Vol. 31, No. 4, April 2002
In This Issue
Lactation Accommodation
Sample
Lactation Accommodation Policy
"Reducing Pesticide
Risk" Training Program
Controlling WC Claims: Early Return to Work
Sample
Injury/Illness Reporting and Early Return to Work Program Policy
Sample
Injury/Illness Procedures
Sample
Witness Incident Report Form
Sample
Temporary Job Offer Letter
CRLA
Continues Wage-and-Hour Litigation
ALRB Now Has Only
Three Members
ARLB Re-Aligns Coastal Area,
Oxnard Office Staffing
Few Elections in 2001
No Back Pay
for Undocumented Aliens
Sample “Physical Job
Description” Form
Safety Sheet: General Tractor Safety
As of Jan. 1, 2002, every employer in California must provide a reasonable amount of break time to accommodate an employee wishing to express breast milk for her infant child.
Further, every employer must make reasonable efforts to provide such an employee with the use of a room or other location, other than a toilet stall, near the employee's work area where she can express milk in private.
The statute does not define what constitutes "reasonable efforts." The room or other location may include the place where the employee normally works if it is a private area.
Neither does the statute define what constitutes a "reasonable amount" of break time. California's Industrial Welfare Commission (IWC) orders require employers to provide employees with a 10-minute rest period for every four hours worked, or major fraction thereof, based on the total numbers of hours worked in a workday. The lactation break is, if possible, to run concurrently with that rest period, which must be counted as paid time worked.
Lactation time that does not run concurrently with a rest period mandated by the applicable IWC order may be unpaid. (Of course, employers should not deduct lactation time from exempt employees' salaries because doing so would likely defeat the salary requirement of the overtime exemption.)
Lactation break time need not be provided if to do so would seriously disrupt the employer's operations. "Seriously disrupt" is not defined.
Employers should do two things to deal with these new requirements.
First, they should update their employee handbooks to include a lactation-accommodation policy; a sample policy appears below.
Second, they should determine whether, with reasonable efforts, they can provide a private place to an employee wishing to express breast milk.
Whether an agricultural employer with a field employee who wishes to express milk would be required to provide her with a private place (that is not a toilet stall) in the field is an open question. Even if not, however, such an employer should consider offering such an employee with transport to suitable private place.
Until the issue is considered in a reported judicial opinion or at least until the Labor Commissioner has issued an advice letter on it, it may be wise to accommodate such an employee in this way. Doing so may help reduce one's exposure to liability (and the legal expense associated with it) for violating the law, which imposes a civil penalty of $100 per violation.
Here is a sample employee handbook policy on lactation accommodation:
The company provides a reasonable amount of break time to accommodate an employee wishing to express breast milk for her infant child.
If possible, the break time is to run concurrently with the rest period required by the applicable Industrial Welfare Commission order. Break time beyond that rest period for that purpose is unpaid. Further, break time beyond that rest period is not provided if to do so would seriously disrupt company operations.
Moreover, the company makes reasonable efforts to provide such an employee with a private place for that purpose.
An employee should direct questions about this policy to her supervisor or an office employee.
"Reducing Pesticide Risk" Training Program
The Statewide Integrated Pest Management Project at the University of California, Davis, has produced the second in a series of pesticide-training programs. It is titled Reducing Pesticide Risk: An Interactive Program for Training Pesticide Handlers.
The first in the series is titled WPS Training for Fieldworkers: Teaching Workers How to Protect Themselves from Pesticide Hazards in the Workplace.
Both programs include an instructor's manual to be used with an accompanying video. The manuals provide an instructor with ideas and examples of interactive activities to increase comprehension of the pesticide-related workplace subjects and ways workers can avoid pesticide hazards.
The videos and accompanying activities cover every point that must be addressed in Worker Protection Standard (WPS) training for fieldworkers and handlers.
Each program set costs $49. Order them from FELS, 2300 River Plaza Drive, Sacramento, CA 95833. Include in your payment $5 per set for handling plus 7.75% California sales tax.
Controlling WC Claims: Early Return to Work
One of the problems FELS subscribers express most often when they call the FELS "Employers' Hotline" for help is dealing with injured employees.
