class 12 - the law of workplace safety and workers' compensation

Question 1

The Occupational Safety and Health Act

Answer 1

In 1970, Congress passed the Occupational Safety and Health Act (the OSH Act), a comprehensive law designed to reduce workplace hazards and improve health and safety programs for workers. (29 U.S.C. §§ 651 to 678.) It broadly requires employers to provide a workplace free of physical dangers and to meet specific health and safety standards. Employers must also provide safety training to employees, inform them about hazardous chemicals, notify government administrators about serious workplace accidents, and keep detailed safety record

Question 2

OSHA Covered Employers

Answer 2

Virtually all businesses must comply with the OSH Act, with a few exceptions. The OSH Act won’t apply to your workplace if any of the following are true:
- You’re self-employed and have no employees.
- Your business is a farm that employs only your immediate family members.
- You’re in a business such as mining, which is already regulated by other federal safety laws

Question 3

Safety Standards - OSH Act

Answer 3

The OSH Act sets a general standard for all covered businesses. As an employer, you must provide a place of employment that’s free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. Recognized hazards are not clearly defined, which can make it difficult for you to know how to comply with the law. The broad language covers an almost impossibly large range of potential harm, from sharp objects that might cause cuts to radiation exposure.
But there’s more. In the OSH Act, Congress created the Occupational Safety and Health Administration—called OSHA—as a unit of the U.S. Department of Labor.

The specific standards cover a wide range of workplace concerns, including:
- exposure to hazardous chemicals
- first aid and medical treatment
- noise levels
- protective gear, such as goggles,
- respirators, gloves, work shoes, and
- ear protectors
- fire protection
- worker training, and
- workplace temperatures and
- ventilation

Question 4

Posting, Reporting and Record Keeping

Answer 4

• You must notify OSHA within eight hours after learning that an employee has died from a job-related accident, and within 24 hours after learning that an employee has experienced an eye loss, amputation, or hospitalization because of a workplace accident.
• Contact the nearest OSHA office to report the location and time of the incident, the number of fatalities or hospitalized employees, the name and phone number of a contact person, and a brief description of the incident. Expect a follow-up investigation.
• Unless your business is exempt from OSHA record-keeping requirements (see “Exemption From Record Keeping,” below), you must maintain several types of records including:
  – Injury and illness log. You must keep a log (OSHA Form 300) of all workplace injuries and illnesses, except minor injuries requiring only first aid. (For more information, see www.OSHA.gov/recordkeeping.) Each year, you’re required to post the previous year’s log by February 1st and display it through the end of April.
  – Medical records. You must keep up-to-date medical records and records of employee exposure to hazardous substances or harmful physical agents
  – Training records. You must keep records of your safety training sessions and make them available for review by employees.
  – Retention. You must maintain required records for specified periods of time, sometimes as long as 30 years

Question 5

Exemption from record keeping

Answer 5

The OSHA requirements for record keeping apply only to businesses with 10 or more employees, although state OSHA regulations may impose record-keeping requirements on smaller businesses. In addition, certain low-hazard businesses are exempt from record keeping, including:

retail trade (except for businesses selling general merchandise, building materials, and garden supplies)
real estate, insurance, and financial businesses
service businesses (except for hotels and other lodging places, repair facilities, amusement and recreation facilities, and health services)
dental offices
accounting offices, and
software publishers

Question 6

inspections

Answer 6

• OSHA inspectors can inspect your workplace at any time without advance notice or authorization by a court. Based on what they find there, they can issue citations and impose penalties. However, inspectors are unlikely to make random inspections unless you’re in a particularly hazardous business, such as construction. There simply aren’t enough inspectors to go around.
• If you have a workplace with 10 or fewer employees and you’re in an industry that has a low injury rate, you’re exempt from random inspections by federal OSHA officials. State safety and health laws, however, may empower local inspectors to randomly inspect smaller businesses
• Most small businesses are inspected only if one of the following occurs:
  – An employee has complained to OSHA.
  A worker has died from a job-related injury.
  – An employee has been hospitalized because of a workplace condition.
  As explained above, you’re required to report such fatalities and hospitaliza- tions to OSHA

Question 7

worker’s rights

Answer 7

First, workers have a right to complain to OSHA about safety or health conditions without being penalized for doing so. Retaliating against employees who have made such complaints is a violation of OSH Act provisions.

