Uncategorized

Time Off or Time-Loss?

Our clients often come to us with issues relating to their employment that are not directly related to their work injury or workers’ compensation claim. Given how entwined a work injury can be with employment-related issues, it can be helpful to have a general understanding of both legal areas.

One issue that comes up quite frequently is whether an Employer can require our clients to use up their vacation, sick-leave, and/or PTO for time missed from work when the reason they are missing work is a work-related injury. The short answer is yes. At present, there is no law that prevents an Employer from forcing injured workers to use up their vacation or PTO while they are unable to work due to their injury. However, it could be unlawful for an Employer to create “special rules” that apply to only one employee or only to employees with L&I claims. If they do so, it is possible they are violating other laws that prohibit discrimination of disabled persons and/or retaliation against employees who have filed L&I claims. Regardless, even if such a policy exists, the Employer cannot prevent injured workers from obtaining monetary workers’ compensation benefits if they would otherwise be entitled to it. If an injured worker is entitled to time-loss or loss of earning power benefits, then it does not matter that they are also receiving PTO or vacation benefits.

Another issue that we may see more of given the recent passage (and soon to be enacted) laws relating to Paid Sick Leave are questions about whether injured workers can earn paid sick leave if they are not working full time or full duty. Depending on what type of employee an injured worker is (salaried or hourly), they may have the right to earn paid sick leave for each hour worked. An Employer should not be able to deny accrual of paid sick leave simply because an injured worker is unable to work full-time or full-duty. Additionally, an Employer cannot prevent an injured worker from using their paid sick leave while the injured worker is receiving benefits under their claim so long as the basis for using it would otherwise be appropriate.

Ultimately, these are difficult questions to answer. The specific circumstances of each case needs to be evaluated to arrive at an answer and may require the advice of both an attorney who focuses on workers’ compensation as well as one who focuses on employment law. If you have questions, please feel free to contact me to start the discussion.

Photo by bunkosquad on Foter.com / CC BY-NC-ND

Hanford Chemical Exposure

Hanford Vapor Litigation Resolved through Settlement

HANFORD CHALLENGE/UA LOCAL 598 DECLARE VICTORY FOR HANFORD WORKERS IN SETTLEMENT OF TOXIC VAPOR LITIGATION

September 19, 2018

Seattle, WA: Hanford Challenge, UA Local 598, and the WA State Office of the Attorney General today announced a settlement in a hotly-contested case involving the safety of workers at the Hanford nuclear site in southeastern Washington State.

United Association of Steamfitters and Plumbers (UA) Local 598 and Hanford Challenge were co-plaintiffs with Washington State Attorney General Bob Ferguson (Complainants) against the US Department of Energy (DOE) and Hanford contractor Washington River Protection Solutions (WRPS) (Defendants) in an action brought in federal court in September 2015.

“Under this Agreement, the cycle of exposure and illness due to unprotected chemical vapor exposures is finally being addressed and, hopefully, resolved. The parties have agreed to an enforceable settlement that requires specific actions to solve the vapor exposure issue at Hanford throughout the rest of the cleanup,” said Executive Director Tom Carpenter, of Hanford Challenge.

“This is a major victory for the brave men and women working to clean up the Hanford Nuclear Reservation,” WA Attorney General Bob Ferguson said. “This is an historic outcome, but let’s be honest — it should not have required a lawsuit to get the federal government to do the right thing.” 

UA Local 598’s Business Manager Randall Walli stated, “This represents Local 598’s values and commitment to its members and all working families that ensure the success of our National mission. While the future of Hanford will continue to demand our full diligence, with all its complexities and challenges, this settlement represents a positive step in the right direction. Ensuring adequate protection for the workforce and a commitment to the development and implementation of new technologies that will ultimately lead to a safe and more productive future. Local 598 will continue to stand with all the men and women of Hanford, our Nuclear Veterans and their families.”

Complainants in the case brought forward evidence that Hanford workers were not being protected from exposure to toxic chemical vapors coming from underground high-level nuclear waste tanks, and that workers suffered serious illnesses and injuries as a result. A federal judge in Spokane stated in a November 2016 ruling that “vapor exposures have occurred” and “employees have experienced serious vapor-related illnesses.” Importantly, the judge also found that “vapors emitted from Hanford tank waste fall within RCRA,” and are therefore subject to regulation under the hazardous waste law.

