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Understanding Workers Compensation: The Role of Frontline Management
   by William Wahoff, Scott, Scriven & Wahoff, LLP
   Management   Fall  2011
  

In today’s workforce, it is now more critical than ever to educate and train your company’s frontline supervision in understanding workers’ compensation and how to minimize company losses as a result of workers’ compensation injuries. This article will address how educating your frontline management can reduce work- related injuries, promote a safe workplace for your company’s associates and avoid litigation.

Immediately and Thoroughly Investigate Incidents
First, immediately and thoroughly investigate incidents/injuries. Frontline supervision must be trained to properly investigate any workplace incidents and/or injuries that occur within their supervisory roles, i.e., associates they directly supervise, incidents and/or injuries eyewitnessed, and/or incidents and/or injuries reported to them by associates or “heard through the grapevine.”

Supervisors/management must emphasize to associates the importance of timely reporting for any injuries and/or incidents. Emphasize that it does not matter how minor the injury and/or incident may have been – it always is important to report the injury and/or incident in a timely manner.

Once an incident and/or injury has been reported, an incident investigation must be commenced immediately. This is necessary because memories can fade fast. It is important to get an accurate picture of how the incident and/or injury occurred, exactly what was happening at that time and who was involved in the incident and/or injury before memories fade and records are destroyed. Supervisors must be trained in detail about why prompt incident investigation is essential.

A prompt investigation is necessary because if it is a work-related injury, then the investigation will help determine if the claim is valid. It also is important because a specific process may need to be re-evaluated and improved to prevent further incidents and/or injuries or to take any disciplinary action.

There also is a possibility that a current or former employee may sue his/her supervisor after an incident and/or injury if your state allows such suits. If a prompt and proper investigation takes place, then there is a better ability to properly defend the supervisor in the lawsuit. If no investigation takes place, then it will be difficult to determine what was done at the time of the incident and/or injury as there may be little or no documentation that exists about the incident and/or injury.

Supervisors should have standard witness questions. When there is an explanation of the incident, make sure it is explained so that a third party could understand it (i.e., if the floor was dry, take a picture).

It is sometimes difficult to predict what course legal claims will take, so training frontline supervision in potential legal liabilities, particularly their own potential liability or the possibility of a criminal case against them, will make it more likely they will be diligent in their investigation.

Enforcement of Safety Rules
Frontline supervision must be trained to enforce safety rules. Everyone knows safety rules are in place for a reason and should be strictly followed throughout the plant. As soon as an injury or citation occurs, the associate’s failure often is cited. One can raise an employee misconduct defense to an OSHA citation; however, the defense can fail if supervisors are not trained in the employee misconduct defense or the rules are not being enforced throughout the plant. An employee misconduct defense to OSHA violations has four different required factors: the first is to establish a reasonably specific rule to prevent safety violations; the second is to adequately inform employees of the rule; the third is to take steps to discover non-compliance; and the fourth is to effectively enforce safety rules when violations are discovered. If there are no written warnings or other discipline documented, the defense can be difficult.

Frontline management must be educated about the OSHA General Duty Clause, which states each employer “shall furnish…a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Within the last year, OSHA has increased its enforcement of the General Duty Clause. If OSHA can find proof of your or your supervisors’ knowledge of a condition that is recognized as a hazard, OSHA believes it can issue a citation under the General Duty Clause for almost any safety hazard.

Strictly Observe Medical Restrictions
Another critical training point for frontline management is the method for appropriately handling any medical restrictions given by treating physicians or company physicians to associates. If an associate is given medical restrictions by such a physician, those restrictions must be followed exactly. If the supervisor has questions regarding the restrictions, those questions must be brought to the attention of upper management; but the supervisor must not disregard or question the restrictions given without instruction to do so. If an associate insists he/she does not require restrictions, but the supervisor has restrictions on file, then the associate must be told to obtain a full duty release from the doctor before those restrictions can be lifted.

