STATEMENT BY THE AFL-CIO EXECUTIVE COUNCIL ON WORKERS' COMPENSATION Enactment of federal minimum standards for state workers' compensation programs is of major importance to American workers. We are, therefore, encouraged by the introduction in the House of the National Workers' Compensation Standards Act of 1979, H.R. 5482, which we strongly support. This legislation includes: Weekly benefits of not less than two-thirds of weekly wages, up to a maximum of not less than 200 percent of the statewide average weekly wage; Annual adjustment of benefits to reflect changes in the statewide average weekly wage: Procedures through which the Secretary of Labor may establish, with appropriate study and advice, mandatory federal standards for the compensation of victims of occupational diseases; Coverage for domestic and agricultural workers. The crucial problem of work-related, but uncompensated, occupational disease must be addressed. The incidence of occuptional disease has reached epidemic proportions in America. The U.S. Department of Labor recently reported that nearly two million workers are severely or partially disabled by work-related diseases. For example, studies demonstrate that 20-25 percent of workers with substantial exposure to asbestos die of lung cancer. Current estimates indicate that two million cancer deaths over the next 30 years will be caused by asbestos exposure. Current and projected disease and death rates from work site exposures to other carcinogens and chemical hazards are equally appalling. Yet, only 5 percent of workers severely disabled by occupational diseases receive workers' compensation benefits, and the rest are forced to largely rely on Social Security, welfare or veterans benefits. Thus, the public is paying for what is-and should be-the employer's statutory obilgation. Further, workers' compensation benefits to victims of occupational disease replace only about one-eighth of wage loss, far less than benefit levels for victims of other work injuries. Enactment of the proposed federal minimum standards bill, H.R. 5482, would be an important step in bringing equity and justice to those injured and diseased in the American workplace. In other areas involving workers' compensation programs, we urge: 1. Maintenance of current coverage and benefit levels provided workers under the Longshoremen's and Harbor Workers' Act, and initiation of congressional oversight hearings to investigate insurance practices and premium rate-making procedures. 2. Our state and local central bodies to promote adoption of exclusive state funds as an alternative to the financing of workers' compensation programs through private insurance companies, because of the excellent benefit payment and cost experience of exclusive state workers' compensation funds as compared with the record of private insurance companies. STATEMENT BY THE AFL-CIO EXECUTIVE COUNCIL ON THE ATTACK ON OSHA The Occupational Safety and Health Act of 1970 is presently being subjected to the most serious legislative attack in its history. In December 1979, Sens. Richard Schweiker (R-Pa.) and Harrison Williams (D-N.J.), introduced S. 2153, the so-called Occupational Safety and Health Improvements Act of 1980. Rather than improve worker safety and health, this bill would drastically roll back statutory protections from workplace safety hazards. This bill introduces several concepts which are antithetical to OSHA's promise of a safe and healthful workplace for every worker: It takes away the statutory right of workers to safety inspections in response to valid signed complaints. It erodes OSHA's goal of preventing injuries before they occur by classifying workplaces as eligible for safety inspection only after deaths or injuries have occurred. It incorrectly assumes there is a valid, statistical method for identifying safe workplaces which do not warrant inspection. The method chosen by this bill is incomplete, unworkable and unacceptable. The use of first injury reports as a basis for determining which workplaces are to be inspected could also result in encouraging employers to oppose legitimate workers' compensation claims. It mistakenly assumes that employer motivation to observe OSHA standards will be diminished by exemption from inspection. It places false reliance on voluntarism in compliance by eliminating or re ducing penalties for even serious violations where safety committees and consultation programs operate. But the bill has no standards to determine the effectiveness of either program or requirements that employers must correct potential hazards. The AFL-CIO vigorously opposes S. 2153. Therefore, we pledge a united and coordinated effort to defeat this bill. We urge continuing congressional oversight to strengthen and improve the Occupational Safety and Health Act of 1970-the most important legislation protecting the health and safety of workers. FACT SHEET ON THE SCHWEIKER-WILLIAMS OCCUPATIONAL SAFETY AND HEALTH IMPROVEMENTS ACT OF 1980-S. 2153 A bill to amend the Occupational Safety and Health Act of 1970-S. 2153, the OSHA Improvements Act of 1980-was introduced by Senator Schweiker and five cosponsors on December 19, 1979. The cosponsors were Senators Williams, Cranston, Church and Hatch. Sen. Nelson withdrew his sponsorship of the bill on Jan. 25, 1980. The bill would drastically reduce OSHA's authority to perform safety inspections, to assess penalties for safety violations and to respond to employee complaints. Specifically, the bill: 1. Provides that most workplaces would experience a safety inspection only after the fact of employee injury Even in particularly hazardous industries, most workplaces would not be inspected for safety hazards until after worker injuries had already occurredin most cases, not until a year after they happened. Additionally, those injuries would have to have resulted in death or lost workdays to permit inspections. For workplaces of 25 or more employees, a scale of tolerable numbers of losttime injuries is established. 