Category Archives: Workplace Safety

Protecting Yourself At Work: What To Do If There Is An Active Shooter

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who has been practicing before the New York State Workers’ Compensation Board representing injured workers for more than 27 years, I am drawn to organizations that assist workers. That’s why I am a member of the New York Committee for Occupational Safety & Health (NYCOSH), whose mission notes that every worker has the human right to a safe and healthy workplace and that workplaces injuries are often preventable. As a member, I receive many emails with various announcements regarding workplace safety, as well as statistics of injuries and deaths that occur on the job, many of which are preventable.

It is a sign of the times that on May 23, 2017, I received an email about educating workers on how to best respond in case of an active shooter. NYCOSH, along with the New York City Central Labor Council (NYCCLC), was sponsoring the event that was meant to educate participants on what actions to take to prevent and prepare for potential incidents, including what to do when an active shooter enters the workplace. Many of the cases that make front page news are mass shootings or those in the name of terrorism. Few of us can forget the Islamic extremist, who along with his wife fatally shot 14 of his co-workers at a Christmas party. Many of us go about our workday never anticipating a disgruntled employee, a client harboring a grudge, a terrorist, or a coworker intent on robbery, who may come to our workplaces with murder on their minds. When NYCOSH set out to sponsor their recent event trying to deal with a growing problem in this country, there was no way of knowing that workplace shootings would be in the national headlines three times in just two weeks. 

Last week we were shocked and appalled by the images of Republican Senators and their colleagues being shot at by a deranged person not happy with current politics. While many of our elected officials have heavy security when they are at work in the Capital’s office buildings, these members were on a ballfield early in the morning practicing for a charity baseball game taking place the next day. Despite the close proximity of the Capitol Police there to protect Steve Scalise, the current United States House of Representatives Majority Whip, five people were shot. Thankfully the sole fatality was the shooter himself.

In Orlando in early June, a disgruntled ex-employee systematically shot and killed five coworkers and then himself. A week later, a UPS employee in San Francisco walked into a UPS facility and killed three coworkers before killing himself.

According to the Bureau of Labor and Statistics, in 2015 there were 354 homicides by shooting at the workplace. There were 307 in 2014, 322 in 2013, 381 in 2012, and 365 in 2011. Based on these statistics, it is clear that this is not an issue going away anytime soon. These are scary times and we all need to prepare for this new normal. 

While I was not able to attend the NYCOSH event, I did go to the website for the U.S. Department of Homeland Security, which offered these suggestions for responding when an active shooter is in your area.

  • Evacuate if you can.
  • Run as fast as you can and leave everything behind.
  • Just get out if possible.
  • If there is no accessible escape route, then hide somewhere and lock and blockade the door and silence any noise such as a radio or cell phone.
  • Lastly, if your life is in imminent danger, take action and try to incapacitate the shooter.
  • Throw things.
  • Use anything as a weapon.
  • Don’t go down without a fight.

It’s unfortunate that we even have to talk about protecting ourselves from active shooters. But in today’s day and age, we can never be too careful. As a mother, I worry for the safety of my children when they walk out the door as I’m sure many of you do as well. As a lawyer, I worry about the safety of workers every day on the job who are continually dealing with workplace injuries that could have been prevented.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Nail Salon Workers: Know Your Rights

Today’s post comes from guest author Amanda Katz, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

The nail salon industry in New York State provides thousands of jobs. However, many nail salon employees endure unsafe working conditions. They are exposed to many chemicals; sometimes without proper ventilation. Because of this, New York State has enacted a series of nail salon reforms to protect workers’ from injuries or illnesses.

These new reforms include safety requirements that dictate that the owner of a salon must give employees protective equipment at no cost. Specifically, workers have the right to use a respirator when buffing or filing nails and using chemicals. Furthermore, workers’ have the right to use protective gloves and eye equipment. Employers must also comply with certain ventilation requirements. These changes will ensure that nail salon employees are protected. For more information regarding nail salon requirements you can visit: https://www.ny.gov/programs/nail-salon-safety-what-you-need-know.

If you get sick (in lawyer-speak “develop occupational illness”), because you are exposed to chemicals at work, you may be entitled wage replacement benefits and medical coverage through the New York State workers’ compensation system.

There is a time limit for filing your claims. The limit is the later of:

  1. two (2) years from the date of your disability and
  2. two (2) years from when you knew or should have known the disease was due to your exposure at work.

You do not need to have lost time from work to have a valid claim for workers’ compensation benefits.

Phillips 66 Refinery Fined Nearly $325,000 for Workplace Violations

Today’s post comes from guest author Kit Case, from Causey Wright.

Phillips 66 Refinery has been fined $324,000 for failing to correct serious workplace safety and health violations. A Department of Labor & Industries (L&I) inspection of the Ferndale, WA facility found the violations put refinery workers at great risk in case of a fire or explosion.