Second, in some situations, workers have a right to refuse to work if they think the workplace is unsafe. The legal test is this: Does the worker have a reasonable and good faith belief that there’s an immediate risk of serious injury or death? If so, the worker can walk off the job and refuse to work until you’ve corrected the problem or you’ve determined, after an investigation, that there’s no imminent danger. While you investigate or correct the problem, you can place the worker temporarily in another job at equal pay. It’s usually unwise to react by demoting or firing the complaining employee; that can be another violation of the OSH Act if the complaint was made in good faith.

Question 8

Hazardous Chemicals

Answer 8

The federal OSHA rules include a section called the Hazard Communication Standard. (29 CFR § 1910.1200.) Many people call this the right-to-know law. Basically, the standard requires you to give information to your employees about the hazardous chemicals they handle
Many states also have right-to-know laws. If your state has no laws or regulations governing private employers, you must still comply with the federal standards.
These informational requirements vary somewhat from state to state. If your business handles any chemicals, be sure to get a copy of your state’s rules. Because most of the state laws are similar to the federal right-to- know rules, this discussion will focus on the federal law. If your state has standards that are more stringent than the federal ones, there are still some unresolved questions about whether you need only comply with the federal standards.

To understand the right-to-know laws—state or federal—you must first become familiar with the Material Safety Data Sheets (MSDSs) supplied by manufacturers of all hazardous chemicals. They contain a wealth of information, including:
- the physical hazards of the chemical, such as flammability and explosiveness
- health hazards (the symptoms of exposure and the medical conditions that can be made worse by exposure)
- how the chemical enters the body and the limits of safe exposure
- whether the chemical is known to cause cancer * how to safely handle the chemical
- recommended protection methods, including protective clothing and equipment, and
- first aid and emergency procedures should a chemical be mishandled

Question 9

worker’s compensation

Answer 9

The workers’ compensation system provides replacement income and medical expenses to employees who suffer work-related injuries or illnesses. Benefits may also extend to the survivors of workers who are killed on the job

Workers’ compensation is a no-fault system.

An injured or ill employee is entitled to receive benefits whether or not the employer provided a safe workplace and whether or not the worker’s own carelessness contributed to the injury or illness. But the employer, too, receives some protection, because the employee is limited to certain types of compensation (partial wage replacement and payment of medical bills).

The employee can’t get paid for pain and suffering or mental anguish. Except in cases where the employer didn’t carry workers’ comp insurance or the employer’s intentional conduct is responsible for the injury, the employee can’t file a private lawsuit.

To cover the cost of workers’ compensation benefits for employees, you’ll usually need to pay for insurance through a state comp fund or private insurance company

Question 10

workers comp coverage requirements

Answer 10

Although each state has its own workers’ compensation statutes, in all states but Texas, if you have employees, you probably need to obtain workers’ compensation coverage. (A few states require coverage only if you have more than a handful of employees.) Your state workers’ compensation bureau can tell you about any legal requirements you have to inform employees of their rights (generally, you need to display a poster and hand out notices to new hires)

State laws vary as to whether sole proprietors, partners, LLC members, directors, and executive officers can or must be covered by workers’ compensa- tion. In some states, a business can choose whether to cover these individuals. If you’re in one of these states and you want this coverage

Worker’s compensation coverage isn’t mandatory for all private employers in every state, but in some states you might have the option of declining workers’ compensation insurance. You may be sued by an employee who claims to have been injured at work but if you had workers’ comp coverage these types of lawsuits would be barred

Question 11

controlling costs of workers comp

Answer 11

Premiums are based on two factors: industry classification and payroll
If your premium is above a certain amount -10K in many states- your actual experience with workers’ compensation claims will affect your premiums. Your rates can go up or down depending on how your claims compare with other businesses in your industry

The number of claims filed by your employees affects your premium more than the dollar value of the claims. If you have a lot of accidents, it’s assumed that you have an unsafe workplace and that the insurance company eventually will have to pay out some large claims

How to keep workers’ compensation costs down:
- Preventing Accidents
Emphasize safety in the workplace, provide proper equipment, safety devices and protective clothing, Training and retraining etc.
- Buying coverage wisely
Seek our a participating plan in which the insurance company pays dividends to its insured employers. It helps to find a solid company with a long history of paying dividends, but dividends are never guaranteed
Consider being put on a retrospective rating plan
Make sure your business and your employees are properly classified
- Following up
Use light-duty or modified work assignments to help workers who have been injured on the job but are allowed back to work on trial basis

Question 12

you’re still liable for intentional injuries

Answer 12

Although workers’ compensation is the employee’s exclusive remedy for most work-related injuries or illnesses, there’s a major exception: injuries or illnesses caused by the intentional actions of the employer. An employee who can prove that your intentional actions caused an injury or illness can take you to court and seek a full range of damages, including damages for pain and suffering as well as economic losses.