2. Exempts 90 percent of businesses, regardless of size, from most OSHA safety inspections In 90 percent of workplaces, OSHA could no longer make general schedule safety inspections; investigations of accidents where only one employee was hospitalized; complaint-initiated safety inspections, other than for imminent danger and extraordinarily serious situations, where the employer had provided assurances that the hazard has been dealt with (see below); and comprehensive safety inspections (see below). In workplaces covered by the State worker compensation system where the employer had not reported in the previous year any workplace injury resulting in two or more lost workdays, OSHA would be prohibited from conducting most safety inspections. Additionally, where an employer filed an affidavit that in the preceding year there were no deaths from occupational injury and the number of lost workday injuries was within the limits of tolerance specified in the law for that size workplace, OSHA would also be prohibited from conducting most safety inspections. (This second test could be utilized by employers (a) who are not covered by State worker compensation, or (b) who reported an injury resulting in two or more lost workdays but who could qualify for an exemption by meeting the test of having had a total number of lost workday injuries within these tolerances.) 3. Takes away workers' statutory right to an OSHA inspection in response to a valid, formal complaint oj safety violation OSHA would be required to refer most formal and informal safety complaints from workers in exempt workplaces to the employer, who could prevent an inspection by giving OSHA "satisfactory assurances that appropriate action, if any," had been taken to correct the violation. Where OSHA did conduct an inspection, the employer would have had advance notice through the complaint referral process. 4. Prohibits comprehensive inspections and severely limits the scope of any OSHA inspection The scope of any OSHA inspection in an exempt workplace would be limited to the purposes of that particular inspection or investigation. It would be pro hibited to expand a permitted inspection, such as an inspection of an accident or an imminent danger situation, to a general inspection of the entire workplace or of contingent workplaces. It would also be prohibited to expand a health inspection to include inspection for safety violations. 5. Requires that certain worksites be subdivided into multiple workplaces for determining exemption from safety inspections The bill would require that "where distinctly separate activities are performed at a single physical location, each activity shall be treated as a separate workplace." Different operations in a plant could be different workplaces. Whether or not workers had complete OSHA protection would depend on the lost-time injury rates in each workplace. 6. Reduces or eliminates penalties for serious as well as other-than-serious safety violations in workplaces which had a safety advisory committee and a consultation program operate If the workplace has an advisory safety committee with employee membership and a consultation program, even when a permitted inspection was conducted, an exempt employer would receive no fines for serious and other-thanserious safety violations and a non-exempt employer would receive fines of not more than $700 for each serious violation and $300 for each other-than-serious violation. Further, if the employer can make a case that he had a "good faith" belief that the hazards pointed out by the safety advisory committee or consultant were not violations of the Act, he cannot be cited for a willful violation by OSHA. 7. Eliminates fines for serious and other-than-serious safety violations during permitted inspections in those cases where an exempt workplace had only employed 10 or fewer employees during the previous year The elimination of penalties for exempt small employers is based solely on size and not contingent on the presence of a safety advisory committee and a consultation program. 8. Changes the functional definition of an occupational injury from an injury requiring more than first aid treatment to an injury resulting in at least one lost workday Currently, under the Act, workplaces keeping records of injury experience record all injuries "other than minor injuries requiring first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." For purposes of identifying exempt workplaces under this bill, injuries are only counted if they result in at least one or two lost workdays (for the affidavit or the worker compensation-based exemption, respectively-see item 2, above). Further yet, for those employers gaining exemption through the State worker compensation system approach, these would have to be reported lost-day injuries. BACKGROUND REPORT-WORKERS' COMPENSATION SYSTEM Data and S. 2153 This act would be applicable to businesses of all sizes and offers a partial exemption from OSHA safety inspections to "workplaces" with "good" safety records. To determine which workplaces have good safety records, employer data from workers' compensation reports filed with the state would be used. This report, prepared by the AFL-CIO Social Security Department, deals solely with the use of such data as a basis for determining the safety of a workplace. Provisions of S. 2153 S. 2153 defines "workplace" as (1) a single physical location of an employer, (2) several physically dispersed locations or (3) a single location where distinctly separate activities are performed" in which case each activity would be treated as a separate workplace. Thus, the term "workplace," as used in the bill, is not synonymous with the term "employer." Under this bill, any "workplace" of an employer covered under a state workers' compensation statute can qualify for inspection exemption in two ways: (1) The workplace does not appear on a list compiled by the state workers' compensation agency and submited to the Secretary that shows which employers had in the preceding year (a) One or more occupational injuries as reported to the agency, or (b) All occupational injuries which result in two or more lost workdays. (2) In the preceding year, the workplace had no employee deaths caused by occupational injury and had a number of lost workday injuries' less than or equal to the number specified in the following table: 1,000 and over, two injuries per every 100 employees. Analysis (1) The bill would require that a listing of all covered employers reporting injuries to the state workers' compensation agency be forwarded by the state to the Secretary of Labor. It further requires that all employer workplaces where injuries occurred should be on the list-with only those "workplaces" not on the list being exempt from OSHA inspection. Further, workplaces on the list could qualify for exemption according to the number of employees (see table above). Thus, the state agency would be