The solution to the problem starts before the injury occurs. Preparing now can pay big dividends when an employee is injured.
This article reviews the measures employers should have in place to help them deal with employee injuries.
Written Policy: The first step is to develop a company policy that covers at least these items:
1. All work-related injuries must be reported as soon as possible. Failure to report an injury promptly will result in disciplinary action.
2. Describe the responsibilities of supervisors, injured employees and administrative personnel.
3. Outline the company's "Early Return To Work" procedures.
A sample policy appears later in this article.
While many companies are reluctant to implement an "Early Return to Work" (ERTW) program, it is an effective way to control workers' compensation claims. And the more medical costs and workers' compensation rates rise, the more important it is to control workers' compensation claims.
Further, an ERTW program can reduce your exposure to claims under Labor Code section 132a, which prohibits workers' compensation discrimination.
And what better way to monitor injured employees than to have them back on the job? At least you know they won't be watching attorney ads on television telling them they can "strike it rich" at your expense.
Here are some other advantages of an ERTW program:
Reduce compensation premiums and claims costs
Avoid replacement and training costs
Avoid expensive litigation and discourage fraudulent claims
Improve employee morale and foster teamwork
The four steps of an ERTW program are:
1. Identify key employees who should be involved in developing or improving your ERTW program.
2. Develop an ERTW program policy. Once established, disseminate the written policy. Instruct your employees and all those involved how the program is to be implemented.
3. Implement your program. Communicate with the treating physician and determine what work the employee can perform. The primary tool for this determination is a job description. (A sample "Physical Job Description" is on page 6 of this issue.) Create temporary jobs to bring employees back to work as early as possible. Follow the employee's progress closely until he returns to regular duty. (Note: During the first 30 days after the injury is reported to the employer, an employee generally must be treated by a physician selected by the employer. Thereafter, the employee can have another physician treat the injury. So, to avoid complications resulting from treatment by another physician, the employee needs to be fully recovered within the first 30 days of treatment.)
4. Evaluate the success of your program, and make modifications or improvements as necessary.
Note: Employers regularly employing 50 or more employees are covered by the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). To be covered, an employee must have worked at least 1,250 hours during the 12 months before leave is requested.
A covered employer may not discriminate against a covered employee for taking an leave of absence for any of several reasons, including due to the employee's serious health condition resulting from an on-the-job injury. The leave of absence may be for up to 12 weeks.
If, as part of the workers’ compensation claim process, the employee is offered a medically-approved “light duty” assignment, the employee may decline the assignment offer and instead choose to begin or continue to exercise FMLA or CFRA rights and remain on leave for the remaining portion of the employee’s leave entitlement.
Develop Job Descriptions: An essential element of an ERTW program is giving your designated physician a description of the requirements of your employee's job. This information helps the physician in determining the tasks an injured employee can do while recuperating. A sample form for this purpose, titled "Physical Job Description," appears on page 6 of this issue.
The Division of Workers' Compensation has developed Form RU-91, "Description of Job Duties." This form is used for an employee who has been temporarily totally disabled for at least 90 days. However, employers can use it as a guide in assessing the physical requirements and arduousness of jobs. The treating physician, in turn, can use that assessment in prescribing return-to-work limitations. A copy of Form RU-91 is available at http://www.dir.ca.gov/dwc/ RU91.pdf.
Employees should be encouraged (if not required) to participate in the development of the "Physical Job Description" form.
Develop Injury/Illness Procedures: Your procedures describe what is done when an employee incurs an injury or illness. It also assigns responsibilities to supervisors and administrative personnel. A sample is provided later in this article.
Identify and Select a Health-Care Provider: It is important to identify a local clinic or physician competent in treating industrial injuries and illnesses. The health-care provider must be contacted before an injury so they can anticipate your needs and be aware of the types of jobs your employees perform. A close relationship with the health-care provider can have significant and long-term effects on medical costs for treatment, potential entitlement to vocational rehabilitation services, and the degree of permanent disability.