Obviously, if you or a supervisor were to physically assault an employee, that would qualify as an intentional action. But courts sometimes treat other workplace events as intentional, too. Suppose, for example, that, to speed up production, you remove the safety devices from a dangerous machine. An employee is injured using the machine, but you continue to require workers to use the machine in its unsafe condition. You’ve probably set yourself up for an intentional injury claim, because you can be pretty certain that additional workers will be injured by that machine

Question 13

Injury and Illness Records OSHA

Answer 13

All employers in California covered by the Cal/OSHA regulations, except those with no more than 10 employees at any one t ime during the year or those in some low-hazard industries as identified in section 14300.2, are required to keep records of injuries, also known as the Form 300, Form 300A and Form 301.

The Cal/OSHA record keeping system has four steps:
1. Prepare a supplementary record (Injury and Illness Incident Report) of each recordable workplace fatality, injury, and illness – Form 301.
2. Enter each recordable injury or illness on the Log of Work-Related Injuries and Illnesses form – Form 300.
3. Enter totals on the Annual Summary of Work-Related Injuries and Illnesses form. Post the completed form no later than February 1, keep it posted where employees can see it through April 30, and provide copies as required – Form 300A.
4. Maintain these records in employer files for five years

Question 14

Reporting Fatalities and Serious Injuries or Illnesses - OSHA

Answer 14

Employers must immediately report fatalities and serious injuries or illnesses that occur in the place of employment, or in connection with employment, by telephone to the nearest Cal/OSHA Enforcement District Office. An alternative will be an online mechanism that is in the process of being developed. Enforcement District offices are listed under “Directory of Offices” in this guide and can be searched online by zip code or city

A serious injury or illness is one that requires hospitalization, regardless of length of time, for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement ( section 330h ). Accidents that result in serious injury or illness, or death that occur in a construction zone on a public street or highway are now included by statute. Work-related injuries, illnesses and deaths caused by the commission of a Penal Code violation are no longer excluded from the definition of “serious injury or illness.

Question 15

inspections

Answer 15

General Scheduled Inspections:
- Programmed planned – an inspection of employers randomly selected in specific industries, or as part of a national or local workplace safety and health emphasis program.
- Programmed related – an inspection of an employer at a multi-employer worksite that was not included in the programmed planned assignment that initiated the worksite visit.

Unprogrammed Inspections
…Accident
Complaint
Formal complaint
Non-formal complaint
Referral
Follow-up
Unprogrammed related

Question 16

initial contact

Answer 16

If permission to enter is refused, Cal/OSHA will obtain an inspection warrant. A Cal/OSHA inspection is based on one or more criteria and may focus on part or all of the workplace or operations. Inspection priorities are as follows:
… Imminent hazard
Fatality or catastrophe
Investigation of serious injury or exposure
Formal complaints
Scheduled inspection, usually of businesses in industries with higher-than-average potential risk

A serious exposure is defined as an exposure to a hazardous substance that occurs as a result of an incident, accident, emergency, or exposure over time and is in a degree or amount sufficient to create a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.

Question 17

(SKIT): The Case of Finger Pointing

Answer 17

Context: It is Wednesday, July 29, 2009 at 9:00 a.m. at Burbank Recycling. Line supervisor Miranda Lopez is in the office of Carmen Arroyo, Burbank Recycling’s Human Resources and Safety Manager
Julie: That’s right. I know you contacted your workers’ compensation insurance company and that you reviewed the records Zan gave you. I did, too. Do you think we also need to contact Cal-OSHA to tell them about this?
Carmen: No, I don’t think so. The rules require that OSHA be contacted about any “serious” injury that results in, among other things, an amputation. That doesn’t appear to be what Zan suffered, despite the title on those release instructions. He wasn’t hospitalized. The accident was bad, but it wasn’t serious as I read OSHA rules.
Danielle: Ms. Arroyo, I’m Danielle Sousa, an investigator with Cal-OSHA. The Burbank Fire Department alerted us that there was a serious workplace injury at your facility involving your employee Elizandro Moscoso. We were surprised we didn’t also hear from you.
Danielle: It’s not your job to make that call. It’s mine. I’ll let you know what I conclude after my investigation.