L&I cited the refinery for three instances of not correcting violations that it was previously cited for in September and October of 2014. These are considered “failure to abate” serious violations.

The 2014 citations are under appeal to the Board of Industrial Insurance Appeals. State law requires employers to correct hazards even if the violations are under appeal, unless a “stay of abatement” is granted to allow a delay in making the corrections. The company’s stay of abatement request was denied by the board.

Two of the violations, each with a penalty of $108,000, involve the refinery’s firefighting and fire suppression systems. Phillips did not inspect or follow recognized and generally accepted good engineering practices in respect to the firefighting water tank or the buried firefighting water distribution piping. Inspection and maintenance of these systems is required by state regulation and the National Fire Protection Association. The company also failed to address the potential loss of firefighting water, which puts employees and emergency responders at risk of serious injuries, disability or death if the system were to fail during a fire or explosion.

L&I cited Phillips for a third “failure to abate” serious violation for not consulting established, peer-reviewed industry references before writing a policy related to opening chemical piping. This violation also comes with a $108,000 penalty.

The company’s hazard assessment allowed workers to be potentially exposed to hydrogen sulfide, a poisonous gas, and explosive flammable hydrocarbon vapors at much higher concentrations than considered safe. Employers in high-hazard chemical industries are expected to make sure that their internal policies and guidelines reflect current good engineering practices across those industries and that they meet local regulations, which may be stricter than national regulations.

The employer has 15 days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.

 

Photo credit: RVWithTito via Foter.com / CC BY

What Happens If I Get Hurt at My Second Job?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

An estimated 7 million Americans work at least two jobs. As the holidays approach, many people will take on holiday jobs as well. Getting hurt at a second job or a holiday job can also create problems at your full-time or regular job. This post will help you navigate some of those issues:

  1. What benefits are you entitled to when you are hurt at a second or holiday job?Your benefits are limited by the wages you are receiving at your second job. You might be able to increase this amount with tips or other perks, but you cannot be paid for wage loss from your first job. If you do have permanent disability, that will be paid based off of a 40-hour week even if you worked part time.

    Receipt of workers’ compensation benefits assumes that you are an actual employee and not an independent contractor. For most relatively low-wage part-time work, this is a fair assumption. But since I wrote my holiday job post back in 2013, there has been the emergence of ride-hailing companies like Uber and other sharing-economy companies that have blurred the lines between employee and independent contractor. If you get hurt working for one of these companies, you should contact an attorney, as the distinction between an employee and independent contractor is very fact specific.

  2. How does a work injury at a second job affect your benefits at your regular job?

     

    Health insurance

    Assuming your other job’s workers’ compensation insurance company picks up your medical benefits, your health insurance from your regular job would not be affected. But in a disputed case, you may have to use health insurance from your regular job to pay for your workers’ compensation injury at your second job. In that case, you should list workers’ compensation from the company where you were hurt as the primary insurance and your private health insurance as your secondary insurance. Also be aware that if you settle your workers’ compensation claim, you may have to pay back your private health insurance. If you go to trial and win an award of medical benefits, your medical providers should refund the private health insurance and reimburse you for out-of-pocket expenses. In a disputed case, you should contact an attorney not only to get benefits but also to health navigate reimbursement.

    Short-term and long-term disability

    Larger employers will often have short-term and long-term disability policies to help employees make up for lost income. These are a mixed bag. Some won’t let you collect benefits for work injuries, some may allow you to double collect workers’ compensation and disability, while others may require you reduce benefits. These policies often have repayment policies if a workers’ compensation case is settled as well. It is helpful to have a lawyer to help you with this process as well.

  3. How does a work injury at a second job affect your employment at your regular job? 
    Assuming your injury requires you to miss time from work, you can claim the Family and Medical Leave Act, assuming your employer has 50 employees, you have worked there for a year, and you have worked there for at least 1,250 hours over the last year. Assuming your employer has 15 employees, your employer would be required to make some reasonable accommodations for your injury under the Americans with Disabilities Act. You should reach out to a lawyer if either employer requires you to return to work without restrictions. The Equal Employment Opportunity Commission has stated in final regulations implementing the Americans with Disabilities Amendments Act of 2008 that policies that force employee to return to work without restrictions are unlawful. Ironically, if you are hurt at your second job, that employer is probably more likely to return you to work at light duty so that they can avoid or reduce what you are owed in temporary benefits. The new ADA regulations were intended in part to end how work-caused and non-work-caused disabilities are treated.

Union-Backed Group Pushes for Better Security at Wal-Mart

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Recently, a Wal-Mart employee in Norfolk, Nebraska, was cut on the wrist by an intoxicated customer at 2:45 a.m. Unfortunately, these types of incidents are all too common at Wal-Marts, which is why one group is taking action.

