In the November 2016 elections, the use of medical marijuana was approved through four state ballot measures, bringing the total to 28 states and the District of Columbia that have legalized medical marijuana in some form. Additionally, the District of Columbia and eight states—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington—have legalized recreational use of marijuana in some form.
However, under the Controlled Substance Act of 1970, marijuana is classified as a Schedule I substance with no accepted medical use and a high potential for abuse, making it illegal at the federal level. Amid state and federal law contradictions, many workers’ compensation payers are choosing to deny coverage for medical marijuana. Since medical marijuana isn’t currently included in workers’ compensation treatment guidelines, they have every right to do so.
As such, the future of medical marijuana in workers’ compensation remains unclear, and state and federal lawmakers have their own opinions.
States’ Stances
While states have different views on the use of medical marijuana, there are various state rulings that may be setting a new precedent in the workers’ compensation and medical marijuana debate.
New Mexico
New Mexico became the first state to propose a reimbursement rule for medical marijuana in November 2015. The state’s 2016 fee schedule set the maximum reimbursement rate for medical marijuana at $12.02 per gram for injured workers. Under the state’s Lynn and Erin Compassionate Use Act, authorization was considered equivalent to a prescription—requiring employers to reimburse injured workers for medical marijuana. Furthermore, this process allowed insurance carriers to avoid directly paying for a Schedule I substance.
Minnesota
In 2015, Minnesota’s health commissioner decided to include “intractable” pain as a condition that could be treated with medical marijuana. According to the Minnesota Department of Health, intractable pain is defined as, “pain whose cause cannot be removed and, according to generally accepted medical practice, the full range of pain management modalities appropriate for this patient has been used without adequate result or with intolerable side effects.” This decision has opened the door for claimants to request that their workers’ compensation insurers cover the cost for medical marijuana.
Maine
The outcome in a workers’ compensation case involving medical marijuana was different than those in New Mexico and Minnesota, when an employee who sustained a back injury while making deliveries requested reimbursement for medical marijuana. According to Maine’s Workers’ Compensation Act of 1992 (MWCA), “an injured worker is entitled to reasonable and proper medical, surgical, and hospital services, nursing, medicines, and mechanical and surgical aids, as needed, paid for by the employer.”
However, the employer argued that medical marijuana-related services should not be covered under the MWCA, and that by covering such services, the employer would be in violation of federal law and subject to the risks of prosecution. In support of its argument, the employer also cited Maine’s medical marijuana statute, which states that it may not be construed to require a government medical assistance program or private health insurer to reimburse an individual for costs associated with the medical use of marijuana. The employer won the case.
Other states, including Arizona and Montana, are in agreement with Maine and have taken the position that a workers’ compensation insurance carrier cannot be compelled to pay for medical marijuana because the possession and use of marijuana is still illegal under federal law.
Federal Opinion
Workers’ compensation payers rely on evidence-based guidelines when making treatment decisions. Since medical marijuana is considered a Schedule I substance and is not included any workers’ compensation treatment guidelines, many payers are opting to deny coverage.
Benefits of Covering Medical Marijuana
There is significant interest in using medical marijuana as an alternative to opiates for the management of chronic pain. Furthermore, alternative treatments may pave the way for medical marijuana, as meditation, exercise, mindfulness, yoga and cognitive behavioral therapy have proven successful in eliminating opioid use. However, insurers have historically been more likely to pay for opioids than alternative treatments.
Drawbacks of Covering Medical Marijuana
In states that have legalized medical or recreational marijuana, workplace safety is a concern. It is the employer’s responsibility to foster an environment devoid of harmful hazards. If a company employs a medical marijuana user, this person might experience side effects that could lead to a workplace injury.
Furthermore, drug-free workplace policies could be affected since marijuana continues to be categorized as a Schedule I substance. For example, although an employee may be authorized to use medical marijuana, he or she could still be terminated if found positive for marijuana in a random drug test.
Federal Outlook
It’s too early to anticipate President Donald Trump’s official policies with regards to medical marijuana. However, on the campaign trail, he said he was in favor of rescheduling marijuana as a Schedule II substance, which is in contrast to the Obama administration’s stance. In 2016, former President Barack Obama claimed that more research was needed into the drug’s possible medical benefits.
New legislation and court decisions are continuing to develop, which will affect workers’ compensation treatment decisions. For example, on Aug. 29, 2013, the Department of Justice published a memorandum authored by former Deputy Attorney General James Cole, outlining a new set of priorities for federal prosecutors operating in states which had legalized the use of marijuana. The “Cole memo” encouraged law enforcement agencies to focus on the most critical federal priorities, such as preventing the distribution of marijuana to minors. By doing so, the federal government is taking a more hands-off approach in jurisdictions that have enacted laws legalizing marijuana.