Legal Question: Did the company meet its obligation to report the injury to Cal OSHA in a timely manner

Initial thought: No

Final thought: NO

Outcome: Ruled against of company but gave them a warning (?) instead of a citation. The company appealed and lost. They found that the employee still had a reportable injury. When an employer has doubts about an injury then they should resolve doubts in favor of reporting it.

Discussion:
Cal OSHA wasn’t called because they didn’t think it was sever enough to call them
Maybe they could have called to make sure just in case
It wasn’t supposed to be up to them (??)
Reason to not want to call
Problem if you do because you don’t want to draw an investigation
They were unaware of the severity of his injury initially
Was there inpatient hospitalization?
NO
Was the fire department called?
YES
They claimed it was a serious injury
Was it serious injury? An amputation?
It was labeled as an amputation
Seemed traumatic
If they are going back and forth on a safety issue then should have played it safe and called OSHA for assistance

Question 18

HANDOUT 1

The Occupational Safety and Health Act: The Basics

Answer 18

The Occupational Safety and Health Act: The Basics

The Occupational Safety and Health Act is a federal law enacted in 1970 designed to reduce workplace hazards and improve health and safety programs.

The law requires employers to provide a workplace free of physical dangers and to meet specific health and safety standards. Employers must also provide safety training to employees, inform them about chemicals, notify government administrators about serious workplace accidents, and keep detailed safety records.

Virtually all businesses must comply with the OSH Act except for: (1) the self-employed who have no employees; (2) a farm that employs only immediate family members; and (3) businesses regulated by other federal safety laws.

The Occupational Safety and Health Administration enforces the law and is authorized to set standards beyond those contained in the OSH Act itself.

Under the federal law, most businesses with 10 or more employees must keep several kinds of records, including: (1) an injury and illness log; (2) records of employee exposure to hazardous substances or harmful physical agents; (3) records of safety training sessions. The records must be maintained for periods as long as 30 years.

Certain businesses are exempt from these record-keeping requirements.

OSHA inspectors can inspect a workplace at any time without advance notice or authorization by a court. Based on what inspectors find, they can issue citations and impose penalties. OSHA can’t inspect a workplace without employer consent. If consent is withheld, the inspector must obtain a warrant from a judge.

OSHA penalties depend on the seriousness of the violations. OSHA looks at: (1) the seriousness of the hazard; (2) the employer’s history of violations; (3) whether the employer has made a good faith effort to comply with OSHA standards; and (4) the size of the business. [p. 176 of the text]

The two most basic rights that workers have under the OSH Act are: (1) The right to complain to OSHA about workplace safety or health conditions without being penalized for doing so and (2) the right to refuse work if they have a reasonable and good faith belief that there is an immediate risk of serious injury or death. While the employer investigates a problem that an employee brings to the employer’s attention, the worker may be placed temporarily in another job at equal pay.

If a state has a safety and health law that exceeds federal OSHA standards, the state’s law governs and the state can take over enforcement of the standards from federal administrators. California is one of 21 states approved for such enforcement.

Question 19

HANDOUT 2

Employee Rights under Cal-OSHA

Answer 19

• An employee has the right to file a complaint and request an inspection of their workplace if conditions there are unsafe or unhealthful. This is done by contacting the local district office of the Division of Occupational Safety and Health. The employee’s name is not revealed by Cal/OSHA, unless the employee requests otherwise.
• The employee has the right to bring unsafe or unhealthful conditions to the attention of the Cal/OSHA investigator making an inspection of your workplace. Upon request, Cal/OSHA will withhold the names of employees who submit or make statements during an inspection or investigation.
• The employee has the right to ask that the employer correct hazards or violations of Cal/OSHA standards. Any employee also has the right to refuse to perform work that would violate a Cal/OSHA or any occupational safety or health standard or order where such violation would create a real and apparent hazard to the employee or other employees.
• An employee may not be fired or punished in any way for filing a complaint about unsafe or unhealthful working conditions, or using any other right given to the employee by Cal/OSHA law. If the employee feels that he or she has been fired or punished for exercising his or her rights, he or she may file a complaint about this type of discrimination by contacting the nearest office of the Department of Industrial Relations, Division of Labor Standards Enforcement (State Labor Commissioner) or the San Francisco office of the U.S. Department of Labor, Occupational Safety and Health Administration.