If the physician applies the procedures for establishing his or her status as Primary Treating Physician (PTP), in many cases, the employer can retain that PTP status beyond the first 30 days of the injury. Workers' compensation regulations allow a PTP to continue beyond 30 days where the PTP determines the injured employee’s condition is "permanent and stationary" and does not require further treatment.
A good place to start looking for a health care provider is from your workers' compensation carrier. The carrier has information on the treatment history of health-care providers and can advise you on whom to use and whom to avoid.
It's extremely important to notify your employees of your designated health-care provider. By law, you must post a workers' compensation notice that includes, among other required information, a place to announce your designated health-care provider.
Also, by law you must provide new employees with a workers' compensation pamphlet. Both items are available from your workers' compensation carrier. If you don't comply with those notice requirements, an injured employee may be able to seek treatment from a health-care provider other than the one you designated. Guess what type of physician the employee will choose?
Promote Ongoing Injury/Illness Prevention: The best way to limit workers' compensation claims is avoiding accidents and illnesses altogether. An effective written injury and illness prevention program goes a long way in this regard.
Sample Injury/Illness Reporting and Early Return to Work Program Policy
Injury/Illness Reporting: An employee must immediately report to a company supervisor any work-related injury or illness, no matter how slight it is. The supervisor will ensure the employee receives appropriate medical attention from the company's designated medical provider.
An employee who cannot report to a supervisor an injury or illness requiring medical attention must go to the company's designated medical provider. The name and address of that provider is posted on company bulletin boards. Unless the employee has notified the company in writing before incurring an injury or illness that he or she has a personal physician, the company will not pay for services rendered by another medical provider.
An employee who does not promptly report an injury or illness is subject to severe disciplinary action.
Reporting a Fraudulent Injury/ Illness: Anyone who knowingly makes a false or fraudulent representation (claim of an injury or illness) to obtain workers' compensation benefits is guilty of fraud. A person found guilty of this offense can be imprisoned in state prison for up to five years, be required to pay a fine of up to $50,000 and/or be required to pay for any medical evaluation or treatment services. (California Insurance Code section 1871.4).
The company thoroughly investigates all injuries and illnesses. The company reports to its workers' compensation carrier for further investigation and/or prosecution any injury/illness it believes is fraudulent.
Early Return to Work Program: The company is committed to returning injured employees to modified or alternative work as soon after an injury as possible. Temporarily modifying an injured employee's job or providing the employee with an alternative position does this. The employee's medical condition and any limitations or restrictions imposed by the treating physician are given priority consideration when modified/alternative positions are being identified.
This program applies to ALL employees.
The employee and treating physician are to discuss with each other the employee's physical restrictions and limitations. Every employee, unless hospitalized or not ordered to Early Return to Work, must return to the work place promptly (i.e., the same day, if possible, or the next business day if not) after his or her consultation with the treating physician to report the physician's findings and to discuss modified or alternative work. This enables appropriate company personnel to be aware of the employee's condition. Employees offered modified or alternative work must approve a "Temporary Job Offer." Employees with an injury must report to the work place after each medical or therapy visit to discuss the employee's recovery.
Upon Early Return to Work, the employee must work within the physical limitations imposed by the physician. The employee is to perform only those duties that are assigned to him or her. An employee must immediately notify the employee's supervisor of any difficulty in performing those duties. The employee must also notify the employee's supervisor before any medical or therapy appointments. Time off is allowed for appointments. The employee must keep the employee's supervisor informed of the recovery process and the ability to perform modified or alternative work.
Sample Injury/Illness Procedures
The Personnel Department's Responsibilities: The Personnel Department coordinates all aspects related to an employee's work-related injury while the employee is recuperating from it. The Personnel Department acts as a liaison between the company, the injured worker, the treating physician, and the company's workers' compensation insurance carrier. The Personnel Department is to do the following:
1. Call the health-care provider while the employee is in transit to alert the doctor of the specifics of the injury.
2. Develop with the help of the injured employee's supervisor a "Physical Job Description" for the employee's job. The Physical Job Description shall be given to the health care provider for use in determining appropriate modified or alternative work.
