Tuesday, May 23, 2017

Who is NOT covered by Workers' Compensation?

For the last few months I have been researching the public policy criteria for determining who is  covered by workers’ compensation and who is not.  From a public policy perspective, an accurate statement of "percentage of the employed labour force covered by workers' compensation" is an important foundational statistic to any public policy evaluation or reform.  Some data do exist but, so far, it appears:

  • Stated workers’ compensation coverage rates are likely over-estimated
  • Few jurisdictions provide actual counts (or direct, well documented estimates) of workers mandatorily covered
  • No jurisdiction publishes counts of those who voluntarily “opt in” to coverage
  • No jurisdiction publishes counts of persons (as opposed to the number of waivers issued) exempted by waivers, elections, or opt-out provisions
  • Public policy justifications for exclusions or exemptions are almost non-existent
  • Where justifications are offered, they primarily rest on the historical evolution of workers' compensation coverage

While there are some published coverage estimates based on workers’ compensation data regarding the numbers of workers covered, most do not explain their methodology.  Many rely on external data sources (unemployment insurance data, employment surveys).  

Even the wording surrounding coverage in workers’ compensation is not consistent.  In some cases, certain industries, occupations, worker categories, or employers are “exempted”, others “excluded”, and still others may “seek a waiver” from the otherwise universal or sectoral coverage rules.  Often, there are rules that allow some exempted or excluded categories to apply for coverage on an optional or “elective” basis.  Rarely, however, are detailed estimates of number or proportions of the work force within and beyond coverage provided at the state or provincial level.    

The inconsistencies in workers’ compensation coverage rules have real-life implications for those in the scope of coverage and outside it.  The lack of consistency in coverage rules may lead to erroneous assumptions that can leave workers and their families destitute and employers without the protection of the workers’ compensation exclusive remedy.  Worse yet, the lack of workers’ compensation coverage externalizes health care costs of work-related injuries to other medical plans (private and public) thus raising costs for the funders (including taxpayers as well as individual and group disability insurance plans). 

Workers’ compensation premiums are often justified as a means of confining the financial costs of work-related injury, illness and disease to the industry that gives rise to them; if workers’ compensation costs rise, there is an incentive to greater investment in safety and prevention.  For workers and employers outside the workers’ compensation scope of coverage, those incentives may be less clear and far less direct.  More importantly, those financial costs for wage replacement and medical aid (diagnostics, treatment, rehabilitation) are externalized to others.  If someone else bears the financial cost of work-related injury, why bother invest in prevention?

I’ve asked several government policy branches responsible for health and workers’ compensation to provide their public policy rationale for limiting the scope of workers’ compensation coverage.  The few formal responses I have received so far are like this one (I won’t name the jurisdiction):

“Many of the [excluded] industries listed…  were deemed ‘low risk’ while others actively lobbied to be exempt from coverage.”

“Low risk” is not defined and “active lobbying” implies that those with good lobbyists are the only ones likely to be excluded. 

In my research so far, I have examined about 70 jurisdictions in Canada, the U.S. and Australia.  The public policy approaches for determining who is and who is not in the scope of coverage fall into the following general categories of workers’ compensation coverage:

  • Optional inclusion (Texas, for example)
There are three public policy approaches to those excluded from coverage:
  • Hard exclusion:  NO option to come under coverage for any reason
  • Soft exclusion (Voluntary inclusion):   Option for exempted or excluded to “opt in” or enter voluntarily into workers’ compensation coverage
  • Waiver exclusion:  Ability to “opt out” of coverage if certain conditions are met
The following list provides some of the occupations and industries that may be excluded from workers’ compensation coverage (NOTE: Many of those occupations/industries in this list are in fact mandatorily covered in some or most jurisdictions).  The list is not comprehensive nor is it universal.  The jurisdictions mentioned are illustrative only; others may or may not have similar (or more or less restrictive) provisions for a given occupation or industry.  This listing is provided here to illustrate the range of exclusions and the variability in the criteria among various jurisdictions:

Agricultural / farm workers /harvest help/Gardeners – Exempt if 5 or fewer in Florida, if family farm and less than  $8k payroll in Minnesota

Babysitters and Child Care -  Child care before or after school of less than 15 hours per week is optional in British Columbia but mandatory if more than 15 hours per week.       

Cab / vehicle for hire drivers – Independent taxi drivers exempt in Massachusetts. Taxicab drivers whose compensation is by contractual arrangement are exempt in Alaska

Casual employees  - Exempt if less than 26 hours weekly in Connecticut,  if less than 20 consecutive days in Kentucky

Cleaning persons/ Private household workers-  Household or domestic employees whose typical duties include house cleaning and yard work are exempt in Montana. Exempt if less than 20 hrs/week and 6 less than 6 weeks in any 13 week period in South Dakota.

Commission-paid salespersons—This is often listed as a separate category from real estate and insurance commissioned sales but criteria vary.                 

Corporate Officers/Exec Officers / Directors /Major Shareholders – Exemption formulas vary widely.  Elective for up to 10 shareholders with 10% or more of shares in Michigan, 5% ownership in Pennsylvania, 25% share ownership in Nebraska           

Cosmetologists, Barbers- exempt in Montana

Domestic servants – Exemptions from coverage if less than 52 hours in  90 days in California, under 240 hours per quarter in DC, if less than $160 by 1 employer in any 3-month period in Ohio

Entertainers – Musicians exempt pursuant to a service contract in Louisiana, Entertainers in Nevada are exempt.       