Question 20

HANDOUT 3

Employer Responsibilities under Cal/OSHA

Answer 20

Establish, implement and maintain an Injury and Illness Prevention Program and update it periodically to keep employees safe
Inspect workplace(s) to identify and correct unsafe and hazardous conditions
Make sure employees have and use safe tools and equipment and properly maintain this equipment
Use color codes, posters, labels or signs to warn employees of potential hazards
Establish or update operating procedures and communicate them so employees follow safety and health requirements
Provide medical examinations and training when required by Cal/OSHA standards
Report immediately by telephone or email to the nearest Cal/OSHA Enforcement Unit district office any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment. . . .
Keep records of work-related injuries and illnesses on the log 300. At the end of the calendar year, copy the totals from the log 300 and transfer the information to the log 300A which must be posted February 1 through April 30 each year, if the employer has 11 or more employees and is not exempt.
Post, at a prominent location within the workplace, the Cal/OSHA poster informing employees of their rights and responsibilities.
Do not discriminate against employees who exercise their rights under the California OSH Act
Post Cal/OSHA citations at or near the work area involved. Each citation must remain posted until the violation has been corrected, or for three working days, whichever is longer. Post abatement verification documents or tags
Correct cited violations by the deadline set in the Cal/OSHA citation and submit required abatement verification documentation.
An employer has additional responsibilities concerning COVID-19-related workplace conditions and incidents.

Question 21

HANDOUT 4

Workplace Violence

Answer 21

Workplace Violence Prevention Plan

On July 1, 2024, new Labor Code section 6401.9 added by SB 553 will require most California employers to implement a written workplace violence prevention plan, either as a standalone plan or as part of the employer’s required injury and illness prevention program. Employers should start developing their plans early in the new year.

“Workplace violence” defined

The law covers “any act of violence or threat of violence that occurs in a place of employment.” A “threat of violence” means any oral or written statement however transmitted – including through social media – that “conveys an intent, or that is reasonably perceived to convey an intent, to cause physical harm or to place someone in fear of physical harm” for no legitimate purpose.

Workplace violence includes the threat or use of physical force against an employee that causes, or is highly likely to cause, injury or psychological trauma, regardless of whether the employee sustains an injury.

Elements of mandatory plan

The employer’s plan must address the specific hazards of each work area and operation.

The plan must include 12 specific things, including:

The employer’sprocedures for accepting and responding to reports of workplace violence and a statement prohibiting retaliation against an employee who makes a report;
How an employee may report a workplace violence incident, threat, or concern about violence to the employer or law enforcement and how employees will be informed of the results of investigations and corrective action taken;
Effective procedures to respond to workplace violence emergencies, including effective means to alert employees of the presence, location, and nature of such emergencies; and
Procedures to review and revise the plan at least annually, but also when a deficiency in the plan is identified and after a workplace violence incident.

Mandatory record-keeping

An employer must keep a log with information about each incident of workplace violence. The log must omit perosnal identifying information of anyone involved in the incident.

The log must include, among other things:

When and where the incident occurred;
A detailed description of the incident;
The workplace violence type, including whether it was committed by a customer, current or former employee, or a stranger;
The surrounding circumstances, including whether the employee was “working in poorly lit areas, rushed, working during a low staffing level, isolated or alone, unable to get help …;”
The nature of the incident, such as whether it involved a physical attack with a weapon or a sexual assault; and
Whether security or law enforcement was contacted and actions the employer took to protect employees from any continuing threat.

Mandatory employee training

When the plan is introduced and annually thereafter, employers must provide training of unspecified duration to their employees about their plans, using training material “appropriate in content and vocabulary to the educational level, literacy, and language of employees.”

The training must advise employees about, among other things:

How to obtain the plan and how to participate in the development and implementation of the plan;
How to report workplace violence incidents or concerns to the employer or law enforcement; and
Workplace violence hazards “specific to the employees’ jobs, the corrective measures the employer has implemented, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm.”