3. If the treatment provided was not first-aid, make sure the health-care provider completes a Doctor's First Report of Injury and a Notice of Designation as Primary Treating Physician (on physician's letterhead). Ensure that the injured employee acknowledges receipt of the Notice and of the Doctor's First Report by signing the documents.
4. Contact the health care provider upon completion of the examination/treatment to determine any temporary work restrictions and the date of any follow-up exam.
5. If the treatment provided was not first-aid, ensure that the health-care provider sends the Doctor's First Report of Injury and Notice of Designation of Primary Treating Provider to the company's workers' compensation representative.
6. Within eight hours after learning of it, report to Cal/OSHA an injury/illness resulting in the employee’s hospitalization for more than 24 hours, dismemberment, or death.
7. Within 24 hours after learning of an injury, the Personnel Department is to give the injured employee a blank Claim for Workers' Compensation Insurance form and a Workers' Compensation Appeals Board pamphlet (or an equivalent WCAB pamphlet provided by the company's workers' compensation carrier) that describes the employee's rights under workers' compensation.
8. Conduct an immediate investigation of the incident that caused the injury, including getting written statements from witnesses. Witnesses are to sign the statements under penalty of perjury. Provide the health-care provider with faxed copies of the statements. (A sample Witness Incident Report Form is provided below.)
The Personnel Department is to report to the company's workers' compensation carrier for further investigation and/or prosecution any injury/illness it believes is fraudulent.
If the injured employee did not timely report the injury, or if the injury was caused by the employee’s negligence or safety-rule violation, the Personnel Department is to determine if the employee should be discharged, suspended or otherwise disciplined. If such action is warranted, the Personnel Department is to prepare a written discharge, suspension or other disciplinary notice and give it to the supervisor for execution. The supervisor is to take the notice to the employee and have the employee acknowledge its receipt by signing it.
9. In all modified or alternative work cases, the Personnel Department is to consult with the injured employee's supervisor to prepare the conditions of a "Temporary Job Offer." (See Sample Temporary Job Offer Letter at the end of this article.) The Temporary Job Offer may be given to the supervisor, who is to ensure it is reviewed and signed by the injured employee, or mailed to the employee by certified mail. The Personnel Department is to monitor the modified or alternative work and gather any additional information that may be needed to properly handle Early Return to Work efforts.
10. Complete Cal/OSHA Form 301, and transfer the information to Cal/OSHA Form 300 within five days of learning of the injury or illness.
Supervisor's Responsibilities: In the event of an injury, the injured employee's supervisor is to do the following:
1. Ensure the employee receives first aid or proper medical treatment from the company's selected medical provider. If possible, the supervisor is to accompany the employee to the medical provider.
2. The attending physician is to be notified on the first visit that the company has an Early Return to Work program and that modified or alternative work will be provided.
3. If the employee is hospitalized or cannot work, the supervisor is to call or visit the employee at least weekly to ensure the employee is receiving disability payments and adequate care. The supervisor, without invading the employee's privacy, is to evaluate the employee's adherence to the health-care provider's instructions.
4. The supervisor is to work closely with the Personnel Department to coordinate Early Return to Work efforts and is responsible for re-introducing the employee into the work place in the modified or alternative position. The supervisor is to ensure the employee receives necessary assistance from co-workers and adheres to the work restrictions imposed on the employee.
5. The supervisor is to ensure that the injured employee attends all follow-up treatment and/or therapy sessions prescribed by the health-care provider, including arranging, if necessary, for transportation to them. The supervisor must immediately inform the Personnel Department of a failure by the employee to attend such a session.
6. The supervisor is to monitor the employee’s transition into full-duty work.
Sample Witness Incident Report Form
I,
Yo, ,
(Witness' Name) (Witness' Title)
make the following declaration:
hago la siguiente declaración:
about the incident on
sobre el incidente del
(Incident Date/Fecha del Incidente)
at approximately
aproximadamente a las .