Family Farm corporations/ Family enterprises—often listed as optional or elective but coverage may be required for farm hands if a specified number of employees or payroll value is exceeded   

Financial Institutions (Banks)- Banking is exempt from coverage in Manitoba, Ontario, Alberta            

Illegal enterprises or occupations—This is not often specified but may turn on the definition of “illegal”.  Specifically excluded in South Dakota

Independent Contractors-  Often excluded but specific rules may apply for construction; special certification may be requires for exemption as in Montana 

"Less than" exemptions  - Exempt for firms with less than a stated number of employees; 3 in Michigan, 4 in South Carolina, 5 in Missouri. [ NOTE:  Special rules may apply for construction firms]

Maritime workers- Exempt in New Jersey        

Municipal employees – Exempt for firefighters and police cities <500k illinois="" in="" span="">

Newspaper/publication vendors/ distributors—This is a controversial area particularly in Kentucky where a recent law requiring mandatory coverage was overturned             

Non-profit, religious, charitable organizations – This is a common category but there are specific criteria in most jurisdictions     

Outworkers - Exempt if less than 26 hours weekly in  Connecticut.

Owner operators – Truck driver owner operators are exempt in South Carolina.  Exempt in South Dakota if certified as Independent Operators by the Department of Labor.   

Professional sport players / athletes – Exempt in Florida, hockey teams exempt in Rhode Island, Professional sports competitors or athletes are exempt in British Columbia (note, however, managers , coaches, administrators are mandatorily covered).

Real estate agents/licensees/ brokers (commission) and Insurance Agents- licensed- commonly exempted from coverage. 

Sawmill or logging operators - Exempt if  >10 employees who operate less than 60 days over a 6 month period in North Carolina

Self-employed/ Independent Contractor - Very common exclusion but often with optional or voluntary inclusions offered.

Sole proprietorship or partnership (Sole trader in Australia)  - Exempt in most places but in Tennessee, in construction, sole proprietors and partners are required to cover themselves or be listed on the State Exemption Registry

State / provincial employees    - Voluntary for state and political subdivisions in Tennessee, exempt for elected or appointed officials in South Carolina

Teachers – Most teachers in Alberta and Saskatchewan are exempt.    

Volunteer first responders, law enforcement, patrol members or rescue workers  -specifically covered in Minnesota but certain groups like ski patrol persons exempt in North Carolina. 

There are also groups of individuals that may be excluded from some or all coverage under workers’ compensation.  Undocumented workers have been denied coverage for vocational rehabilitation, for example, because of their illegal immigration status  (Ortiz v. Cement Prod., Inc., 708 N.W.2d 610 (Neb. 2005)).  Workers in concurrent employment may have limited coverage (see http://workerscompperspectives.blogspot.ca/2015/06/will-workers-compensation-cover-income.html and "Moonlighters Wanted", Perspectives Magazine, IAIABC, November 2016 ).

Beyond the problems for workers and employers associated with the lack of coverage for certain industries and occupations, the absence of concise, comparative numeric data leaves policy makers to make important decisions on shaky assumptions.  Finding an accurate answer to the question "What percentage of the employed labour force covered by workers' compensation?"  should not depend entirely on indirect calculations.  "Employment" and "employed labour force" are frequently sampled and reported, so choosing a recognized denominator should be straightforward.  In states like New Mexico or Oregon with direct worker premiums or per capita payroll charges for workers' compensation, calculating the numerator should be trivial.  Unfortunately most jurisdictions only collect payroll not employment data so no direct numerator data is available to them.  

In the interests of good public policy and transparency, jurisdictional reporting of the percentage of the employed labour force covered and not covered by workers' compensation should be improved and standardized.  At a minimum, each jurisdiction should be report the number and percentage of employed labour force covered, the number of firms and associated workers covered by "opt in" or voluntary coverage provisions, and the number of firms and associated workers exempted or excluded by waiver or other application process.  

Saturday, March 4, 2017

Are Waiting Periods for TTD compensation universal in workers’ compensation?

Despite having addressed waiting and retroactive periods before, I continue to receive questions about the law and policy surrounding them.  The questions usually contain assumptions that waiting and retroactive periods are universal features of workers' compensation systems and their design is uniform.  Neither assumption is true.  Understanding the variation in waiting and retroactive periods is critical to interjurisdictional comparison, policy analysis and financial risk planning for employers and workers. It is also essential in any comparative exercise on the costs and benefits of workers' compensation systems.  

Waiting periods are not a universal feature of workers’ compensation for temporary total disability (TTD).  While common in US states, waiting periods for TTD compensation are absent from most Canadian workers’ comp and  Australian “WorkCover” jurisdictions.   Where waiting periods are part of the workers’ compensation legislation, they are far from uniform in design. 

A waiting period for TTD workers’ compensation is a specified time frame following a work-related injury for which TTD compensation is not payable.  A few jurisdictions provide exceptions to the waiting period rule in the case of hospitalization (California, Idaho for example) or for certain professions (firefighters in Maine and New Brunswick). 

Closely aligned with waiting periods are retroactive periods.  If there is a waiting period, legislation usually contains a retroactive provision allowing for TTD compensation to be extended to the waiting period if the duration of disability extends beyond a specified period (7 days in Delaware, 6 weeks in Louisiana, for example) .  Some jurisdictions (Rhode Island and Hawaii, for example) have no retroactive period regardless of the duration of TTD. Where there is no retroactive period or where the duration of disability is less than the retroactive period, the injured worker receives no TTD compensation to offset the lost wages.