Also protecting the marijuana industry is the Rohrabacher-Farr amendment, which prohibits the federal government from spending money to target medical marijuana businesses. However, the federal government could still go after small businesses that don’t have the resources to fight. And if this amendment isn’t renewed by Congress annually, the protection will disappear, and the industry could be set back for years.
Until the discrepancy between state and federal law is resolved—particularly in regard to drug-free workplace policies—Scurich Insurance will continue to monitor the landscape for new developments that could have ongoing ramifications for the industry and could forecast marijuana reclassification.
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According to a report by the U.S. House of Representatives’ Committee on Education and Labor, a staggering 69 percent of all workplace injuries and illnesses may not be represented in the Bureau of Labor and Statistics Survey of Occupational Injuries and Illnesses, which many trust as a gauge of the safety of American workplaces. On a corporate level, not reporting or underreporting workplace injuries can have serious ramifications for the organization and the employer, which can include fines, exorbitant and unnecessary, health costs and more.
Research has found that the employer’s behavior, policies and attitude are key determinants in a worker’s decision to report an injury. Not only is it essential that employees are educated on the importance of reporting injuries, it is also important to examine your company policies so you are not inadvertently discouraging reporting. The consequences of underreporting can be severe.
Consequences of Underreporting
The unfortunate trend of injury underreporting can have serious ramifications at both the industry and company level. Widespread underreporting can be quite damaging to workers’ compensation rates on a large scale. Employers may not realize it, but such an underreporting problem may lead to more audits by insurance companies of their clients and higher rates for everyone. Many employers erroneously believe that reporting injuries leads to audits and higher rates.
Underreporting may lead to more audits by insurance companies and higher rates for everyone industry-wide. Many employers believe that reporting injuries leads to audits and higher rates.
At the company level, underreporting injuries can be quite costly for the employer. If it is an OSHA-reportable incident, the employer may face significant fines if it is not properly recorded or reported.
In addition, often when an injury isn’t reported or properly cared for immediately, it worsens and leads to higher health care costs and more lost time. Even if it is never reported as a workplace injury, the employer still loses out on health care costs and productivity.
If it is eventually reported, it becomes much more difficult to prove that it was workplace-related. Additionally, a study reported by the Hartford Financial Services Group found that injuries reported four or five weeks after the incident are 45 percent more expensive than injuries reported within the first week due to increased health costs and possible legal fees, or even a lawsuit, associated with late reporting.
One of the best ways to control workers’ compensation costs is through early reporting and intervention. Not only will it save money in health bills and legal fees, but it will also help to constantly improve your safety program. When there is an injury, consider it an opportunity to examine current safety procedures and decide if there is a suitable change that could be made to prevent similar injuries in the future.
Thus, prompt reporting can be a productive element to your safety program in your quest to always strive for the safest work environment. Rather than accepting a vicious circle where injuries are not reported and thus nothing is done to fix the problem, leading to more injuries, take advantage of injury reporting as a proactive solution to safety.
Reasons for Underreporting
There are several reasons why employees may not report injuries immediately or at all.
Incentive Programs
Many employers have reward or incentive programs to promote their safety initiatives, such as rewards for going a certain number of days without an injury. This can create a negative attitude toward reporting an injury, since doing so could cost that employee, a co-worker or a superior a reward or bonus.
Having incentive programs are a good idea, but a more effective strategy is to reward positive, safe behaviors. This can include reporting a safety hazard, attending a safety meeting or training class or equipment maintenance. Rather than rewarding for days without an injury, reward behaviors that strive to avoid injury, or even reward employees for prompt reporting when an injury occurs.
Fear of Negative Ramifications
Some employees fear that reporting an injury will create an image of them as weak to their co-workers and managers. He or she also may fear that such an image will be a detriment to his or her career.
Dispel this fear by assuring all employees that reporting an injury will have no negative impact on their job, and ensure follow through on all levels of the company. Work to promote a safety culture where prompt injury reporting is encouraged and praised. Injury reporting should never be frowned upon, even subtly or behind closed doors. If employees find out you are angry about a reported injury, he or she is less likely to report an injury in the future.
Some companies have a policy mandating drug testing after any incident whether or not there is evidence of drug use. This deters some employees from reporting injuries as well. Consider making the drug testing conditional depending on the circumstances of the injury and whether there is evidence that drug use was a factor.
For more information about injury reporting or your company’s workers’ compensation and safety programs, please contact Scurich Insurance at 831-661-5697 today.
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For the unprepared, workers’ compensation (WC) issues can be both confusing and costly. Fortunately for employers, there are ways to actively engage WC issues to influence their outcomes.