The UFCW-backed group, Making Change at Wal-Mart, is pushing for increased security at Wal-Mart in the wake of an investigation by Businessweek that on average, one Wal-Mart a day is hit by a violent crime. The issue of crime at Wal-Mart is a safety issue for employees as well as shoppers.

Wal-Mart’s crime rate is six times higher than its nearest competitor, Target. Security experts attribute this in part to the fact that Wal-Mart stores have less staffing than Target stores, and that Target spends more on security. Experts also attribute Wal-Mart’s higher crime rate to the fact that it stays open 24 hours a day. The recent injury to the Wal-Mart employee in Norfolk, Nebraska, highlights the risk of overnight retail work.

Beech Grove, Indiana, Mayor Dennis Buckley became so fed up with police calls to the Wal-Mart in his town that he had Wal-Mart declared a public nuisance and fined Wal-Mart $2,500 for every police call. Mayor Buckley’s actions underscore the role that local government can play in ensuring the safety and security of retail employees. Convenience-store clerks are also vulnerable to violent crime on the job. Cities like Irving, Texas, and Milwaukee have passed city ordinances mandating security for convenience-store clerks. Both Omaha and Lincoln have city elections coming in a few months, so voters and groups supporting workers should press the candidates on the issue of retail-worker safety.

States, who traditionally oversee workers’ compensation, should consider using their 10th -amendment police powers to protect retail workers. For example, the Indiana Department of Labor did a study documenting violence against convenience-store clerks. Finally, injuries to retail workers through violent crime are covered by workers’ compensation. State workers’ compensation systems need to remain viable so unscrupulous retailers are not able to shift the costs of violent crime against their employees onto taxpayers.

Injured As A Result of 9/11? The World Trade Center Accidental Disability Deadline Is Approaching

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

I recently traveled to Virginia with most of my immediate family to celebrate my father’s 80th birthday. While he is not in the best physical shape, he was clearly touched that we all came to wish him well as he celebrated this milestone birthday. As an added bonus, we also got to visit with my grandmother, Mary Walsh, who will celebrate her 109th birthday in August. 

My dad was a New York City firefighter for many years. Unfortunately, quite a few of his current health issues were caused by his exposure to smoke while battling fires during the worst years – the 1970s and 1980s – the City of New York has seen in terms of firefighting calls. Along with the smoke inhalation, years of carrying heavy packs, rescuing people and sustaining burns, broken bones, and other injuries have wreaked havoc on his body. While he saw more than his share of death and destruction, it pales in comparison to the losses the City sustained on September 11, 2001, when 411 emergency responders, including 343 firefighters, lost their lives. Even more distressing is that according to statistics, more than 850 additional first responders have died as a result of 9/11 related illness since that day. Just two weeks ago in fact, retired firefighter Robert Newman from Patchogue, Long Island, died from cancer as a result of breathing in toxins at the World Trade Center.

Many of these first responders initially retired without realizing the extent of their illnesses, and that they were entitled to compensation for their injuries. While Workers’ Compensation benefits are not available to uniformed employees of the FDNY or NYPD who participated in the rescue, recovery, or cleanup operations, they are still eligible for certain benefits.

In 2005, the World Trade Center (WTC) Disability Law took effect in New York State. This law establishes a presumption that certain disabilities for those who participated in the rescue, recovery, and cleanup at the World Trade Center and other specified sites would entitle them to accidental disability retirement benefits subject to certain criteria including when, where, and for how long they worked at a WTC site. Subsequent amendments expanded the list of individuals eligible, extended the filing deadline, and added qualifying conditions.

The bill allows many police officers and firefighters who retired with non-WTC accidental disabilities to have their retirement reclassified as an accidental disability related to the WTC disaster. Death benefit legislation enacted in 2006 provides an accidental death benefit to certain city and state employees within this same eligibility group. If approved, World Trade Center accidental disability retirement will become effective as of the date of reclassification and not retroactive to the date of retirement.  

If you are disabled, you should file an Application for World Trade Center Accidental Disability

Presumption. If you have not already done so, you must file this Notice on or before September 11, 2018. In order to preserve your right to file at some time in the future if you are presently not disabled, you will also need to file an Application for World Trade Center Notice on or before September 11, 2018.  While you do not need an attorney to represent you, it may be in your best interest to seek the advice of a professional as there are certain restrictions, deadlines, various forms, and qualifying conditions that could make filing the application difficult. 

The after effects of 9/11 continue to take their toll even after all these years, with no immediate end in sight.  We are grateful that there is at least some small consolation for our first responders who should at least not have to be worried about financial issues for themselves and their families. 