An uncompensated waiting period is a worker-paid “deductible”.  From the perspective of the worker, the full value of earnings lost during the waiting period represents a financial cost to the worker in addition to the human cost associated with work-related injury.  A waiting period that is waived or paid retroactively  reduces the financial burden of lost earnings but does not make the workers “whole” with respect to lost earnings.  Earning replacement rates and maximum insurable earnings or maximum benefit payments still apply and virtually guarantee that a portion of lost earnings are never recovered through workers’ compensation insurance. 

There is no universal standard for what constitutes an equitable waiting period.  The 1972 report of the National Commission on State Workmen’s Compensation Laws headed by John F Burton, Jr., noted the pressures for reducing and maintaining waiting periods:

The advantage of reducing both the waiting and the qualifying period [for retroactive benefits] is that workers will have a higher proportion of their lost remuneration replaced by benefits. At the same time, the cost of the program increases, both in benefits paid and in administrative expenses. Proponents of the waiting period argue also that a waiting period is necessary to discourage malingering. (Chapter 3 page 59)

The National Commission’s mandate required an evaluation of various aspects of permanent and temporary compensation under state workers’ compensation laws with respect to adequacy and equity.  Its recommendation regarding waiting and retroactive periods provides guidance to policy makers in the US and beyond.  The National Commission summarized its recommendation this way: 

We recommend that the waiting period for benefits be no more than three days and that a period of no more than 14 days be required to qualify for retroactive benefits for days lost.(Ibid.)
The National Commission’s recommendation defines a reasonable “minimum standard”  or threshold  against which policy makers and stakeholders may examine workers’ compensation waiting and retroactive periods.  Using this “no more than” standard, each workers’ compensation jurisdiction may be assigned to one of  three distinct categories of compliance with National Commission’s  recommendation:   Exceeds, Meets, and Fails to meet the minimum recommended by the National Commission.

In February 2017, I retrieved statutes and/or policy documents regarding waiting and retroactive periods for all North American jurisdictions.  I then categorized each according to its compliance with  the National Commission recommendation. [As an aside, most statutes contain no reference to a “waiting period”.  The provisions that give rise to waiting periods are often framed as prohibitions against payment for losses in the initial days following injury or prescribed timeframes for the “commencement” of temporary total disability compensation payments.]   The preliminary results of my analysis are as follows:

  • Exceeds Minimum recommendation:
    • No waiting period or
    • Waiting period of three days and/or retroactive period of less than 14 days or
    • Waiting period less than three days and retroactive period of 14 days or less
      • Wyoming, Wisconsin, West Virginia, Minnesota, Vermont, Connecticut, Delaware, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Prince Edward Island, Newfoundland & Labrador, Northwest Territories, Nunavut, Yukon

  • Meets Minimum: 
    • Waiting period of 3 days and retroactive period of 14 days
      • Washington, Oregon, Utah, Colorado, Iowa, Montana, Illinois, Kentucky, District of Columbia, Maryland,  New Hampshire

  • Fails to meet recommendation: 
    • Waiting period of more than 3 days or
    • Waiting period of any length and no retroactive period or
    • Waiting period of any length and retroactive period of greater than 14 days
      • California, Nevada, Idaho, Montana, Arizona, New Mexico, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Arkansas, Texas,  Louisiana, Mississippi, Alabama, Georgia, Florida, Tennessee, North Carolina, South Carolina, Virginia, Indiana, Ohio, Pennsylvania, Indiana, Ohio, Michigan, New Jersey, New York, Rhode Island, Massachusetts, Maine, New Brunswick, Nova Scotia

More than half of the North American workers’ compensation systems examined in this analysis fail to meet the minimum waiting period and retroactive period recommendation of the National Commission. 

This wide disparity across systems creates inequalities in the financial burden for workers.  It also complicates comparisons of employer costs for workers’ compensation.   Rate comparisons rarely take into account the financial impact of the variation due to system features such as waiting and retroactive periods.  Clearly, the value provided by  workers’ compensation coverage  with no waiting periods (or a short waiting and retroactive periods) should be taken into account when comparing rates and costs to jurisdictions with lengthy waiting periods (and particularly if they  have lengthy or absent retroactive periods).   That said, I can find no published figures or estimates of the uncompensated wage loss due to waiting periods in any state with a waiting period.  There are estimates of the value of “employer deductibles” but worker deductibles in either dollar amounts or uncompensated time (days or weeks) are not reported.

The laws and policies around the commencement of TTD compensation impact every workers' compensation time-loss claim.  More than any other comparative feature, the policies regarding waiting periods and retroactive periods influence the balance of who bears the cost of the most common workplace injuries.  Workers bear the physical and financial costs of those injuries; the portion uncompensated by workers' compensation systems can vary widely with devastating consequences on families and the potential externalization of costs to other insurers, workers, and the community at large.  These externalizations obscure the full cost of work-related injuries--and amount to a subsidy to the cost of production that removes or dilutes incentives toward prevention of injury and disability.  

Where waiting periods have been eliminated, the uncompensated portion of lost earnings is reduced and may be inferred by the reported value of compensation for TTD paid.  Where waiting periods exist, the uncompensated portion of lost earnings will be significantly higher than for otherwise similar injuries and system features. Quantifying the impact may influence safety and outcomes for millions of workers.  

Thursday, January 12, 2017

What emerging issues in workers’ compensation and OH&S are on your watch list?

I’m often asked about emerging issues in workers’ compensation and occupational health and safety.  Each perspective in this field may see a different issue or trend as important.   There are, however, some overarching issues that will have significant implications for legislators, advocates, and practitioners as well as workers and employers.  In no particular order, here are some of those issues my watch list.