Through management controls and active involvement in the WC process, your organization can effectively influence related costs. To do so you will have to establish a number of your own processes that guide decision making throughout your organization.
By developing a cohesive workers’ compensation process, you can play an active role in reducing related costs.
Areas requiring WC management can be divided into three main categories. These categories include facets that may range from the simple to the complex, but as a whole, address vital issues that can negatively influence WC costs in your company.
Workplace Safety Means Fewer Claims
Simply put, reducing claims reduces costs. Establishing a safety-minded culture throughout every level of your company is essential to keeping workers injury free. However, establishing such a culture isn’t an overnight solution. To be successful, an ongoing commitment to safety must be made. Such a commitment must be supported by management and given the necessary resources to succeed.
Developing comprehensive safety policies for employees builds a firm foundation for your safety culture to grow. Such policies also encourage OSHA compliance, further improving your safety efforts while helping you avoid costly fines.
Mitigate Loss After an Injury
Unfortunately, even with all the right programs in place, it is still possible for accidents to happen. When a workplace incident occurs how you respond can greatly influence the outcome of the claim. Prompt claim reporting is essential to keeping costs down.
It is also important to have a designated injury management coordinator, someone who can supervise open claims and work with both employees and medical personnel to facilitate the timely recovery.
The longer an employee is out of work the more expensive their claim will be. Return-to-work programs that allow injured employees to come back to work at a limited capacity during the recovery process, are one of the most effective tools business owners have to reduce the severity of a claim.
Managing Your Mod
Insurers use what is known as an experience modification factor, or mod, to calculate the premiums you pay for workers’ compensation coverage. By managing your exposures and promoting safety it is possible to manage your mod and decrease your premium rates.
Like a good safety program, controlling your mod is an ongoing process. To reap the benefits of lower premiums you will have to keep in regular contact with your insurance provider to ensure they have the most accurate data to use in their calculations.
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A hot topic today in the manufacturing industry is nanotechnology, which is the control of matter on a molecular scale between one and 100 nanometers. This intricate methodology involves processing tiny materials to produce nanoparticles or nanomaterials.
To give a measure as to how small the building blocks are in these materials, a nanometer is about 50,000 times smaller than the width of a human hair and 10 times smaller than the size of a typical, single germ.
Today, the National Institute for Occupational Safety and Health (NIOSH) reports that new consumer products manufactured using nanotechnology are coming on the market at the rate of about three or four per week.
While nanotechnology is an exciting new field, it also may pose potentially serious for workers who handle nanoparticles. Keep safety and prevention in mind to protect your workers and your company.
Nanoparticles are already used in paints, car parts, eyeglasses, cosmetics, tennis racquets and clothing, and their use is expected to increase in the near future.
However, researchers and employers are not without doubts about this revolutionary technology. Concerns about the impact of nanomaterials and nanoparticles on the environment and on workers’ and consumers’ health have surfaced in the past five years.
Nanotechnology Hazards in the Workplace
The biggest risk in using nanotechnology in the production of materials is that nanoparticles are so small that they can assume different physical, electrical or magnetic properties than they normally would as larger particles. According to the American Society of Safety Engineers, nanoparticles also have a greater ratio of surface area to mass, and thus they have a higher level of reactivity, combustibility and absorption capacity.
The concern in all these areas is that when ingested, inhaled or even exposed to skin, scientists are not sure how the tiny particles will react with the body systems. What is known is that if they get into the body in any way, the particles are small enough to permeate through tissue.
Some evidence suggests that nanoparticles in the body create free oxygen radicals, which are atoms, molecules or ions with unpaired electrons and an open shell configuration. These particles are more likely to bond in unwanted side reactions, leading to cell damage and possibly cancer.
Situations that present significant (and potentially very harmful) exposures to your employees include:
- Working with nanomaterials without proper protection
- Pouring or mixing nanomaterials
- Working with nanomaterials when there is a high degree of agitation, like in extreme heat
- Generating nanoparticles in the gas phase
- Handling nanoparticles that are powders
- Maintenance of equipment used to produce or fabricate nanomaterials
- Cleaning of any dust collection systems.
Protect Your Employees
Researchers are also unsure if the current standards of ventilation and filtration systems will be 100 percent effective when working with nanoparticles because of their extremely small size. Because of the tremendous usefulness and prevalence of nanotechnology, combined with scientists’ uncertainty of its effects, many compare this development to asbestos and the government control of its use in the 1980s. The European Union’s Occupational Health and Safety agency issued a report citing nanoparticles as the number one emerging risk to workers. So what can your business do to protect workers from harm?
- Require special protective clothing for your employees. Research indicates that nanoparticles can probably penetrate traditional knit clothing. Ironically, clothing weaved using nanotechnology to prevent the entrance of minute particles could prove to be the most effective.
