied on injured workers stems from a long history of punitive practices and policies targeting poor and working people—especially Black people, indigenous people, and immigrants—that stretches from 17th century English and colonial American poor laws through Reagan’s War on Drugs and on fabled “welfare queens,” Clinton’s elimination of welfare rights, mass incarceration, deportation, and the ongoing assaults on Medicaid, public housing, and SNAP (food stamps).

Punitive policies are driven in no small part by companies’ desire to boost their profits by cutting payments to workers, insurance rates, and taxes. At the same time, they also serve the larger political project of cleaving our citizenry into two imaginary groups, the deserving and the undeserving.

Stigmatizing individual workers as irresponsible and thus undeserving serves corporations’ larger political project of undercutting workers’ power, blocking regulation of private industries, and preventing downward redistribution. At the same time, punitive practices shift blame onto workers by playing off, and reinforcing, cultural biases that treat alcoholism, pain killer dependency, and other addictions as sources of individual shame and blame rather than public health issues demanding a collective, caring response. Rather than combat the addiction crisis, as ‘tough on drugs‘ advocates claim to do, this instead exacerbates the problem, feeding into the cycle of addiction by creating barriers to treatment, employment, affordable housing, and medical care. 

It is clear that we need more humane and effective public health approaches to help people heal from addiction. Two states are leading the way in developing such programs by integrating preventive measures, medical treatment, access to sdiv housing and income, and a path to dignified work with a livable wage. Vermont has introduced a promising ‘hub and spoke’ model that connects people to addiction treatment, therapy, social services, and other resources. As we highlighted in our last newsletter, Washington has also implemented a public health model that approaches the problem of opioid addiction through collaboration across state agencies and different areas of drug enforcement, health, and workers’ comp policy. 

Key to both states’ strategies is treatment rather than criminalization and an emphasis on integrating healthcare with other social supports, an approach that recognizes that addiction cuts across all areas of people’s personal, social, and economic lives.

Workers arguably have at least as big a stake in maintaining safe workplaces as employers. An honest and effective workplace-safety approach to addiction and substance abuse would fully involve workers, unions, occupational safety, and public health experts in developing and implementing solutions in connection with broader public health efforts to help communities manage and treat addiction.

Take Action

Our Turn Sexual Harassment Action Network and the National Women’s Law Center are hosting a webinar on taking legal action against sexual harassment. There will be separate English and Spanish discussions.

Wednesday, January 23, 2-3:30 pm ET (English) — Watch a recording here
Wednesday, February 27, 2-3:30 pm ET (Spanish)

Call-in Info: (online)
(669) 224-3412, passcode: 128431613 (phone)

National COSH will host a bilingual webinar on preparing for Workers’ Memorial Week (April 22-29, 2019). Join the discussion to learn more and to share resources, tools, and strategies for organizing vigils and other events, building a big turnout, and winning broad media coverage.

Thursday, February 14, 2-3:30 pm ET 

Call-in Info: (online)
(669) 224-3412, passcode: 128431613 (phone)

Sign this petition calling on Congress to pass the Restoring Justice for Workers Act. The act would allow workers to take employers to court for discrimination, harassment, wage theft, and other illegal activities, something that some 60 million workers are currently prohibited from doing.

Support the National Domestic Workers Bill of Rights, which would ensure essential basic labor protecions for the over 2 million domestic workers in the U.S. Sign on to support the bill here.


Opiates and Work Injury 

“Getting to the Root of the Problem” — listen to a recording of National COSH’s webinar on connections between occupational injuries and opioid use.

“‘The Good, the Bad and the Ugly’ of State Worker Safety Programs”

This investigation from the Center for Public Integrity (in collaboration with Ohio Valley ReSource and the Kentucky Center for Investigative Reporting) looks at the safety records of the 28 states and territories that regulate their own workplaces.

UN Report: Workers’ Human Rights and Toxic Exposure

Nearly one million workers die every year from occupational diseases caused by toxic exposure, most of which is prevendiv. This annual report to the Human Rights Council documents the unconscionable conduct of companies that exploit and endanger millions of workers worldwide, preying especially on vulnerable groups such as women, migrants, and those living in poverty.

“From Surviving to Thriving”

In this report, The Center for Progressive Reform addresses the disproportionate impact natural disasters have on low-income Americans and develops recommendations for disaster planning and environmental, health, and safety standards that aim to protect those most vulnerable, including recovery workers and poor neighborhoods.

Ill Nuclear Workers Seek Justice

A three part series from ProPublica investigates a decade of compensation delays and denials for ill nuclear workers at the Los Alamos National Laboratory.

“Nail Files”

This report from the UCLA Labor Center and California Healthy Nail Salon Collaborative describes widespread abuse of workers’ rights in the U.S. nail salon industry, where predominantly low-wage, immigrant women workers face rampant labor violations and dangerous toxic exposures. 

Pool Chemical Safety

The chemicals used in pool cleaning and disinfection can cause eye damage, asthma, skin burns, and other harmful conditions. This resource list from the California Department of Public Health provides information for workers on preventing chemical injuries and illnesses as well as journal articles on health consequences and references for health code standards.