For Administrators and Legislators (and workers, too!):  The "Gig" economy cometh! 
Drive for Uber,  develop an app, open a YouTube Channel… the list of “gig” jobs has moved far beyond the context of one-time or short-term jobs that musicians, artists, and performers (and conference speakers) found employment.  Tech specialists, construction workers, delivery drivers, and many jobs we used to think of as regular full or part-time employment are being deconstructed and recast as "gigs"-- task oriented, contingent, and demand-driven.  What used to be considered “moonlighting” jobs or other forms of concurrent employment are now part of this growing gig economy. 

From many regulatory viewpoints, gig workers are considered freelancers or contractors rather than employees. Uber, for example, considers itself a technology company rather than a transportation firm; the drivers it connects customers with are not employees but rather independent contractors.  The term “Uberization”  [or “uberisation”] now appears in daily newspapers, business magazines and academic journals [see examples: Carney, Brian M., “Let’s Uberize the Entire Economy”, Forbes (on line), Oct. 27, 2014 and  Davis, Gerald F “WhatMight Replace the Modern Corporation? Uberization and the Web Page Enterprise,”Seattle University Law Review, Vol.39: 501-514] .

After decades of decline in concurrent employment, multiple job-holding is on the rise—and not just among younger workers.  About 6% of the employed labour force now holds multiple jobs with prevalence in the under 25 groups, women, and specific occupations (firefighters, school teachers) reaching nearly 30%.  “Side gigs” are becoming common in many families.  The consequence of a work injury in one job may means a loss of earnings from all income-producing activities. The physical and mental costs of the work-related injury may be the same but compensation for the financial loss coverage may fall partly or completely outside the workers' compensation coverage.

How should gig workers be covered from a workers’ compensation perspective… or should their employment be excluded from coverage?  What about their loss of earnings from gig employment in the event of a “workers’ comp covered” work injury?  Are gig workers covered by occupational health and safety regulations?  Who tracks injuries, fatalities and near misses to gig-economy workers or do we simply ignore what is happening in this growing segment of the economy?

These are tough questions for policy makers.  Individuals who take on “gigs” may not fully realize the restrictions many jurisdictions place on concurrent employment in deciding coverage under workers’ compensation rules. Is enough being done to adequately inform and educate potential and current gig workers about the financial and safety risks?  Do we have the data to even calculate the risk for gig workers? [Risk is a multifactor assessment that includes intrinsic issues such as hours of work/rest/sleep (fatigue) and extrinsic issues (road/traffic conditions, equipment conditions)]

Do current employment surveys adequately capture gig-economy employment?  Will gig economy jobs become ghettos of unsafe or higher risk work?  To what extent, if any, does concurrent work in the gig economy erode (or enhance?) the health and safety of its participants (and others in the workplace)?  Do uberized organizations have any responsibilities for the health, safety or workers’ compensation of the “agents” or “contractors” they engage? 

For Vocational Rehabilitation and Disability Management Professionals:  Disruptive technologies are changing Return-to-work options

Uber may be the poster child for the gig economy but it is also the consequence of a disruptive technology.  The technologies behind what we think of as the mobile internet coupled with the growing connectedness of everything (including what is often termed the “internet of things”) changes everything. These technologies together are transforming what people do and just as importantly what people will be doing less of in the future.  Consider the following:

·         Autonomous (driverless) vehicles are going to further disrupt the ride-for-hire sector. 
·         Transport (long haul, pin to pin, land train) driving occupations will decline rapidly.
·         Robots and drones are eliminating many positions in the supply chain including home delivery.
·         Bricks and mortar convenience stores that require no retail sales staff now exist.  

New technology changes and replaces occupations in more than transportation and retail.  Fewer production workers are needed as robotics take on increasingly complex roles in manufacturing at an hourly cost equivalent of between $4 and $8 per hour (see BCG,  “Takeoff in Robotics Will Power the Next Productivity Surge in Manufacturing” February 10, 2015).

Even experts in highly technical fields are in peril of being replaced by “artificial intelligence”.   IBM’s Watson not only beat out humans on Jeopardy; Watson now powers weather forecasts and diagnosis medical conditions.  “Watson is now incorporated into about 17 different industries and IBM is working with more than 500 partners to build Watson cognitive applications, including retail, law, music, image recognition, the hotel business, and even cooking.” [Young, Lauren J., “What Has IBM Watson Been Up to Since Winning 'Jeopardy!' 5 Years Ago?” Inverse.com, April 5, 2016]

All these changes mean workers seeking a return to work following an injury are going to have fewer RTW options.  But for the injury, many workers would have been able to continue or at least compete for the shrinking jobs in a sector being disrupted by technology.  The RTW challenges will be similar to those experienced in “sunset” industries but there are other issues. If previously placed workers with accommodated impairments are displaced by new technologies, what are the employer responsibilities to further accommodate or the workers’ compensation system to further compensate? 

Disruptive technologies may increase opportunities for highly specialized and trained individuals and perhaps some lower skilled occupations stripped of complexity but too expensive to automate.  This hollowing out of the mid-range jobs will increase the return to work challenge. 

