Legislation that Can’t be Ignored

For the last ten years I have avoided jumping into the legislative process. Like most of our shop leaders, I view my job is to work hard and get the best results possible in the environment that surrounds us. When legislation would change matters, my job would be to adjust and figure out how to succeed and represent our members with the best results possible. I think that’s probably what most of our shop managers do. However, things change and all of a sudden it appears that we have no choice but to be more involved.

As I look at the legislative changes for our shops in just the last eight months, there have been dramatic shifts in policy that effects our businesses. As many of you are aware, we have been active partners with the Michigan Manufacturers Association. They have a strong legislative arm. MTM is also a member of the Insurance Alliance of Michigan (IAM). That is a group of insurance companies that also has a legislative presence. For the most part MTM and myself individually have attended but not been active in those legislative efforts. With the introduction of House Bill 4390, it is obvious to me that we must be more involved and encourage our members to be involved also.

By Ruth Kiefer, Vice President of Loss Control

MIOSHA is back out in the field with a seemly whole new crew of enforcement officers and they are knocking on lots of policyholder doors. After a few years off due to Covid, it is now necessary that you put safety back into the forefront of your businesses. It is very important that you take this time to dust off your safety programs and review your programs and when the last time your employee’s were trained. You need to ensure that your safety training is up-todate or determine if you are missing some programs due to new equipment installed or change of staffing.

You can find all the necessary safety programs on our portal. These safety programs are fill-in-the-blank templates that help you satisfy the written program requirements for MIOSHA. Also on the portal is everything you need for your safety training requirements as well, with well over 700 videos you’ll definitely find what your looking for. If you need to narrow the scope of your training needs, reach out to your MTM loss control person so they can direct you to the right video or written program.

By Donna Motley, Vice President of Claims

Michigan Workers’ Compensation Administrative Rules dictate that once a claim form concerning an employee work related injury is submitted to the Workers’ Compensation carrier, the Workers’ Compensation carrier has 30 days to make a determination “of some kind”. A definite or final determination of benefits does not have to be made when a claim is first filed with the carrier; BUT the claim has to be addressed. If the initial investigation results in the carrier being able to make a determination that the claim is valid, benefits commence. Benefits would include authorization for medical testing and/or treatment, payment of related bills submitted and payment of wage loss benefits if/when applicable.

If the carrier is unable to make a valid determination within 30 days, it usually means additional investigation is necessary, medical records need to be obtained, written statements requested, a medical evaluation scheduled, etc. The 30 day clock is ticking, so the carrier has to file a form with the State of Michigan entitled Notice of Dispute. The Dispute includes the reason why it is being filed – under the above circumstances the reason would be “Further Investigation Required”, “Additional Information Required from Employee” or “Other”.

By Melanie English, Underwriter / LPT Program Manager

The MTM Underwriting and Marketing Departments regularly receive inquiries about Workers’ Compensation coverage for our Member’s out-of-state employees. Often it is because a Member has hired a salesperson, clerical staff or installers who work in other states or an acquired out-of-state facility. Due to an increase in these inquiries, we thought it was a good time to update you on the out-of-state coverage requirements.

By Donna Motley, Vice President of Claims

Summer in Michigan! It seems like we have been waiting a long time this year for the arrival of summer. Not that we had a harsh winter or even a long winter – it just seems that our weather has been so up and down. I think when you live in a State that has snow, ice, cold temperatures and power outages, you work hard and like to play hard too ! At the first sight of 60 degree temperatures, people native to Michigan break out the shorts and flip-flops. We’ve been waiting and we are anxious!

First of all, we have to clean up from the winter or maybe even the left-over fall season. Now we can ride our bicycles or motorcycles. We can plant and maintain our flower or vegetable garden(s). We can hand-wash the car, wash windows, cut grass, trim bushes. We can now golf, play baseball, swim in a pool or lake, play horseshoes, cornhole, Jarts, you name it. Let’s not forget about boating, jet or water ski’s, tennis, maybe even Pickleball? Camping and campfires (setting up and tearing down). Traveling to other states or countries, hiking, and all around site seeing.