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Welders Exposed To Increased Risk Of Parkinson’s Even If Manganese Within Legal Limits

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Welders have an increased risk of Parkinson’s even if manganese exposure is within legal limits according to a recent article in the on-line journal Neurology, which is the journal of the American Academy of Neurology.

Welders who did flux core arc welding in confined spaces were particularly vulnerable to Parkinson’s according to the study. Workers in Nebraska who would attempt to get compensation for manganese exposure would face problems if the onset of symptoms happened after an employee stopped working. A court case in Nebraska held that an employee who didn’t experience symptoms of an occupational disease until after he retired was not entitled to be compensated because he wasn’t earning wages when the injury manifested. Welders and others who are exposed to manganese on a regular basis should recognize the early symptoms of Parkinson’s such as tremors, difficulty sleeping, constipation and loss of smell and report these symptoms to their doctors and employers as soon as possible so they can be treated under workers compensation and receive workers compensation disability benefits.

The study comes on the heel of a final flurry of OSHA rule making at the Obama administration. In May 2016 OSHA finally adopted a silica exposure rule for workers exposed to sand particles which can cause lung problems. Earlier this month OSHA lowered exposure thresholds for berrylium which is another pulmonary hazard, particularly for construction workers.

The example of beryiluim could explain why exposure to manganese levels at supposedly safe levels can lead to occupational disease. Those supposedly safe levels of exposure may not actually be safe. Another explanation about why supposedly safe levels of manganese lead to Parkinson’s could be found in the practices of the coal industry. Howard Berkes of NPR and Ken Ward Jr., author of the excellent Coal Tattoo blog for the Charleston (WV.) Gazette Mail teamed up to report on how coal companies would fudge coal dust level testing to make it appear that miners were exposed to much lower levels of coal dust than they were actually exposed.

OSHA’s rules could also be reversed by Congress under the Congressional Review Act. In 2001, the OSHA ergonomics rule that would have reduced musculo-skeletal injuries was reversed under this law.

Cutting Corners Costs Lives: Non-Union Work Sites Twice As Dangerous As Union Sites

This large inflatable rat is a common sight at protests of non-union worksites in New York City.

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who practices in the metropolitan area, I often find myself traveling into New York City. I am amazed at the amount of construction that I see; the cityscape is changing and evolving rapidly. This construction boom means more business, a steady paycheck for workers, and more money for the city and state. Unfortunately, with the rise in construction also comes a rise in safety violations, injuries, and fatalities.

The New York Committee for Occupational Safety and Health (NYCOSH) recently issued a report called Deadly Skyline regarding construction fatalities in New York State. A summary of their findings notes that from 2006 through the end of 2015, 464 construction workers died while on the job, with falls as the leading cause of death. When a fatality occurred, safety violations were inherent in more than 90 percent of the sites inspected by the Occupational Safety and Health Administration (OSHA). The report pointed out that non-union work sites had twice the safety violations of union sites, and in 2015, 74 percent of the fatalities occurred on non-union projects with the majority of the fatalities involving Latinos.       

It is painfully obvious that shortcuts and cost-saving measures result in injury and death. Many employers use misclassification as a means to save money. Misclassification occurs when an employee is labeled as an “independent contractor” so that a business owner doesn’t need to pay Workers’ Compensation insurance, Social Security, Medicare, or unemployment taxes. Some even resort to paying employees off the books as well in an effort to save money. This may not seem troublesome until you realize that this is a one-sided deal that really only benefits the employer. According to the NYCOSH report, misclassification of workers allows an employer to skirt the safe workplace requirement as OSHA does not cover independent contractors.

Employers must provide Workers’ Compensation insurance for their employees, and typically must notify their Workers’ Comp carrier as to the number of employees they have and the type of work they do. A risk analysis is performed and then employers are assigned a premium to pay in order to cover their workers in case of injuries. If injuries occur, premiums may be increased accordingly. Obviously employers in high-risk businesses must pay more for their premiums than those with employees involved in low-risk jobs. As injuries on misclassified workers do not add to an employer’s bottom line, there is less incentive to provide safety measures if it cuts into profits.

To make construction sites safe, NYCOSH recommends adequate education and training as well as legislation to punish those whose willful negligence causes a death. They also recommend passage of the NYS Elevator Safety bill that requires the licensing of persons engaged in the design, construction, operation, inspection, maintenance, alteration, and repair of elevators. It would also preserve Section 240 of the New York Labor Law, commonly referred to as the “scaffold law,” which governs the use of scaffolding and other devices for the use of employees. Weakening the Scaffold Law would shift safety responsibility from owners and general contractors who control the site, to workers who do not control the site and are in a subordinate position.

It is a true tragedy when someone is maimed or killed in an accident that could have been prevented. Not every employer engages in these tactics, and most workplaces are generally safe spaces for workers. However, even one death is too many. 

 

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.