Mandatory reinstatement laws are likely to become meaningless if the sector is declining because of new technologies.   Making reinstatement to a higher paid position is already a tough sell.  As more and more workers with residual disabilities occupy positions at their highest capability at a work equal to or lower than their at-injury positions, each subsequent placement will become a greater hardship.  In industries feeling the impact of disruptive technologies, the undue hardship threshold will be reached sooner than later.  What happens then?  What happens to the accommodated workers as their jobs are displaced?  Should the residual permanent disability increase caused by the changing environment trigger a re-assessment and further services? Ought gig-economy jobs be considered “suitable and available” work alternatives when assessing loss of earning potential related to work injuries?  Disability management and vocational rehabilitation professionals may need new policy tools to prevent disability and be effective in this environment.  There are cost implications for employers and workers to action as well as inaction on these questions.  

Reputation managers and administrators:  Social Network and News Nightmares (information everywhere, but…)

Try this little experiment.  Select a topic you in which you have absolutely no interest.  Perhaps Big Foot sightings , UFO news, or the “debate” over global warming.  Use your smartphone to search a couple of websites or your news app to track a few stories.   No big deal, right?  Within a few days, you may notice your news feed or social media begins feeding you news based on this new “interest”. 

Why is this a problem?  Social media and many news search services will use your past searches to send you stories that have the effect of not only reinforcing your views but reinforcing any view that coincides with even a passing interest.  If you start searching stories on how poor workers’ compensation systems are, you will begin receiving more and more stories that reinforce this view.

The reputation of a workers’ compensation system is damaged by a thousand negative stories shared just once or twice; it is just as vulnerable to a single negative story shared a thousand times.  The self-reinforcing nature of current social networks and news services are making this scenario more common.  Even if the original story is speculative, inaccurate, one-sided or plainly “fake news”, it undermines reputation of the workers’ compensation system.[Example and background, see  Feldman, Lauren;  Teresa A. Myers, Jay D. Hmielowski, and Anthony Leiserowitz   “The Mutual Reinforcement of Media Selectivity and Effects: Testing the Reinforcing Spirals Framework in the Context of Global Warming”  Journal of Communication Vol 64: 590–611].

Why is this so important?  Public confidence in the workers’ compensation and occupational safety and health systems are critical to their mandate.  Eroded reputation based on spurious accounts of wrongdoing discredit important information on safety, health, and rights to compensation leading to under-reporting of hazards, suppression of work-injuries, and increased barriers to entitlements.   

More critically, the resulting loss of information regarding workplace injury and its costs may lead to inaccurate risk assessment and underinvestment in prevention.   This raises the potential of harm to workers and other persons in the workplace.

To be clear, reputation is not just a public or worker matter nor is it only a concern for state funds, provincial workers’ compensation boards, or OH&S inspectorates.  All players in the system need to be concerned about their own reputations and that of the overall workers’ compensation system in their jurisdiction and beyond.  Employer or provider complaints can be just as damaging.  As we have seen in other domains, if you can’t rapidly resolve complaints, counter misinformation with fact, and demonstrate performance with authority (research, external reviews) then the reputational impact will be severe.  Not only will detractors be energize but supporters will fall silent and the ambivalent may shift support to any alternative even if it is unproven.

Current privacy and political restrictions often restrict responses to criticism.  A workers' compensation insurer may be unable to respond about a particular case because of privacy laws meant to protect the worker and his or her family.  State funds may be precluded from advertizing prior to an election or even informing a debate on performance with new data.

Protecting and improving system reputation is becoming more difficult. Poorly operating systems are going to have poor reputations—they earn and deserve that; however, even systems that objectively rank among the highest for customer service, public contribution, value and timeliness will find reputation management an increasingly difficult challenge.  Averting erosion of hard-earned social capital means workers’ compensation systems must actively provide evidence of excellent of performance, demonstrate transparency, and actively respond to fake news and inaccurate reporting.    
For the inspectorates, prevention specialists and regulators:  Demographics!

Look around at your labour force.  What you undoubtedly will see is a labour force that looks a lot different than it did a decade or so ago.  In most cases, you will see older workers and greater diversity than you did just a few years ago.  Tasks that were designed for the safety and health of twenty year olds may put older workers at risk.  Job tasks including safety parameters for repetitions, weight limits and durations may not take into account the variability of age and gender represented by today’s workforce. 

The Center for Retirement Research at Boston College recently created a “Vulnerability Index” ranking nearly 1000 jobs for their susceptibility to age-related decline in skills.  The ranking lists jobs from least vulnerable (good news for compensation and benefit managers, teachers, and law clerks) to most vulnerable (bad news for roofers, fallers and plasterers).   [See Vulnerability Index April 2016].  Note that the restrictions, comorbidities and physical changes that contribute to increased vulnerability are very similar to the permanent impairments arising from work-related injuries.                
The consequences of demographic change extend beyond the growing numbers of older workers.  Falling birthrates mean lower numbers of younger workers, more immigrants, and more temporary foreign workers.  These shifts introduce different perspectives and knowledge based to the workplace.  They can create cultural and intergenerational tensions that can lead to greater risk taking or pressure to hide or self suppress risk or injury reporting.

In Canada, the US and Australia, older workers are among the fastest growing segment of the labour force.  Working longer may actually be good for health and wellbeing for many individuals but there are different risks, increased susceptibilities and the impact of prolonged exposure to take into account.  And that’s the problem.  Few organizations are taking the demographics of their workforce into account.  On a case by case basis, there may be procedures or tactics to address individual cases.   What is lacking is an overall strategic approach to track and project demographic factors and consequences.  Changing demographics require new strategies as well as appropriate safeguards, polices and assessments to prevent injuries and exposures. 