{A person knowledgeable about the plan must be available at the training to answer employee questions.}

An employer must provide additional training “when a new or previously unrecognized workplace violence hazard has been identified and when changes are made to the plan.”

Exempt employers

Hospitals and other health care and related facilities are already required under existing law and regulations to have workplace violence prevention plans so they are exempt from the requirements of the new law.

Also exempt from the new law are: (1) any location (???) frequented? by employees to telework that are not under the employer’s control; and (2) workplaces “where there are less than 10 employees working at the place at any given time and that are not accessible to the public.” That means small employers with publically accessible workplaces, such as small shops and restaurants, are subject to the new law.
[Source: D. Eaton, San Diego Union-Tribune “Law at Work” “New Steps Employers Must Take to Prevent Workplace Violence” January 1, 2024]

Question 22

HANDOUT 5

The Employer’s Duty to Report Serious Workplace Injuries Under California law.

Answer 22

The Employer’s Duty to Report Serious Workplace Injuries Under California law.

(a) Under California regulations: (a) Every employer shall report immediately by telephone or email or through a specified online mechanism established by the Division for this purpose email to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment. Until the division has made such a mechanism available, the report may be made by telephone or email. Immediately means as soon as practically possible but not longer than 8 hours after the employer knows or with diligent would have known of the death or serious injury or illness. . . .
(b) Whenever a state, county, or local fire or police agency is called to an accident involving an employee covered by this part in which a serious injury, or illness, or death occurs, the nearest office of the Division of Occupational Safety and Health shall be notified by telephone immediately by the responding agency.
[Source: Title 8, Cal. Code of Regulations, §342.]
“Serious injury or illness” means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for any period of time for other than medical observation or in which an employee suffers an amputation or the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.
[Source: Cal. Labor Code § 6302(h); Title 8, Cal. Code of Regulations, §330(h).]

Question 23

(SKIT): The Case of Whale of an Accident

Answer 23

Context: It is April 5, 1971. Kent Burgess, the director of Sea World’s animal training department, is in his office with Gail MacLaughlin, Sea World’s public relations director. Sitting outside Kent’s office is Anne E. Eckis, Kent’s 21 year-old secretary

Legal Question: Is Anne limited to workers compensation for her injuries? (can she sue?)

Initial thought: No she deserves more

Final thought: Deserves more

Outcome: In favor of Anne. Seaworld appealed and they won. Anne argued that she was hired as a secretary not a whale rider, but these arguments were without merit. Workers comp is not limited to job duties for which an employee was hired.

Discussion:
It wasn’t going to be something he was going to make her do but in the case he was very pushy
She’s a secretary not a whale ride does workers comp cover everything? Can she sue? Its not like this was a part of her job?
She wasn’t wearing a wearsuit and she was advised to not do this but her employers push her to wear a bikini for the shoot
The second time things went bad because the whale was fluttering his tail indicating he was upset
The third time is when shamu attacked
The essential question
Was this in the course and scope of her job duties
If yes, then the answer is yes it is limited
If no, then the answer is no it is not limited
She deserves more than workers compensation and should sue this was preventable and her employer was negligent
The answer is actually not obvious
Consider how she was not forced technically (no ultimatum)
However, shes a secretary so
She wasn’t trained either
They didnt tell her about the risk of taking the water temperature
Kent [to Gail]: Gail, Anne here is indispensable to me. Most of the time she does secretarial tasks, but she’s always willing to pitch in wherever she’s needed. Sometimes she takes the water temperature of the whale tanks, sometimes she does research, and sometimes she just runs errands that I don’t have the time to do.

Question 24

HANDOUT 5: CALIFORNIA WORKERS’ COMPENSATION LAW

Answer 24

Workers’ compensation is an employee’s exclusive remedy against his or her employer for any injury a rising out of and in the course of the employment and for the death of any employee . . . in those cases where the following conditions of compensation concur:
Where, at the time of the injury, the employee is performing Service growing out of and incedental his or her employment and is acting within the course of his or her employment.

(3) Where the injury is proixmately caused by the employment,
Either with or without negligence.

(4) Where the injury is not caused by the intoxication, by alcohol
or the unlawful use of a controlled substance, of the injured
employee. . . .

(5) Where the injury is not intentionally self-inflicted.

(6) Where the employee has not wilfully and deliberately caused his or her own death.

(7) Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.