 The settlement announced today resolves the litigation, which sought an order from a federal court to provide necessary respiratory protection and take other such measures necessary to abate an imminent endangerment to human health and safety.

“By establishing that tanks vapors are hazardous wastes, this case changed the regulatory landscape at Hanford. This settlement provides immediate protection from toxic tank vapors for Hanford workers as well as a pathway for long term controls to prevent untreated vapor releases. This is critical for protecting workers and the environment,” said Meredith Crafton, attorney for Hanford Challenge and Local 598 from the law firm of Smith & Lowney, PLLC.

The Agreement provides for more monitoring, more transparency, a commitment to capture and treat toxic chemical vapors, enhanced worker protections, and litigation costs. The terms of the Agreement are enforceable in federal court.

The legal team of Smith & Lowney in Seattle, Terrell Marshall Law Group, also from Seattle, and the non-profit law firm Public Justice in DC, provided the representation for Hanford Challenge and UA Local 598. Washington Attorney General Bob Ferguson also brought a complaint, and entered into a joint prosecution agreement with Hanford Challenge and the union.

“The settlement announced today shows the power of workers banding together and the effectiveness and importance of partnerships between unions, advocates and tenacious public servants like Washington’s Attorney General,” said Jim Hecker, Director of the Environmental Enforcement Project at Public Justice. “It also underscores the importance of the Resource Conservation and Recovery Act as a powerful tool that helps workers and communities stand up for themselves. When toxic chemicals are released, it is usually workers who are in closest proximity to the poisons, and therefore get the highest exposures. Today’s announcement means that those most susceptible to harm will finally receive the protection they deserve.”

———————————-

Key terms of the Agreement include —

More Monitoring –

  • DOE and the tank farm contractor will complete design for the optimal components and configuration of Vapor Monitoring and Detection System for stack monitoring in the A and AX Farms by December 31, 2018 and

  • installation of Public Address system in the tank farms in order to provide warnings to workers about hazardous conditions.

More Transparency –

  • Development of a Data Access and Visualization (“DAV”) platform for sharing monitoring and sampling data on a website;

  • Within various time frames, the tank farm contractor will post on a publicly available website the following –

    • a monthly list of Problem Evaluation Requests regarding AOP-15 events that occur in the future;

    • the specific nature of the tank farm waste worker medical surveillance program (routine occupational tests and their purpose) to be updated annually if there are changes to the program;

    • a thorough explanation of the current policy concerning return to work following a reported exposure;

    • information regarding workers potential ability to participate in the DOE Former Worker Medical Screening Program;

    • the Health Process Plan entitled “PNNL-25791, Hanford Tank Farm Exposure and Risk Assessment Plan;” and

    • within two weeks after completion of the AOP-15 Event Investigation Report:  

      • procedures for determining appropriate personal protective equipment;

      • procedures for alternative respiratory protection assessments;

      • procedures for assessing worker hazards (including vapor risks);

      • and tank vapor information sheets (“TVISs”) for the Chemicals of Potential Concern in the tank farms.

  • Upon request from a tank farm worker, DOE and WRPS will timely provide applicable Tank Vapor Information System (TVIS) data and the worker’s personal exposure data, if any, regarding a tank farm-related vapor event.

Capturing and Treating Vapors –

  • Testing of an engineered system designed to capture and thermally treat tank vapors in a manner that destroys or captures harmful chemicals and metals;

  • Timetable for testing milestones, which, if successful, results in the installation of the system on certain Hanford tanks and/or tank farms; and

  • Agreement by DOE and the tank contractor to accept and respond to technical input from plaintiffs’ expert.

Worker Protections Enhanced –

  • Currently, the Hanford contractor has an agreement with the Hanford Atomic Metal Trades Council that requires tank farm workers to use:  

    • supplied air in single-shell tank farms at all times.

    • supplied air during waste disturbing activities in double-shell tanks.

    • approved cartridge respirators in routine double-shell tank operations.

  • As part of the settlement, Hanford agrees to maintain this Agreement to protect tank farm worker health and safety, no matter who the contractor turns out to be in the future.