Another for us to think about:  Big Data, Predictive analytics and Occupational injury, illness and disease 

Workers’ compensation systems evolved from physical, traumatic injury insurance models.  Single events lead to immediate, observable physical harm.  That was too simplistic and lead to a broadening of coverage to include occupational illness and diseases that lacked the elements of a single event and a clearly observable injury.  Lead poisoning, asbestos diseases and black lung disease were recognized over time as occupationally related and eventually included in most workers’ compensation schemes.  These examples are based on exposures with typically long latency periods before disability. 

There is a growing recognition of mental injuries as a consequence of work exposures.  Some harms involve multiple exposures and may lack a culminating traumatic event that clearly establishes work-relatedness.   Post-Traumatic Stress Disorder (PTSD) may be the highest profile example.  The mental health impact of toxic work environments, bullying, over-work, excessive overtime and other “exposures” are increasingly acknowledged as work-related. 

What is still missing are the policy and legislative mechanisms to allow for effective adjudication and rapid treatment of these cases.  Also missing are the widespread prevention initiatives to build resilience and reduce hazards that can cause mental injury, illness and disease.

The era of “big data” is also revealing more links between work and disease.  The associations may not reveal causation at and individual case level, but they provide intriguing insights into the incidence and prevalence of occupational illnesses.  Big data and predictive analytics are already being used to highlight previously unidentified risks in manufacturing and processing  [for example, see the post by Griffin Schultz, "The Era of Big Data Analytics in Safety", SafetyMatters, Associated General Contractors of America,  November 2013].  

What’s coming as a result of the advanced analysis and the aggregation of data is more accurate risk identification, improved protective techniques and additional confirmations of work-caused illness and disease--(or associations warranting application of the precautionary principle). The exposures that will be shown by big data analytics to be associated (and perhaps later proven to be of causative significance) have already happened and are continuing to happen. Think of the lives that can be saved and years of disability avoided if we use this new intelligence and act now.

For public policy leaders: Pressure for changed systems (nationalization, dissolution of state funds, competition, opting out)

The pressure for change in the political realm has recently resulted in sudden changes in political leadership and direction in many jurisdictions. Minority positions can change the course of public policy. The challenge for policymakers is to learn from recent examples and apply the lessons learned. Ignoring minority complaints is not an option.

In workers’ compensation and occupational health and safety terms, the pressures for change come from many stakeholders. Workers, advocates, providers, employers, and insurers all have their own views. Ignoring or minimizing these perspectives may alienate current supporters and coalesce opposition to the status quo. “Opting out” of workers’ compensation was once dismissed yet there is a growing movement with some traction that has already changed how Oklahoma will approach workers’ compensation going forward. Pressure to dismantle at least some of the few remaining exclusive state funds in the US has not diminished and there are those who suggest a national scheme might be preferable [See example, DOL, “Does the Workers’ Compensation System Fulfill its Obligations to Injured Workers?”, October 2016] . Canadian workers’ compensation systems have also seen pressure to open their exclusive provincial systems to competition.

Opposition to the status quo should not be ignored as uniformed or dismissed because it is small. Demands for change may well be rooted in legitimate, long-standing and valid criticisms. Engagement will not always result in conversion from opposition to support but it can be cathartic and help crystalize the policy or practice issues that need attention. Respect, transparency, and a sense of urgency are essential to engagement.

Let me be clear, there are excellent performing exclusive state funds, competitive state funds, jurisdictions with public workers' compensation and private delivery/administration, national systems and state systems.  No one model has a right to title of "best" in delivering workers' compensation.    Without data and objective research on performance and outcomes, however, there can be no informed discourse, comparative analysis or considered changes to laws, policies or delivery structures  Public policy requires public support. Without authoritative, objective, timely research and data to support performance (including outcomes), public support of any workers’ compensation model will evaporate. Informed, objective research may be expensive and hard to do but it is essential to assessing the effectiveness of workers' compensation systems. [See ISCRR, IWH, WCRI, CWCI for examples of the kind of research that matters and makes a difference].

Tuesday, November 8, 2016

What are the Workers' Comp/OHS implications of Temporary Foreign Workers?

The demographics of the Canada, the US and Australia are changing.  Falling birth rates, increasing longevity, and shifts in participation rates have consequences for the composition of the labour force.  One demographic effect is the importance of temporary foreign workers who are increasingly filling demand at all skill levels in the economy—a fact that has implications for occupational health and safety (OH&S) and workers’ compensation on both the policy and practice fronts.

The need for temporary foreign workers (TFWs) is often lost in the political rhetoric about undocumented workers and economic migrants.  Changing demographics of the labour force may create skill or personnel shortages in specific sectors or occupations.  When a country has insufficient personnel willing, trained and able to fulfill position necessary to the economy, foreign nationals may be invited or encouraged to fill vacancies.  In some cases, this may be a prelude to a formal application to immigrate; more often than not, however, the legal work authorization is restricted to a specified employer, designated occupation and for a specified time frame.  Seasonal agricultural workers, for example, may be permitted legal authority to work for a specific farmer through the farming cycle (mid-February to October in Canada); work beyond the specified time, for non-specified employers or in roles unrelated to farm duties (childcare, for example) are not permitted.

