CSIA/ESICA FALL CONFERENCE Issues Arising From Workplace Accidents From the Employer’s Perspective Nashville TN September 8, 2007 Gary W. Auman Dunlevey, Mahan & Furry 110 N. Main St., Ste Dayton OH

CONCERNS Workers’ Compensation? Intentional Tort? OSHA Inspection? Cost of accident (indirect)? legal costs loss of efficiency loss of quality

cost of finding a replacement cost of accident investigation lost orders Possible third-party issues? W/C discrimination OSHA 11(c)? FMLA? ADA?

WORKERS’ COMPENSATION Employer must consider the impact of having the claim allowed. Effect on the employer’s EMR. If the EMR goes above 1.0, will that affect employer’s relationships in its business?

Is injury an OSHA recordable? Will it affect the employer’s DART rate? Again, how will that affect business relationships?

OSHA Inspection may result from report of catastrophic accident complaint by employee complaint by union or third party media report national or local emphasis

OSHA INSPECTION Minimum one day Ties up workforce Penalties Abatement Follow-up inspections

OSHA CITATIONS Willful$5000-$70,000 Serious$0 - $7000 Other Than Serious$0 - $7000 De Minimus$0 Repeat$0 - $70,000 Failure to Abate$0 - $7000/day (practicalities)

Willful citation connected to a fatality may result in a referral to the Department of Justice for possible criminal indictment. If convicted – additional penalty of up to $250,000 plus 6 months in prison.

W/C DISCRIMINATION Many employers look at an employee with a workers’ comp. claim as having super seniority. They are hesitant to take any disciplinary action, for any reason, against the employee for a long time – even after RTW.

OSHA DISCRIMINATION Section 11(c) of the Act prohibits taking any adverse employment action against any employee who files an OSHA complaint, works with a CSHO during an inspection, or testifies in any enforcement proceeding. In addition to remedies similar to ORC § , a penalty may attach to such a violation.

FMLA Applies to employers with 50 or more employees for each working day during each of 20 weeks or more during the current or preceding calendar year. 75 mile rule

EMPLOYEE COVERAGE Must have been employed for at least 12 months and for at least 1250 hours during the previous 12-month period. Serious health condition – one which requires inpatient care or continuing treatment by a health care provider.

FMLA LEAVE May run concurrently with TTD. If this is to be done, the employer should notify the employee in writing. Employee must be returned to the same or equivalent position as before the leave.

ADA Applies to employers with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year. Applies to qualified employees with impairments who, with or without reasonable accommodation, can perform the essential function of their employment position.

IMPAIRMENT Substantially limits a major life activity Unable to perform such activity. Restricted in either the manner or duration in which he/she can perform the activity.

Major life activity includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working

RETURN TO WORK WITH RESTRICTIONS Employer may not wish to permit employee to return to work without a full release. May not be possible.

Employer must ask – if non-essential functions of former job are eliminated, could the employee perform the job with his/her restrictions? Still, accommodation may not be required if such accommodation would pose a direct safety threat to the employee or others.