  • The tank farm contractor will accept and consider input from plaintiffs’ technical expert on the proposed use of cartridge respirators.

  • Enhanced pre-job safety reviews that consider the risk of vapor exposures as a factor.

  • Installation of an active exhaust ventilation system in A Farm, after which the entire A Farm complex can be actively ventilated, by December 31, 2019.

  • Hanford occupational medical services provider will comprehensively review medical data that are available for tank farm workers and provide expert advice on collection, analysis, and interpretation of these data and their potential to help assess any relationship between medical findings, reported health effects, and/or exposures.

  • Within 30 days DOE will direct the Hanford occupational medical services provider to inform workers of their rights to seek medical diagnoses from a qualified medical provider after workers report to the Hanford occupational medical services provider for symptoms possibly related to vapor exposure. 

  • After the Hanford occupational medical services provider informs DOE of the anticipated completion date for the Medical Data Study, DOE will inform Plaintiffs of that date. 

  • Within 30 days DOE will direct the Hanford occupational medical services provider that, upon request from a tank farm worker, the provider will timely provide its medical data related to the worker.

Litigation Costs –

  • DOE will pay the amount of $416,250.00 to counsel for Hanford Challenge/Local 598 and will pay to the State of Washington Office of the Attorney General the amount of $508,750.00.

  • The Attorney General has agreed to hire experts (using DOE funds) to continue monitoring and advisory functions as specified in the Agreement.

Enforceable Agreement –

  • The agreement is a settlement contract. The federal case will remain open, but be placed on “administrative stay.” As outlined in the agreement, the settlement is enforceable in court should DOE or the tank farm contractor fail to meet a deadline or fail to perform on an agreed-upon term. There are requirements on notice and mediation prior to going back to court.

  • The contract survives the current tank farm contractor, WRPS, insofar as a provision in the contract requires DOE to put these obligations on any new contractor.

For pdf of press release, click here.

For Settlement Agreement, click here.

For more on vapor case and history, click here.

 

Worker Safety

WA State Safety and Health Standards for Beryllium Updated

Chronic Beryllium Disease (CBD), sometimes called berylliosis, is an immunological lung disease caused by exposure to beryllium via inhalation of airborne beryllium or skin contact with beryllium-containing dust, fume, mist, or solutions. CBD can progress to a serious and life-threatening disease if left undiagnosed and beryllium exposure continues.

Washington State has completed rulemaking to to add Chapter 296-850 WAC Beryllium as a new chapter to Title 296 WAC of the Department of Labor and Industries. This action was taken in response to the Occupational Safety and Health Administration’s (OSHA) final rule on Beryllium in the General Labor, Construction and Maritime areas if industry.

The Department of Labor and Industries will have one Beryllium rule to include all industries listed, instead of separate rules for each industry as OSHA has done. This rule will limit worker exposure (Personal Exposure Limits, or PELs) to beryllium and beryllium compounds, which can cause the debilitating lung disease known as chronic beryllium disease (CBD) and lung cancer. This rule mirrors OSHAs final rule, with minor differences in the Definitions, Medical Removal, and Medical Surveillance sections that allow for implementation of the rule to be consistent with existing requirements in Title 51 RCW. The PEL tables in WAC 296-307-62625 and WAC 296-841-20025 were updated to reflect OSHAs reduced Beryllium PELs.

All obligations of this standard commence and become enforceable on December 12, 2018, except for the following compliance dates: Change rooms and showers required by WAC 296-850-145 must be provided by March 11, 2019; and Engineering controls required by WAC 296-850-130 Methods of Compliance must be implemented by March 10, 2020. The changes were adopted 8/21/2018 and will be effective on 12/12/2018.

Find more information about these rule changes on the Department of Labor and Industries website.

Photo by Neil. Moralee on Foter.com / CC BY-NC-ND

 

Employer Misconduct

Little Caesars Fined More Than $40,000 for Teen Worker Violations in WA

A Little Caesars Pizza restaurant franchise faces $42,000 in fines for youth labor law violations, including allowing teenagers to work too many hours without a rest period on more than 100 separate occasions.