International students typically are granted authority to work either in their discipline as part of their training or as a means of supporting their continuing education.  “Working holidays” are also encouraged by many governments, as a labour source, a means of encouraging eventual migration, and as part of reciprocal agreements that provide similar opportunities for a country’s own citizens.
How many documented temporary foreign workers are there?  Comparative data are hard to find. OECD published material (OECD, International Migration Outlook 2014) provides the following temporary migration data:




The rising use of legally authorized temporary foreign workers is evidence of the need for them to fill skilled positions in the economy. In Australia, (Subclass 457 quarterly report quarter ending at 30 June 2016) more than 85% of visas were issued to professionals, technicians, skilled trade workers, and managers.  Local labour market shortages for lower level positions such as cooks, developer programmers and cafĂ© or restaurant managers for most of the remaining visa authorizations granted. 

Canada has two main streams to consider: 
·         International Mobility Program International Mobility Program (By exempting some foreign nationals from needing a Labour Market Impact Assessment before being able to work in Canada, the IMP aims to provide competitive advantages to Canada and reciprocal benefits to Canadians)  and
·         Temporary Foreign Worker Program (requires Labour Market Impact Assessment)

Looking at the number of individuals with valid work permits at year end in these two categories demonstrates the rising presence of authorized temporary foreign workers in workplaces across the nation.  [Note:  in most cases, any accompanying family members of authorized temporary foreign workers are also granted permission to work].

It is true that not all temporary foreign workers will have formal work authorizations.  Where demand is high for a particular occupation, workers without appropriate status may be enticed to take on jobs.  The enticement of (relatively) higher wages and (relatively) safer or better working conditions than available in their home country may fuel the supply of would-be temporary migrants or permanent immigrants.

Comparative data on undocumented workers is even more difficult to obtain for most countries.  In the US, there are 8.1 million undocumented workers; about half work in agriculture [Jeffrey s. Passel and D’Vera Cohn,  Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession, Pew Research Institute, November 3, 2016].  That represents about 5% of the US labor force.  Even the supply of undocumented foreign workers is changing.  In the case of the US and Mexico, improving economic conditions in Mexico has contributed to a decline in the flow of undocumented workers.  [Note: undocumented workers may be characterized as “illegal immigrants” but this may incorrectly imply intent to settle rather than return to their home country].

The significant size of the temporary foreign workers (documented or otherwise) component of the labour force has implications for policy and practice in OH&S and workers’ compensation.  These workers are technically subject to the same occupational safety standards and usually have legislative eligibility for workers’ compensation laws as nationals in the employed labour force.  These protections and entitlements are not always clear to the temporary foreign worker or employer.  

Language and cultural barriers may isolate a temporary foreign worker from resources or contacts to facilitate their understanding of and access to the appropriate OH&S and workers’ compensation authorities.  Fear or anxiety regarding immigration status may pose a further barrier to accessing the protections and compensation entitlements.

For documented temporary foreign workers in larger organizations, safety and human resource management systems are likely to overcome some of the barriers.  In general, temporary foreign workers who are documented, educated, fluent, working in larger organizations and originating from countries with strong OH&S policies and robust social insurance that covers work injuries are less vulnerable than other temporary foreign workers. 

For inspectorates in the field and other OH&S professionals, the usual challenges may be complicated by similar barriers. Undocumented workers in particular may fear that reporting a hazard or refusing unsafe work may result in a referral to immigration authorities.  Worker reports and responses to questions are important inspection inputs and prevention factors; understanding and overcoming reticence among TFWs and undocumented workers is essential to identifying hazards, controlling risks and correcting errors that can cause injury, death or disease to workers and others in the workplace.

Adjudicative staff in workers’ compensation programs may experience TFW reluctance to disclose causation because of fear regarding return employment/recall rights for injured TFW in seasonal agricultural worker or guest worker programs in the hospitality industry.  Undocumented workers may not wish to pursue entitlements for fear that reporting by the workers’ compensation agency to immigration or other authorities.  Even if the worker makes a successful workers’ compensation claim, questions about ongoing treatment, rehabilitation, and employability in the TFW’s home country will arise.  What wage rate should be used?  What alternative occupations for loss of earnings determinations should be considered for an undocumented worker who must return to his or her home country following an injury? 

Active claim and hazard/injury reporting suppression may also occur.  There may be misperceptions regarding the responsibilities of employers.  For example, many contracts require TFWs who are unable to work to return to their home country; an employer may legally cease to supply room and board to a worker unable to work thus making return home the only economic alternative for the worker. This may limit diagnosis, treatment and rehabilitation options as well as discourage an injured TFW from filing a  workers’ compensation claim.

For policy makers, there are important questions that may cut across jurisdictional lines.  These include:
  • ·         How can we ensure TFWs are adequately informed of their protections and entitlements under the law?
  • ·         Do TFWs need different approaches to provide equivalent protections and compensation?
  • ·         How can cultural, social and language barriers that inhibit access be minimized?
  • ·         If the worker must return to his or her home country, what standards of treatment, fee schedules, reporting procedures and monitoring should be applied?
  • ·         Can a “mandatory reinstatement” provision be enforced if a worker has no legal rights to remain in or return to the country of injury after recovery?
  • ·         Should there be provisions to assist injured TFWs to continue to stay in the country while receiving treatment for work-related injuries. 
  • ·         How should TFW exposures to occupational toxins and other agents of occupational disease be tracked?  What provisions should there be for occupational disease claims once the TFW leaves the country?

Beyond the TFWs, students and “working holiday” participants noted here, there are other categories of non-citizen workers in the economy.  Refugees are an obvious group who may seek temporary protection due to persecution, genocide, insurrection, or war.  The compassionate act of providing refuge is meaningless without providing a means of support such as authorization to work.  Even if refugees intend to return to their home countries when conditions allow, the OH&S and workers’ compensation issues overlap with the TFW issues noted here. 