By Travis Halsted, ARM, COSS, Loss Control Consultant

The Future is Here

As we look outside every morning, we see that the weather is improving, and we are starting to shake that cabin fever. The sun hits our faces on the way to work, and optimism fills us for the upcoming day. Regardless of the industry that you work within, most of us are all met with the same issue once we arrive in our parking spots. That issue is simply people, or the lack thereof. The ability to not only find people willing to work, but to secure them for a period of time that extends past the first day is quite a feat as of late. Very few places have been able to combat this issue, but some of the manufacturing facilities have found a possible resolution. This resolution is simply re-placing the position in which an employee would be with a collaborative robot, or often referred to as “cobots”. As labor costs continue to rise, as does the need for flexibility in automation, mixed with the aforementioned shortage of qualified workers, employers are finding these cobots to not only be an option, but more so as their only option. The sales of these robots had grown to $400 million in 2017 but is expected to climb as high as $7.5 billion by the year 2027.

By Ruth Kiefer, Vice President of Loss Control

This year our Loss Control department has completed accident investigations for more fork truck related injuries than any other year I have seen in my 17 years at MTM.We have had crush injuries from running over other persons feet, dropping loads on others, being ejected from the fork truck, and pedestrians being struck by fork trucks. So I am here to remind you of some safe travel practices that your operators should take when driving the industrial truck.

By Donna Motley, Vice President of Claims

Before setting goals, you need to evaluate the past. I’m not referring to New Year Resolutions – I’m referring to behavioral changes. Review the work related injuries that occurred at your facility this past year. If you count “zero” – keep up the good work – something is working in your favor! Is it your safety program? Safety meetings? Safety training? A Safety reward program? Open communication with your employees? Work place culture? All of the above?

Did your facility record a “near miss” or two? If so, consider a near miss to be a “warning” of what could have happened. Review the near miss scenario to de-termine what could have happened, i.e. the worst case scenario. Then review and implement corrective actions to avoid another such incident. Michigan is a “no-fault” system. Workers’ Compensation benefits are not deter-mined based on whether or not the employee was “at fault”, resulting in the injury. The only exception is if the employee is injured as a result of their intentional and willful misconduct, (i.e. – the employee punched the wall in anger).

By Donna Motley, Vice President of Claims

When someone tells you they have “good news” and “bad news” – which news do you want to hear first? For me, it depends on what kind of mood I’m in at the moment. As we all know, we are still feeling the aftershock of COVID-19 – and maybe will for a long time to come. One of the negative events was termed “The Great Resignation”. Employees resigned from their employment in record numbers. A large segment of those ending their employment were of, or nearing, retirement age. This resulted in a large loss of “experienced and skilled” employees. This loss of experience has a major impact on the employer, regardless of the industry; industrial, hospitality, construction, trucking, etc. This is bad news for employers.

After two years, The Great Resignation has morphed into “The Great Reshuffle”, meaning a significant number of employees that resigned (or were let go) are now working their way back into the workforce. Some workers returning to the same industry they worked in the past; some workers are attempting new career paths. Reports indicate that in May 2020, 54% of workers 55 and older were either working remotely or unable to work at all (in their particular industry). Today, that figure has decreased to 15%. The U.S. Bureau of Labor Statistics indicates that by year 2030, one in four U.S. workers will be 55 or older. That is the good news!

By Ruth Kiefer, MSc, ARM

As the pandemic created a bit of a challenge for us during the past two years, it also created a fiscal challenge for MIOSHA compliance. In review, pre-pandemic era of 2019, MIOSHA issued 543 safety related violations and collected $1.38 million in fines. In 2020, they issued 352 and collected $1.07 million in fines. I have yet to find the 2021 data, so we have a gap year of 2021. With this said, you can see that they were still out conducting some visits in the 2020 year but have a lot to make up. I would like to take this opportunity to contrast the two years to show you that some of these safety violations remain a top priority in MIOSHA’s enforcement efforts and should be a top priority to address in your facilities prior to a compliance visit.

As a reminder, this is only a partial list of possible things they can look at, the above is just some of their top SERIOUS violations. These were the most common violations between the two years and with the most for you to lose in penalties. As enforcement is increasing their efforts to address their fiscal short fall, I would highly recommend that you contact your Loss Control Representative and invite them in. We can take a proactive approach to address some of the safety items that may have creeped back into your facilities over the last two years. The pandemic shifted the way we did business and ran our facilities, as we migrate back to normal, so must we all in complying with the MIOSHA standards of safety. We’d love to help you!