NW Caesars 1 LLC is appealing the citation and fine, which is one of the largest in recent years that the Washington State Department of Labor & Industries (L&I) has issued for a workplace violation involving youth. A hearing date for the appeal will be set in November. 

“This is important because meal and rest breaks for teens are mandatory,” said Josie Bryan, youth employment specialist for L&I. “Not only that, but breaks can help prevent injuries on the job.”

L&I’s inspection focused on two of the franchise’s restaurants in University Place — one at 5502 Orchard St. W., and one at 7305 40th St. W.

The agency found there were more than a 100 separate instances of missed rest periods. There were also violations involving minors working during school hours, working past 10 p.m. on a school night, and working with equipment that teens under 18 are not allowed to use.

The investigation covered the time period between December 2017 and February 2018. It was prompted by a tip to L&I that teens at one of the restaurants were disassembling and reassembling a pizza dough sheeter – a machine workers under 18 are prohibited from using. In all, the company was fined $42,050.

The Lakewood based NW Caesars 1 LLC was cited and fined by L&I for similar violations in 2015, including issues related to teen hours worked, and teen workers using prohibited equipment. L&I consulted with the company about teen workplace issues.

“The law is clear; there are only certain tasks teens can do in the workplace, depending on age,” Bryan said. “Our primary goal is to keep teen workers safe, and make sure businesses are following youth labor laws.”

More information about work requirements for teens is available at www.Lni.wa.gov/TeenWorkers, and simply clicking on “Hours of Work.” There is also information about prohibited duties and teen worker safety.

Construction Updates

Seattle, WA Colman Dock Construction Continues

Washington State Ferries is replacing the aging and seismically vulnerable parts of Colman Dock in Seattle in order to maintain its critical role as a regional multimodal transportation hub.

The Washington State Department of Transportation (WSDOT) reported that construction crews recently finished installing all of the concrete panels needed to form the flooring deck of the first section of the new main ferry terminal building at Colman Dock. Next steps include filling in the gaps between the panels to make one smooth trestle deck, this is called a “closure pour.”

This section of the new building will open in mid-2019. At that point, it will be used as the main ferry terminal facility while crews clear out and demolish the old terminal building, the one currently in use. Once the old terminal building is taken down, the remaining sections of the new terminal building will be built. The entire new terminal building and surrounding dock will open to the public in 2023.

The opening date of the new passenger-only ferry building and pier, currently under construction on the south side of Colman Dock, has moved to summer 2019 instead of this fall. The revised opening date allows the contractor to re-sequence the overall construction schedule so that WSDOT can stay on track to finish the entire Seattle Multimodal Terminal at Colman Dock Project on time.

See the WSDOT page for the Seattle Multimodal Terminal at Colman Dock Project to keep up-to-date on construction progress. View a photo gallery of this project maintained by WSDOT, too.

Photo credit: WSDOT

Uncategorized

In Honeywell Asbestos Coverage Fight, Court Won’t Change Allocation Rule

Today’s post was shared by Jon L Gelman and comes from www.law.com

Jaynee LaVecchia
Justice Jaynee LaVecchia

The New Jersey Supreme Court on Wednesday ruled that Honeywell International will not be required to contribute to damages from asbestos claims relating to brake and clutch pads from a company it purchased after insurance companies ceased writing policies that would cover asbestos-related illnesses.

The court was divided 5-1, affirmed a trial court’s ruling that Honeywell had no responsibility for pre-1987 initial exposure claims.

“Under our current law on allocation of liability among insurers, an insured is not forced to assume responsibility in that allocation during the insurance coverage block for years in which insurance coverage is not reasonably available for purchase,” said Justice Jaynee LaVecchia for the majority, citing the high court’s precedent-setting 1994 ruling in Owens-Illinois v. United Insurance.

The majority said it did not believe there was any reason to depart from that precedent.

Bendix, which was subsumed by Honeywell in later years, continued to use asbestos in its brake- and clutch-pad products until 2001, LaVecchia said.

Two insurers, Travelers and St. Paul, urged the court to recognize an equitable “exceptional circumstance” rule to depart from Owens-Illinois, and said the “coverage block” should run until the 2001 end of production of those products. Honeywell contended it had not sought coverage for a claim stemming from any post-1987 initial asbestos exposure.