required not only to collect and report data by employer-even though many states currently do not-but also by "workplace" as defined under the Act. The definition of "workplace" provides for numerous workplaces ("each activity") under one roof, and workplace identification for reporting purposes would require the states to collect and report injury data in each of them, not just by the name of the employer who controls all of the workplaces. The bill does not specify who would define physical workplace boundaries or workplace by "activity." The states would be required to list injuries in potentially hundreds of thousands of workplaces to determine which workplaces were exempt. No state workers' compensation agency currently collects injury or lost workday data by "workplace." Data collection of this type would be overwhelmingly difficult, if not impossible. (2) In order to qualify for exemptions, employers might be induced to conceal injuries by not reporting them. Reporting could be avoided if employers encouraged workers to use sick leave or accident benefits or provided injured workers with paychecks rather than workers' compensation. Most workers would prefer to take sick leave or full pay for short-term injuries, because they would be reimbursed full salary, rather than the partial payments of workers' compensation. But this choice of workers should not be the basis for determining an injury-free environment. (3) Seven states do not collect any information on first injuries. At least some information is provided from the first report of injury form in 43 states, although this information may be coded and processed in an agency other than workers' compensation, such as Departments of Labor or Health. States not collecting such information are: Alabama, Connecticut, Illinois, Louisiana, New Hampshire, Oklahoma, Rhode Island and South Carolina. (4) Reporting procedures among the 43 states vary to such an extent that any uniformity in data is impossible to obtain. (a) 24 states collect data on only a portion of all injuries/illnesses that occur in a given calendar year: 17 states collect information essentially for all injuries/illnesses. Five collect information for all cases except certain "medical only" cases. Four exclude cases with less than two days lost time. One excludes cases with less than three days lost time. A lost workday injury is any occupational injury resulting in one or more lost workdays. The number of employees of the workplace is the average number of full-time employees during the preceding year, 1.e., the number of employees by workplace, not employer. Five exclude cases with less than four days lost time. Six exclude cases with less than eight days lost time. At least two states collect information on a sampling basis only. (b) There is no uniform procedure for identifying employers by name: 15 states do not have employer identification codes. However, seven of these states do use the employer's name. 12 states use the employer's unemployment insurance (U.I.) account number. but some cannot be matched with the U.I. computer files. 10 state systems use employer identification numbers developed by the particular state agencies which are not related to any system used by the federal government. Two states use the Federal Employer Identification number (I.R.S. number). Two use dual employer identification codes (the I.R.S. number and their own unique identification number). (c) There are significant coverage exclusions under the various state workers' compensation statutes: Coverage of employers is elective rather than compulsory in New Jersey, South Carolina and Texas. Fourteen states have numerical exemptions. These exemptions range from employers with one employee to employers with fewer than six employees. Other exemptions applying to small establishments or employers include agricultural and casual employees, employee of religious and charitable organizations, etc. BROWN LUNG: THE CAROLINAS DON'T CARE FOR THEIR OWN-STATEMENT OF THE BROWN LUNG ASSOCIATION ANALYSIS OF THE FINDINGS IN "BROWN LUNG DISABILITY: COSTS, COMPENSATION & CONTROVERSY" SUBMITTED BY PAUL CLINE Study population Data from 260 N.C. & S.C. workers' compensation claimants (for byssinosis) were collected. (Approximately 1,100 cases had ever been filed in the 2 states as of 11/79). The study participants retired disabled at the average age of 58 years, after working an average of 32 years in cotton mills. 88 percent of the group retired before the age of 65. On the major objective lung function test for byssinosis, Industrial Commission panel physicians found the study participants' average FEV1 (forced expiratory volume in one second) value to be 51 percent of expected normal. Workers' compensation claims experience Of the 260 workers' compensation cases filed, only 46 had received a decision from the state Industrial Commissions. Twenty-eight cases were denied and 18 awarded. 3 persons who get awards subsequently settled their claims. Of all these closed cases, the average time from claim filing to date of final decision was 22 months. 60 percent of the filed cases were still pending. Their average elapsed time since filing was also 22 months (at the time of the survey). Settlement agreements (Industrial Commission purview) are the major consequence of this extensive litigation. Three-quarters of those receiving workers' compensation payments and two-thirds of the benefit dollars came through these lower-paying settlements as contrasted with Industrial Commission post-hearing decisions and awards. Major reasons for workers' compensation delays included automatic controversion by the insurance carriers and lack of medical criteria for evaluating the work-relatedness of disability. After 12 years average elapsed time from filing, 61 percent of all filed cases still had not gotten an opinion on dustrelatedness of disease. But, even in the 115 cases where doctors had stated their opinion that an association between cotton dust exposure and respiratory disease existed, 50 percent had not been settled. Sources of income support for the population Social Security is the primary source of income support. 95 percent of the sample were receiving benefits from Social Security with average monthly payments of $268. Only 5.5 percent of the sample were receiving ongoing workers' compensation benefits, an additional 20 percent had received lump-sum payments which averaged 40 percent lower than ongoing benefits payments. |