By Donna Motlet, Vice President of Claims

It is a New Year! It seems some things change and some things remain the same, almost as if we are in some sort of time warp!

What’s new?

• For the year 2022 the new maximum weekly Workers’ Compensation benefit rate is $1,048.00. The State bases this rate on a State Average Weekly Wage of $1,163.79. Compare the Workers’ Compensation maximum which is “non-taxable” to the State Unemployment weekly maximum benefit that IS TAXABLE, $362.00. Obviously, the Workers’ Compensation weekly benefit is determined by averaging the highest 39 of 52 gross weekly wages, pre-dating the date of injury. The maximum Workers’ Compensation weekly benefit rate for 2021 was $975.00.
• The new mileage rate paid for 2022 covering mileage to and from medical appointments is $.585. The mileage rate paid for 2021 was $.56.
• In December 2021 one of the appointed Workers’ Compensation Court Magistrates “quit”. The State’s Governor appoints the Workers’ Compensation Court Magistrates. A replacement Magistrate was appointed with an expiring term of January 26, 2023. Effective January 26, 2023, 7 of the 14 currently appointed Magistrates have a term expiration. The remaining 7 Magistrates remain through January 26, 2025. There is a gubernatorial election in November 2022. It would appear that the “incoming” governor would be responsible for the new Magistrate appointments.
• Michigan Workers’ Compensation Plaintiff Attorneys got a pay increase. Their fee has been calculated at 15% of the first $25,000 (settlement), then 10% of the settlement balance. Their fee is now calculated at 20% of the first $100,000 (settlement), then 15% of the settlement balance.
• Michigan Workers’ Compensation Courts are open but will still conduct business via Zoom and Affidavits on a case by case basis.
• Per the Michigan Workers’ Compensation Act, wage loss benefits can be coordinated with Unemployment Benefits, with Workers’ Compensation taking a 100% credit of the Unemployment Benefits paid. During COVID, workers alleging work related disability were allowed to receive both State and Federal (Unemployment) benefits. Attorneys representing injured workers are diligently attempting to have orders passed eliminating Workers’ Compensation coordinating with Federal benefits.
• Multiple platforms continue to push for legislation citing COVID as a work related occupational disease/condition. Said attempts are at both, State and Federal levels, and vary from state to state.

What is not new ?

• Employees continue to diagnose with COVID/Omicron, continue to “test” for COVID/Omicron, allege exposure to COVID requiring the necessity to quarantine. Employers still suffer from a labor shortage, consumer products are experiencing shortages, a significant portion of the workforce continue to work from home, doctor offices limit visitor attendance, physician appointments are being cancelled and rescheduled. Debate continues over vaccination and vaccine mandates. Recreational marijuana is legal. Stress levels remain high. Everyone is anxious for Spring/Summer!

When hiring new employees, please make sure they receive proper training and instruction to perform their job duties. We have seen an increase in serious injuries of recent hire employees. Please stress the importance of NOT taking shortcuts – the results can be serious. Please make sure new employees are familiar with your company policies, procedures and protocols. While a short-cut may seem like a good idea at the time, taking a short cut can create serious long-term issues. Employers must also keep MIOSHA regulations in mind at all times.

A couple months ago I wrote you about out-of-state staff i.e., when you have employees in states other than Michigan. Trying to avoid the 27-point test, I broke it down to a few simple points that work in nearly all cases. That article prompted many calls from you, and I think we answered your individual questions. With that topic mostly behind us, the next logical area is “when are my subcontractors (and their employees) MY employees?” Like the complicated list of test questions for an employee’s coverage state, the sub-contactor test is just as complicated and varies widely by state. I will focus on Michigan rules but use a couple other state examples to illustrate the state differences.

Is this the employee covered in Michigan, or another state?

Part of my daily tasks is answering member’s questions. When a particular question begins to surface weekly, it’s time to share the question and answer with all of our members. The recent regular question looks like this “Is my employee in Indiana covered by my MTM policy?” With more remote working going on especially in sales and clerical/engineering jobs it seems logical that this question is coming up more.

While the rules can vary by state, and in fact even in Michigan there is a complicated more than 15 question criteria that is used, there are three or four much more simple questions that answer the vast majority of situations. Because our members need quick reference answers, let me walk you through this simple criteria.