The data suggest documented and undocumented TFWs are likely to be present in the economy in substantial numbers for years to come.  Without coherent, specific policies and sensitive, responsive practices workers’ comp and OH&S jurisdictions, at least some TFWs may be disproportionately at risk or exploited.  Incident and injury under-reporting or suppression may obscure serious risks and deficiencies.  Not only is this unfair to TFWs and their families, it may also put citizen workers and others in the workplace at risk

At a minimum, the presence and extent of TFWs in the economy deserves closer attention and research. I could find no specific published studies on the incidence rate of injury or workers’ compensation claim rate among temporary foreign workers.  (Do TFWs have similar injury rates to citizen workers?)    Improved statistics, tracking and reporting are important but the special needs of this segment of the labour force need to be addressed is such a way as to counter fears and overcome the inherent challenges of a temporary foreign resident who suffers work injury or disease.

Monday, October 24, 2016

What do changing demographics mean for workplace health and safety?

If you knew your workforce was going to experience changing risks, increased exposure, longer recoveries from injury and greater effects associated with co-morbidities, you would act!  The fact is, our workforce is changing and few organizations are even aware of the change let alone the consequences.   

[This post contains slides and content arising from my presentation to the Occupational and Environmental Medicine Association of Canada (OEMAC) Scientific Conference  September 2016].

The aging population is not just a North American problem.  The median age of the population in most industrialized countries is projected to rise dramatically.  I adapted the following Pew Institute graphic to include Canada and Australia but its message is clear:  over the next few decades, the median population age of many of the most important economies in the world is going to rise. 

For Canada, the US and Australia, this shift to an older population will not be limited to the median age.  Populations of older people are growing while birth rates are low or falling and immigration levels stagnant.  Because demographics drives the demand for goods and services and provides the supply of workers, changing demographic patterns are altering the character and needs of the population, the labour force, the economy and more.   

Demographic change drives both the supply of potential workers and demand for goods and services.   The Canadian population, for example, is growing at about 1% per year overall.  The working age population (18-64) is growing at about the same rate but the oldest and youngest segments of the population have very different profiles.  In the last decade, the population over the age of 65 has risen by more than a third and is nearly 50% larger than it was in 2001.  On the other hand, the population ages 0 to 17 years of age has actually declined over the same time frame. 

Canada’s population projections all point to a continuing trend toward an older population.   The Canadian population will rise by a little more than 5 million in the next thirty years but the increase in the population over age 65 will account for nearly 90% of that growth. 

Already we are seeing skill shortages in several sectors and regions related to this demographic change.  I mentioned the population over the age of 65 has risen by about 50% since 2001 but the numbers continuing to work full time have risen by 350% over the same time.  Part-time work for those over age 65 has also risen by about the same percentage.  Full and part-time work for those over 70 has also risen by more than 250%. 

This trend is also evident in Australia:
"The majority of Australians intend to retire between 65-69 years, but the results show that now over a quarter of males 45 years and over plan to work past 70 years.”  [Australian Bureau of Statistics, Australians intend to work longer than ever before, Media Release 40/216, 29 March 2016]

The trend toward more workers being engaged in full time work beyond age 65 is particularly evident in the US data.  I recently extended published US data to capture more recent developments that show full time employment dominates among those working beyond age 65.

We are not only seeing an increasing number of older workers in the economy, but the distribution of even the category of older workers in some industries is trending toward the upper age limits of recorded data.  For example,  I used Canadian Institute for Health Information CIHI data on registered nurses and nurse practitioners (RNs and NPs) as  an example and found that the distribution of those aged 70 and older has double in the last decade. 

By about 2030 under most projections, the category of persons aged 80 and older will outnumber any other 5 year age group in our population.  This has implications for the demand on care services, healthcare, housing, transportation and many other aspects.  One example of this trend is the dramatic rise in Licensed Practical Nurses (LPNs), a profession highly associated with care for the elderly and disabled.  In the last decade, the number of LPNs has risen with the older population while the supply of RNs and NPs has tracked closer to the growth rate of the population aged 18 to 64. 

Of course, people who decide to go into nursing or healthcare of any sort are needed but that also means they are unavailable to become electricians, truck drivers, educators, researchers, programmers and construction workers—occupations that are also necessary to the growth and maintenance of our economy.  The problem of limited supply of youth and a falling birth rate means these roles are going to have to be filled by others.  We are already seeing a dramatic rise in the working population over age 65 but this, too, has its implications. 

Working longer means greater exposure to hazards, greater risk of injury and complications due to comorbidities and conditions related to normal ageing.  How prepared are employers and safety professionals to address these changes? Are workers adequately aware of the risks?  Are safety professionals and employers aware of changing risk profiles of older workers?  Are there appropriate ergonomic tables to provide guidance on strength and repletion limits for older workers?  Do workers’ compensation laws adequately address work careers that may extend into their seventies, eighties and beyond?  Are health and safety systems capable of addressing risks associated with older age groups not previously prevalent in your workplace?

There is a lot of evidence that work is good for your health and wellbeing.  That applies to older individuals where work can provide income security, mental stimulation, exercise, socialization, and opportunities to “give back” or do something meaningful and productive with one’s time.  Moreover, many workers approaching retirement age today have skills, knowledge and experience that are just not available in the labour market.  These factors and the demographic changes noted above mean we are seeing more older workers in the workplace—a trend that will continue for more than another decade. 

It is not too late to act.  Understanding the changes is the first step… and perhaps a self-serving one:  chances are, if you are working today, you will be working to an older age than your parents or grandparents.