(Incident Time/Hora del Incidente)
Location of incident
Localidad del incidente:
Location of witness at time of incident/ Localidad de testigos al tiempo del incidente:
Witness observations/observaciones de testigos:
1. Describe what the employee(s) was/were doing when the incident occurred, as well as the tools, equipment, or material the employee(s) was/were using/Describa que es lo que estaba(n) haciendo el/los empleado(s) cuando ocurrió el incidente, así también como las herramientas, equipo, o material que el/los empleado(s) esta(n) usando:
2. Describe what happened (How did the incident occur?)/describa lo que pasó (¿Cómo ocurrió el incidente?):
3. Describe the object(s) or substance(s) that harmed the employee(s)/describa el/los objecto(s) o substancia(s) que dañaron al/los empleado(s):
4. Who
or what caused the incident?/¿Quién o que causó el incidente?
I have read the above statement and declare under penalty of perjury that it is true and correct to the best of my knowledge and belief.
He leído esta declaración y declaro bajo pena de juramento que es verdadera y correcta a mi mejor conocimiento y creencia.
Executed on
Ejecutada en
at
a las .
Signature
Firma
Sample Temporary Job Offer Letter
Employee Name
Date:
Address
City, State, Zip
Dear Employee Name:
Your attending physician, ,
has released you for modified work. We have found for you a temporary position that your physician believes you can perform. The availability of this position will be periodically reviewed.
The job is
Your physician has placed these restrictions on you:
While working in this position, you will receive wages of $ per (hour/week/two weeks/half-month). Our workers' compensation carrier will prorate, subject to statutory limits, your workers' compensation benefits if this wage rate is less than your regular wage rate.
The company request that you report to work on:
Date:
Hours per day/week:
Time:
Duration of job:
Report to:
Phone:
Location:
If you receive this letter after the report to work date, you have 24 hours to contact:
Sincerely,
Company Representative
I have read and understand the above information. I accept this job as offered.
___ Yes ___ No
Employee’s SignatureDate
(Note: Send this letter by certified and regular mail, or have the employee come to the office to sign and date it.)
(Portions of this article were provided by Charlene L. Baillie, Esq., a certified specialist in Workers’ Compensation.)
CRLA Continues Wage-and-Hour Litigation
As many agricultural employers know, California Rural Legal Assistance (CRLA) has over the past year or so filed lawsuits in an effort to turn technical wage-and-hour violations, such as failures to provide proper rest or meal breaks and failures to issue proper wage statements, into quasi-class-action claims on behalf of all of an employer’s employees.
The lawsuits usually also contend that by committing the wage-and-hour violations, employers are engaging in unfair business practices, and therefore, the suits are being brought on behalf of the “general public” as well. By making the unfair business practices claim, CRLA seeks to avail itself of a longer statute of limitations (4 years as opposed to 3), as well as potential statutory penalties and attorneys’ fees.
Now is a good time for employers to engage in a self-audit of wage-and-hour issues, and to eliminate any technical violations, such as incomplete wage statements, improper payment of overtime, and improper rest and meal periods.
CRLA is also attempting to create new law with some of its lawsuits, particularly in the area of alleged joint employers. For example, in one case, CRLA sued a strawberry grower who allegedly could not pay his employees and who failed to issue properly-itemized wage statements.
In that case, CRLA is also arguing that three different strawberry marketers and a cannery are joint employers of the grower’s employees for purposes of the wage-and-hour violations.
If the CRLA convinces the court that a commissioned sales agent, who has no interest in the crops, the land, or any of the equipment necessary for farming, is a joint employer with a grower, the potential scope of joint employers would become virtually limitless.
Two of the marketing agents have filed motions in the trial court to have the claims against them thrown out. Expect the side the loses at the trial level to appeal.
In the meantime, keep in mind that the joint-employer situation, in its most simple terms, can be seen as a balancing act, with items showing control over the employees stacked on one side of the scale, and items showing employee independence stacked on the other side. The more control a third party has over the employees, the more likely the third party can be found to be a joint employer.
(Source: Patrick S. Moody, Barsamian, Saqui & Moody)
ALRB Now Has Only Three Members
With the expiration on Dec. 31 of former member Ivonne Ramos-Richardson's term on the Agricultural Labor Relations Board (ALRB), the number of board members has fallen to three.
The act authorizing the board provides for five members. This is not the first time it has operated short-handed, however.