- Require all employees to wear eye protection even when not working directly with nanoparticles or nanomaterials. The particles tend to behave like gasses, settling more slowly than other particles and dispersing widely while also re-suspending easily.
- Restrict consumption of food and drinks to non-work areas. Nanoparticles could be just as harmful if ingested as if they are inhaled due to their ability to permeate through organs and into the bloodstream.
- Provide shower and locker room facilities for all employees, and require workers to shower and change clothing when leaving their work area. Be active in preventing the spread of nanoparticles outside the workplace.
- Educate your employees. Give them the latest information on nanotechnology news and trends so they are aware of the dangers and are sure to use extra precautions.
- Reduce unnecessary exposure. Limit the number of employees working with or around nanoparticles by using safe handling procedures or a closed system when working with high volumes of nanoparticles.
Looking Ahead
Nanotechnology could be a huge opportunity for growth in your industry. The American Society of Safety Engineers predicts that by 2019, 50 percent of all products produced will be influenced by nanotechnology, which will provide jobs for more than 1 million workers. In the future, nanotechnology will likely give rise to items that help prevent risk or danger in the workplace, such as noise absorption materials, fire retardants, advanced ventilation control and quick, efficient cleanup of pollutants and hazards.
However, the future could also hold health problems for workers exposed to nanotechnology, and lawsuits for companies who did not do enough to protect employees. Because the health hazards are so uncertain, you should create your safety and protective policies on the side of extra caution to protect both your employees and your company.
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Even though farm machinery manufacturers try to ensure that their products are safe by equipping them with safety guards, agricultural work presents many hazards. Many times, workers suffer injuries because of human error from taking a shortcut, ignoring warning signs, not paying attention or not following safety rules.
Here are some of the most common farm machinery hazards, as well as several safety recommendations to reduce your risk of injury:
Shear Points and Cutting Points
- Shear points occur when the edges of two objects move close together and can cut soft material (example: auger).
- Cutting points occur when an object moves forcefully and is able to cut (example: sickle blade).
To avoid injuries, remain alert while operating machines with shear and cutting points. Also, advise others to watch out because some cutting machinery can throw objects while in use.
Pinch Points
- Pinch points are created when two rotating objects move closely together, one moving in a circle.
- Hands and feet can get caught in pinch points, or other body parts can get pulled into pinch points when loose clothing becomes entangled in the machine.
To avoid injuries, wear tight-fitting clothing and never reach over or work near rotating parts. Also, identify places where pinch points can occur and avoid these areas.
Wrap Points
- When exposed machine parts rotate, they create wrap points. Loose clothing can get caught in the moving parts, and consequently pull workers into the machine.
To avoid injuries, shield potential wrap points before beginning your work. If wrap points cannot be shielded, paint them a bright color to remind yourself that they are there.
Crush Points
- Crush points occur when objects move toward one another, or one object moves toward a stationary object. Workers can be crushed in between.
Block equipment securely to avoid fatal crushing injuries.
Free-wheeling Parts
- Some equipment with moving parts continues to spin after being shut off.
To avoid injuries, wait until the machinery has completely stopped before touching it. This can take several minutes.
Hydraulic Systems
- When servicing, adjusting or replacing parts on machines with hydraulic systems, workers can face high-pressure blasts of hydraulic oil. This can cause injury and/or burns to the skin.
To avoid injuries, do not inspect hydraulic hoses with your hands because the hydraulic fluids can puncture the skin.
Take time to become familiar with the potential hazards of the machinery you work with and remember to always put safety first!
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OSHA frequently introduces or revises safety rules to remain up to date with new technologies and workplace procedures. In early 2017, two new major rules regarding injury and illness reporting will be in effect that all employers and establishments should be aware of.
OSHA’s electronic reporting rule will require some establishments to electronically submit data from their work-related injury records to OSHA. This rule becomes effective on Jan. 1, 2017. Under the new rule, establishments with 250 or more employees must electronically submit data from their OSHA 300, 300A and 301 forms. OSHA will then remove any personally identifiable information (PII) and post the establishment-specific data on its website.
In response to the electronic reporting rule, OSHA released an anti-retaliation rule that went into effect on Dec. 1, 2016. This rule includes two major requirements for employers:
- Employers must inform their employees that they have a right to report work-related injuries and illnesses without any form of retaliation.
- Employer must ensure that “reasonable” procedures are in place for employees to report work-related injuries and illnesses.
Because these two new rules may dramatically change how establishments and employees report injuries and illnesses, it’s important for employers to understand their reporting responsibilities. For more information, contact us today and ask for our two compliance bulletins, “OSHA Issues Final Rule on Electronic Reporting” and “OSHA’s Anti-retaliation Rules to Take Effect Dec. 1, 2016.”
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