(9) Where the injury does not arise out of voluntary participation in any off duty recreational, social, or athletic activity not constituting part of the employee’s work related duties, except where these activities are a reasonable expectancies of, or are expressidly or implyidly required by, the employment.

[Source: California Labor Code §3600 (excerpts).]

The workers’ compensation law “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course their employment.”

[Source: California Labor Code §3202]

Question 25

HANDOUT 6

Other Key Aspects of California Workers’ Compensation Law

Answer 25

Other Key Aspects of California Workers’ Compensation Law

California law requires employers to have workers’ compensation insurance if they have even one employee. Generally, coverage for sole owners is optional. A roofer with no employees is still required to carry workers’ compensation insurance. A real estate broker is required to carry workers’ compensation insurance for its agents, even if they are ICs (??). Out-of-state employers may need workers’ compensation coverage if an employee is regularly employed in California or a contract of employment is entered into here.
Workers’ compensation insurance premium rates are not regulated by the state. While the Workers’ Compensation Insurance Rating Bureau - the licensed statistical agent for the state insurance commissioner - issues recommended rates and carriers must file their rates with the California Department of Insurance, rates can vary from carrier to carrier.
A number of factors go into determining the annual premium the employer’s insurance carrier charges. These include the employer’s industry classification, the employer’s company’s past history of work related injuries (known as (???) modification), payroll, any special underwriting adjustments such as use of a certified health care organization, and any special group or dividend programs for which the employer is eligible.
Workers’ compensation insurance is part of the cost of doing business. An employer cannot ask employees to help pay for the insurance premium.
If an employee tells the employer that he has gotten sick or been injured on the job, the employer must: (1) Provide a workers’ compensation form to the employee within one working day after the work-related injury or illness is reported; (2) return a copy of the completed form within one working day of reciept??recieved; (3) Forward the claim form, along with the employer’s report of occupational injury or illness, to the employer’s claims administrator within one working day of reciept; (4) Within one working day of receiving the employee’s claim, authorize up to $10,000 in appropriate medical treatment; (5) Provide light duty work if appropriate and available; (6) Give an employee who is the victim of a crime at work notice of workers compensation’ eligibiltiy within one working day of the crime.
An employer who thinks an employee’s workers’ compensation claim is not valid should report that opinion to its workers’ comp claims administrator. Tell them all the facts that are known, any witnesses of which the employer is aware, and the people they should talk to. Follow up any phone or verbal report with a letter.
Workers’ compensation fraud is a crime and it can come in many forms: a worker saying they were injured on the job when their injury really occurred while skiing; an employer saying their employees work at desk jobs when they’re really construction laborers; a medical provider billing for six treatments on an injured worker when they only provided two, etc. These are just a few examples of fraud in the workers’ comp system. Fraud is a serious problem and should be reported to the California Department of Insurance (CDI) or the local district attorney for investigation.
Failing to have workers’ compensation coverage is a criminal offense. Section 3700.5 of the California Labor Code makes it a misdemeanor punishable by either a fine of up to $10,000 or imprisonment in the county jail for up to one year, or both. Additionally, the state issues penalties of up to $100,000 against illegally uninsured employers.
If an employee gets hurt or sick because of work and the employer is not insured, the employer is responsible for paying all bills related to the injury or illness. Workers’ compensation benefits are only the exclusive remedy for injuries suffered on the job when the employer is properly insured. If the employer is illegally uninsured and an employee gets sick or hurt because of work, that employee can file a lawsuit against you in addition to filing a workers’ compensation claim.
If the Division of Labor Standards Enforcement (state labor commissioner) determines that an employer is operating without workers’ compensation coverage, a stop order will be issued. This order prohibits the use of employee labor until coverage is obtained, and failure to observe it is a misdemeanor punishable by imprisonment in the county jail for up to 60 days, or by a fine of up to $10,000, or both. The Division of Labor Standards Enforcement will also assess a penalty of $1,000 per employee on the payroll at the time the stop order is issued and served, up to $100,000.
Additionally, if an injured worker files a workers’ compensation claim that goes before the Workers’ Compensation Appeals Board and a judge finds the employer had not secured insurance as required by law, when the dispute is resolved the uninsured employer may be assessed a penalty of $10,000 per employee on the payroll at the time of injury if the worker’s case was found to be compensable, or $2,000 per employee on the payroll at the time of injury if the worker’s case was non-compensable, up to a maximum of $100,000.