By Donna Motley, Vice President of Claims

We have received many requests in relation to whether or not employers can mandate COVID-19 vaccinations for their employees. I reached out to one of our attorneys, William Buie of Conklin Benham to provide information that could be shared with our policyholders. Below is the information that I received from him:

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance stating that employers can generally mandate Covid-19 vaccines for employees who physically enter the workplace without violating federal antidiscrimination laws. However, employers requiring employees to get vaccinated need to consider religious and disability related objections and explore reasonable accommodations that may be required under the Americans with Disability Act.

By Ruth Kiefer, MSc, ARM

As my team and I continue to assist you with the most recent COVID-19 rules and regulations, we are still fielding questions regarding outbreaks and what to do if an employee tests positive. Awhile back, MIOSHA dialed back their requirements for protecting your employees from COVID-19 and are now highly recommending that employers follow the updated CDC guidelines due to the Delta variant.

Recently, MIOSHA has rescinded their Emergency Order and dialed down their requirements. They are strongly encouraging businesses to follow the CDC and OSHA guidance concerning protecting your workers from COVID-19 and allowing you to use your judgement in continuing using your COVID-19 Response Plans. What does that mean exactly? What are your obligations to your employees? Will they fine you? The good thing is, you are already prepared to follow the CDC/OSHA guidelines, you have your COVID-19 Response Plan, you are completing your health screenings, and you are protecting your unvaccinated employees by social distancing and/or requiring them to wear masks when they can’t maintain six feet of distance from others.

As referenced by OSHA, the CDC’s Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. OHSA is recognizing the vaccination status of your employees, so if 100% of your employees are fully vaccinated, then you may stop reading and go about your life as if there is no pandemic, this is the carrot of the governing agencies. However, if you have employee’s that are not fully vaccinated, then continue on with the read. Remember, MIOSHA does have the duty to protect Michigan workers and has the flexibility to rule under OSHA.

The Michigan Occupational Safety and Health Administration (MIOSHA) this week issued updated COVID-19 workplace rules that all employers must follow. The rules supersede the Emergency Rules (“Rules”) filed on Oct. 14, 2020, and extended by the Governor in April through October 2021.

These rules have been scaled back for those who are vaccinated and are designed to be more aligned with the new Centers for Disease Control (CDC) guidance and the Michigan Department of Health and Human Services (MDHHS) Epidemic Orders (current and new as of June 1). The new Rules require employers to:

By Chris Demeter, Senior Loss Control Consultant

How many of you remember your first paying job? My first job was at Kentucky Fried Chicken. At 16-years old, I was frying chicken in 350°F oil in a pressure fryer until golden brown. I do recall a few burns from splattering oil while performing my duties. Overall, the job was alright since I was able to eat all the chicken I wanted and I saved up enough money to buy my first car. It was a 1970 Ford Torino GT, in which I tended to have a lead foot that led to a few unwanted but deserved traffic tickets. According to my wife, I drive like a grandpa now so no more driving like that young inexperienced driver.

Young workers have high rates of job-related injury. According to the Department of Labor, in fiscal year 2020, teens age 15-19 were treated in the emergency room for a workplace injury approximately every 5 minutes. These injuries are often the result of the many hazards present in the places they typically work, such as sharp knives and slippery floors in restaurants. Young workers are at risk of workplace injury because of their inexperience at work and their physical, cognitive, and emotional developmental characteristics, and a lack of safety training also contribute to high injury rates. They often hesitate to ask questions and may fail to recognize workplace dangers. To help address this problem, MIOSHA enacted the Youth Employment Standards Act 90 of 1978. The Act defines a minor who is less than 18-years of age, including but not limited to employees, volunteers, independent contractors, and performing artists.

By Ruth Kiefer, MSc, ARM, Vice President of Loss Control

As you know an outbreak at your facility can be devastating not only to your staff morale but to your production line as well. This puts you in a pinch and scrambling for staff to complete your orders for 14 days while they are quarantining. As of December 8, 2020 the CDC has put forth new guidelines for quarantining. So here is the bottom line… those who have had close contact still need to quarantine and the local health department will determine the length of time, but this time could be significantly reduced.

The current posters that have previously been distributed to you are up to date with the current state and federal requirements. The COVID poster is required until December 31,2020 and due to the potential for that date to be extended or new poster requirements, we have decided to postpone our annual poster mailing until Spring to make sure that the posters meet all requirements. In the event that there is a new requirement, we will send the update to you.