Opiates and Work Injury 

“Getting to the Root of the Problem” — listen to a recording of National COSH’s webinar on connections between occupational injuries and opioid use.

Workplace Safety and Health Year in Review

Jordan Barab of Confined Space gives a roundup of 2018 workplace safety and labor news, including political developments, labor movement action, and outstanding investigative reporting. 

Annual Report on Workplace Injuries, Illnesses, and Fatalities in the U.S.

The Bureau of Labor Statistics has released the Census of Fatal Occupational Injuries and Employer-Reported Workplace Injury and Illnesses report for the year 2017.

News Roundup

Workers’ Comp for Hazardous Exposure

Under the direction of the Trump administration the U.S. Department of Justice (DOJ) is trying to cut off critical access to workers’ comp for clean-up workers at Hanford, Washington, a former manufacturing site for radioactive materials that is now the country’s most dangerous Superfund site. The DOJ has taken steps to overturn a state law that protects Hanford clean-up workers by creating a presumption that certain respiratory diseases and cancers are caused by toxic exposure on the job. Without this legal measure, it is extremely difficult for workers to prove their illnesses are work-related because the Department of Energy refuses to release information about the chemical and radiological hazards to which they are exposed. What’s more, ill Hanford workers filing workers’ comp claims have faced systematic denials, intimidation, invasive surveillance, and humiliating assaults on their dignity from the workers’ comp benefits manager hired by the Department of Energy

Civilians employed by the U.S. Department of Defense in Afghanistan and Iraq have been exposed to the same toxic hazards as the military personnel alongside whom they work, but face far stricter workers’ comp rules — making it virtually impossible to prove work-relatedness for occupational illnesses. 

Hundreds of laborers poisoned by coal ash during clean-up of a Tennessee power plant won a lawsuit against Jacobs Engineering, the firm that was supposed to keep them safe. Jacobs lied to workers about the dangers of coal ash, refused to provide protective gear, and retaliated against workers who spoke up about safety concerns.

Ill worker activists are speaking up about the health impacts of peracetic acid, a toxic chemical used in the poultry industry to treat factory-farmed chicken and turkey for bacteria.  

Black Lung and the Failure to Protect Miners

Silica is an even more dangerous contributor to the black lung epidemic than coal dust, say health experts. But despite almost a century of awareness that silica dust poses a severe occupational health hazard, federal regulators have failed to set safe exposure limits for the substance within the mining industry.

Amidst the climbing rates of black lung disease, many miners are forced into an impossible choice between their health and their livelihood. To make matters worse, workers risk losing their job or other retaliation even for undergoing diagnostic health evaluations that may lead to a workers’ comp or disability claim.

For more on the rise of black lung and the government’s failure to protect miners, watch this investigative report from Frontline and NPR.

Developments in State Workers’ Comp Law

Two Kentucky lawmakers are attempting to restore access to workers’ comp for coal miners suffering from black lung. The state passed a new workers’ comp law earlier this year that limits which types of doctors can diagnose black lung, thereby making it harder for ill workers to get compensation as rates for the disease spike across Appalachia.  

In Pennsylvania, Democratic Governor Tom Wolf signed into law a bill that subjects injured workers to insurance-ordered medical exams that can limit long-term benefits for those who have been severely disabled by workplace injuries. The law reinstates, with minor changes, a provision struck down last year by the state’s Supreme Court, which ruled that such follow-up examinations unconstitutionally give power over taxpayer-funded benefits to a private group.

Workers Fight for Protections Against Retaliation and Harassment

Congressional Democrats have introduced the Restoring Justice for Workers Act, which would ban companies from forcing employees into arbitration over workplace complaints. More than half of employees in the U.S. are subject to mandatory arbitration clauses in their terms of employment, meaning that they cannot bring a claim to court if their employer violates their legal rights. Forced arbitration notoriously favors employers, making it nearly impossible for workers to hold them accoundiv for serious workplace offenses like sexual harassment, wage theft, discrimination, and retaliation. Women, and particularly women of color, are among those most impacted by mandatory arbitration, which has prevented many who spoke out in the #MeToo movement from bringing their employers to court for their complicity in sexual harassment cases.

Also announced in Congress this fall is a proposed federal bill of rights for domestic workers, legislation that would for the first time extend basic labor laws to domestic workers at the national level, ensuring essential protections for a predominantly female and largely immigrant workforce that is often subjected to harassment, discrimination, abuse, wage theft, and other mistreatment at the hands of their employers. The result of years of persistent advocacy by the National Domestic Workers Alliance, the bill includes the right to form unions, to OSHA protections, to overtime pay, and to recourse against discrimination and harassment.  

Finally, a lawsuit by Public Citizen and two healthcare advocacy groups challenging OSHA’s rollback of its workplace injury reporting rule can move forward after a federal judge ruled that the rule’s suspension exceeds “enforcement discretion” and is therefore open to court review.