Evaluation Points for Frontline Management
It is obvious that having full support and participation of the company’s frontline management is necessary for a safe workplace. Leniency among frontline supervisors about safety issues is prevalent in workplaces because supervisors can be fearful that strict enforcement of safety rules can result in poor relationships with the associates. Topline management must therefore clarify that it will not tolerate violations so that the supervisors are “forced” to enforce the rules. They should be evaluated on the enforcement of safety rules along with other criteria so that it affects their compensation.

Therefore, supervisors must be trained to use calendars, notepads, ledger books or specific forms to make it convenient to document events and enforce the rules. The limits of frontline discretion must be clear. At times, safety rule enforcement can result in suspension or termination. Management should ensure that terminations are reviewed by a legally knowledgeable and responsible person in the company. At times, there is a failure to investigate or to discover sufficient facts internally to make an informed employment decision. Review by an uninvolved management official can assist in completing the record.

Training supervisors to enforce policies on the immediate reporting of injuries can greatly reduce workers’ compensation abuse. First, make sure there is a policy requiring immediate reporting of injuries (i.e., within the same shift or part of shift). Then, with that policy posted everywhere in the workplace, give written warnings to those who do not comply. Continue to follow up with progressive discipline for multiple offenders.

In conjunction with the employee’s failure to immediately report injuries is the failure of the supervisor to immediately investigate and document reported alleged injuries. If a policy is in place requiring the immediate reporting of injuries, but your supervision delays the investigation of incidents, then the policy and enforcement will not have credibility. It is vital that supervisors and managers understand that when an employee comes to them with an incident, they are to obtain the employee’s statement immediately and conduct an investigation. Again, this should be an evaluation point.

Employees Training Employees
A prevalent workplace problem is systems that rely on employees to train other employees without meaningful checking by management. In those systems, the company is exposed to claims for which it may have an impaired defense. Ensure all new employees know all of the safety aspects of their job; use individual sign-offs by employees on specific safety points considering their specific jobs.

Managers and supervisors must be educated in the OSHA requirements. Supervisors should have at minimum the OSHA 10-hour course. Lock Out/Tagout (i.e., control of energized circuits), machine guarding, personal protective equipment, evacuation plans, occupational noise exposure and recordkeeping are some of the areas most cited by OSHA in this industry. Specifically with machine guarding, it is essential to double-check that all machines are guarded in accordance with OSHA standards.

In some states, companies/management possibly can be presumed to have committed an intentional tort, allowing an employee to sue, if a guard has been “deliberately removed.” In any case in which a guard that has been present is absent, the company is exposed to citations by OSHA and possibly lawsuits that will need to be defended in the event of an injury.

Termination of Injured and/or Disabled Employees
Sometimes companies make decisions without thoroughly considering all the consequences in terminating employees who have had severe injuries. Even if some accommodations have been made, any termination should be thoroughly reviewed with legal counsel. Worrying about small details, such as return of uniforms or other materials and then withholding funds until such items are returned, can motivate former employees to sue the company. While the company should not give up management’s legal rights in the process out of fear of being sued or having a claim filed, actions taken must be carefully considered before a decision is made. However, if the company is sued, damages are more often reduced if the employee is still employed, so assisting the injured employee can reduce exposure to the company.

Conclusion
Acquaint, educate and train your frontline management in their role in your safety and health and workers’ compensation programs. Have them understand their precise responsibilities and the limits of their decision-making authority. Train them in why it is in their personal interest to enforce safety rules, enforce rules about the immediate reporting of injuries and immediately investigate incidents.

William J. Wahoff, Esq. is a partner in the law firm of Scott, Scriven & Wahoff, LLP. The firm represents public and private sector employers in labor and employment law, specializing in workers’ compensation, OSHA and intentional tort defense. Wahoff can be reached via email at bill@sswlaw.com or by phone at 614.827.6404. The firm’s website can be accessed at www.sswlaw.com.