Richardson, the only Republican on the board, was first appointed in 1987 by then-Gov. George Deukmejian and re-appointed in 1992 and 1997 by then-Gov. Pete Wilson.
The three remaining members all were appointed by Gov. Gray Davis in April 1999. Chairman Genevieve Shiroma was re-appointed in 2001, because her first appointment filled an unexpired term. Her current term expires in 2006. Member Bert Mason's term expires in 2003. Member Gloria Barrio's term expires in 2004.
(Source: Ag Accent, published by the Agricultural Action Committee)
ALRB Re-Aligns Coastal Area, Oxnard Office Staffing
Farm-labor issues in the Oxnard and Santa Maria areas have been re-assigned by the ALRB to its Visalia regional office.
Those areas in recent years had been the responsibility of the El Centro ALRB office. The field examiner assigned to them moved from Oxnard to Visalia, so the re-alignment with the Visalia office maintains his familiarity with the region and the people who influence labor relations.
The South Central Coast was originally served by the ALRB’s Salinas office. Jurisdiction later moved to the El Centro office, and then to the Visalia office.
With two attorneys, the staffing of the Visalia office is now greater than that of the El Centro office, so the move is justifiable from that standpoint.
The current staffing goal of the ALRB's sub-regional office in Oxnard is one day a week. The hiring freeze imposed on all agencies of the state government has been especially severe for the ALRB.
If the freeze lifted, the goal for the Oxnard office would be daily operation. No elections are anticipated there, nor have any been handled there, but it has served as a conduit for several unfair labor practice charges and complaints.
(Source: Ag Accent, published by the Agricultural Action Committee)
The ALRB conducted only seven farm worker elections in 2001, and only four of them were triggered by petitions filed by the United Farm Workers (UFW) union.
Two resulted from petitions filed by the Dairy Employees union, and one by the Fresh Fruit and Vegetable Workers union.
Of the four elections called for by the UFW, the union won two and lost two. The UFW gained representation of only 77 in the two elections it won.
(Source: Ag Accent, published by the Agricultural Action Committee)
No Back Pay for Undocumented Aliens
A recent decision by the U.S. Supreme Court may mark a change in how courts determine relief for workers illegally working in the United States. In Hoffman Plastic Compounds v. NLRB, the court held that “awarding back pay to illegal aliens runs counter to policies underlying federal immigration laws."
The Court overturned a policy of the National Labor Relations Board, which had been to award back pay to undocumented workers since 1995. The Court noted that undocumented workers are protected by federal laws but that protection does not entitled them to back pay for wages that could not have been earned and for a job obtained in the first instant by a criminal fraud.
Miles Locker, an attorney with the California Labor Commissioner's office, said the ruling will not limit the state's ability to collect for undocumented aliens wages for work that was performed, such as where an employer paid them less than the minimum wage. However, he added, the state can no longer protect workers fired for complaining about such wage violations or other abuses.
(Source: Wayne Hersh [whersh@oc.bergerkahn.com], law firm of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone)
| Title | |
| Job Description | |
| Typical Work Conditions | |
| Equipment Used | |
| Knowledge/Training | |
| Essential Tasks | |
Physical Demands Summary |
|||||||||
Activity |
Frequency |
Activity |
Frequency |
||||||
| Lift/Carry: | N |
O |
F |
C |
N |
O |
F |
C |
|
| 10 Lbs. or less | Twist/Turn | ||||||||
| 11-20 Lbs. | Climb | ||||||||
| 21-50 Lbs. | Crawl | ||||||||
| 51-100 Lbs. | Reach Above Shoulder | ||||||||
| 100+ Lbs. | Handling/Fingering | ||||||||
| Stand | |||||||||
| Push/Pull: | Walk | ||||||||
| 12 Lbs. or less | Sit | ||||||||
| 13-25 Lbs. | |||||||||
| 26-40 Lbs. | |||||||||
| 41-100 Lbs. | Drive | ||||||||
| Automatic | |||||||||
| Standard | |||||||||
| Bend | |||||||||
| Squat/Kneel | Type/Keyboard | ||||||||
KEY: N = Never
O = Occasional; 1-33% of time
F = Frequent; 34-66% of time
C = Constant; 67-100% of time