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?”, 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].

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