“No…

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Workers' Compensation, workplace injury

Don’t Go It Alone

Today’s post comes from guest author Richard Cahill Jr., from Pasternack Tilker Ziegler Walsh Stanton & Romano.

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

Tunnel Maintenance Trucks

Big, New Seattle Tunnel Will Need Tiny Trucks to Maintain It

When a really big tunnel needs really small trucks…

Posted by WSDOT on Jul 23 2018 4:56 PM
 

When the SR 99 tunnel opens, a fleet of tiny trucks will help WSDOT crews maintain the tunnel – traveling in places most of us will never see. While you drive underneath Seattle, your car might be just a few feet above maintenance workers doing their jobs in these bright, yellow trucks.

All nine trucks are electric and will be housed in the tunnel’s north operations building where they can be recharged by simply plugging them into a standard outlet.

Bigger maintenance jobs will require bigger equipment, like bucket trucks and flatbed lift trucks. All total, more than 30 pieces of equipment will make up the tunnel maintenance fleet dedicated to traffic and maintenance inside Seattle’s newest tunnel.

The tunnel could open as soon as this fall, after an approximately three-week viaduct closure to realign SR 99 into the new tunnel.

Port of Seattle

Port of Seattle Another Step Closer to Handling the Largest Cargo Vessels in the World

The Northwest Seaport Alliance “Breakwater” Newsletter – July 2018:

Seattle Harbor deepening project approved for 57 feet

The USACE’s Commanding General signed the Chief of Engineers Report for the Seattle Harbor Navigation Improvement Project, a plan to deepen the channels leading to the container terminals in the Seattle Harbor to 57 feet.

“This project will make the Port of Seattle the deepest container port in the nation at 57 feet deep,” said Courtney Gregoire, Port of Seattle commission president and co-chair of The Northwest Seaport Alliance. “This is another step forward to making T-5 big ship ready, and able to handle the largest cargo vessels in the world. The Port of Seattle and The Northwest Seaport Alliance thank the Army Corps of Engineers for their timely completion of this study and recognition of the value the project will contribute to our nation.”

The Corps delivered its fiscal year 2018 work plan to Congress, which includes funding to initiate a feasibility study for a deepening project for the Tacoma Harbor.

Photo credit: The Northwest Seaport Alliance

Employer Fraud

Bellevue, WA Firm Barred from Public Projects; Failed to Pay $140,000 to Workers

Quality Construction has been barred from seeking contracts on public works projects after failing to pay workers more than $140,000 for their work on two elementary schools.

The Bellevue-based firm did not appeal the formal order the Washington State Department of Labor & Industries (L&I) issued recently that also suspended its contractor’s license. The investigation covered work that started in spring 2015.

“Our investigation showed Quality Construction shorted the workers on both public projects, paying them less than what they were owed,” said Jim Christensen, Prevailing Wage Program manager for L&I. “These repeated violations of state law by the company showed it wasn’t just a mistake in filing paperwork.”

Prime contractors agree to pay shorted workers.

As a result of the L&I investigation, prime contractors on both projects paid the wages Quality owed its workers. In all, more than $140,000 was paid to 27 workers.

Cornerstone General Contractors Inc., of Bothell, paid $40,500 for work on the Sunny Hills Elementary School in the Issaquah School District.

Bayley Construction, of Mercer Island, paid $102,000 for work on Seattle Public Schools’ Arbor Heights Elementary School. L&I reached an agreement late in May with Bayley to pay the wages.

“The prime contractors should get credit for stepping up and fixing the problem,” Christensen said. “It was unfortunate they were left with problems Quality created.”

Workers paid at wrong rates and records falsified

In both construction cases, the employees were doing carpentry work on the schools but were paid at lower, apprenticeship wages, even though they weren’t state-registered apprentices. The firm also falsified payroll documents relating to the work that took place, according to the investigation.

The state’s prevailing wage law, triggered when construction uses public funds, covers workers on projects such as schools, roads, and buildings. L&I enforces the law, which protects employees by setting the wages for specific work. The law ensures contractors have a level playing field when bidding on public projects.

Photo on Foter.com

Published by Causey Wright