Question: Who is authorized to inspect my workplace and employees?

As mentioned in the last post, OSHA is the federally mandated agency authorized to inspect for safety and health standards. However, the National Institute for Occupational Safety and Health (NIOSH) may conduct investigations in employer workplaces in conjunction with research for scientific studies. The Environmental Protection Agency (EPA) and the U.S. Department of Agriculture have authority to inspect for standards of care and hygiene distinct from OSHA’s public charge. Workers’ compensation insurance carriers may also inspect businesses that they insure and make safety recommendations.

Question: What is OSHA?

Workers’ compensation insurance is mandated by each individual state and there is a separate set of workers compensation laws for employees that work outside states on navigable waters. There is also Federal regulation involved in workplace safety through the Occupational Safety and Health Administration (OSHA), which is an agency within the Department of Labor.  OSHA covers nearly all employers in the private sector, regardless of what state workers’ compensation laws they fall under.

In 1970, the federal act best known in the area of workplace safety was passed and called the Occupational Safety and Health Act. The Occupational Safety and Health Administration (OSHA) is the agency within the Department of Labor that is responsible for establishing safety standards and enforcing compliance by inspecting places of employment. OSHA provides consultation, training and information services for employers and employees and publishes statistics concerning the incidence, severity and causes of occupational injuries and illnesses. OSHA creates partnerships and alliances with businesses and associations to promote safety and attempts to quantify bottom line savings to employers.

Compliance. Compliance with OSHA standards is obtained through inspections and voluntary actions by employees. Inspections by OSHA are scheduled to:

1. investigate claims of imminent danger and employee complaints alleging serious workplace hazards
2. investigate work site accidents that result in fatalities or the hospitalization of five or more workers
3. conduct programmed inspections of workplaces in high hazard industries
4. investigate complaints of discriminatory actions against employees

Record Keeping. OSHA has established certain record keeping requirements for recording and reporting occupational injuries and illnesses.

Voluntary Protection Programs (VPP). OSHA has established what are known as Voluntary Protection Programs (VPP), which are intended to recognize outstanding safety programs developed by employers. These programs typically include management systems for controlling and preventing occupational hazards. They differ from conventional OSHA programs in that their objective is to protect the work site as well as the people working there. OSHA will regard an employer safety program as being effective, generally, when it is deemed appropriate for the kind of risks associated with that business or occupation and when it protects workers from actual hazards and the potential for significant risk.

Employee Responsibilities and Rights Under OSHA. The Department of Labor has identified the following responsibilities of employees under OSHA:

1. Read the OSHA poster at the job site.
2. Comply with all applicable OSHA standards.
3. Follow all employer safety and health rules and regulations and wear or use prescribed protective equipment while engaged in work.
4. Report hazardous conditions to supervisors.
5. Report any job-related injury or illness to the employer and seek treatment promptly.
6. Cooperate with an OSHA compliance officer conducting an inspection if he/she inquires about safety and health conditions in the workplace.
7. Exercise the employee’s rights under the act in a responsible manner.

Employees also have certain rights under OSHA. Employees have a right to review copies of all appropriate OSHA standards, rules and regulations binding on the employer. The employer is obligated to have those standards available for inspection. An employee has the right to receive information from the employer on precautions that must be taken or procedures to be followed if the employee is involved in an accident or exposed to toxic substances. All employees are entitled to proper training on workplace safety and to request OSHA to conduct an investigation to determine possible violations of safety standards.

Employers are prohibited from punishing or discriminating against workers for exercising their rights under the act. In order to provide additional protection to the employee, an employee’s name may be withheld from the employer, upon request, fol¬lowing the employee’s filing of an official complaint. Employees have the right to have an employee representative present during a compliance officer’s inspection, to respond to questions from an OSHA compliance officer during such inspection, and to request a closing discussion with the compliance officer following the inspection.

Question: What causes most of the workers’ compensation injuries for employees in restaurant businesses?

I don’t have the exact loss history, but in restaurants, the far majority of injuries are from slip and falls. Many other injuries also come from cuts, burns, and lifting, along with interactions with customers. To reduce injuries, a good approach is always to establish a formal safety program and make sure that employees are well-trained, incentived to do their best, and have clear directions.

Click here for more information on how restaurant employees should be classified on Florida workers’ compensation insurance.

Question: What is the ‘great trade-off’ in workers compensation insurance?

In workers’ compensation insurance, the ‘great trade-off’ protects employers because the injured employee agrees to give up his/her right to sue the employer if they receive benefits for the work-related injury. An employer’s ‘exclusive liability’ to an employee who suffers an accidental injury or death arising out of work performed in the course and scope of employment is to secure the payment of WC benefits, as set forth in the law. By purchasing a WC insurance policy or otherwise securing the payment of benefits in a manner permitted by the law, an employer is immune from any other liability to an injured employee or his family. From the employee’s viewpoint, recovery of WC benefits is the ‘exclusive remedy’ for his injuries.

The immunity of employers is specified in 440.11(1) of the Florida Statutes, which states that the liability of an employer to secure the payment of WC “shall be exclusive and in place of all other liability to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, or anyone else entitled to recover damages from such employer” due to the injury or death of an employee. Immunity applies even if an employer’s negligence causes an injury.

The Florida Supreme Court interpreted this section in Seaboard Coast Line Railroad Company v. Smith.

“An employer under this Act is not liable in tort to employees by virtue of the express language of the Act. Such immunity is the heart and soul of this legislation which has, over the years been of highly significant social and economic benefit to the working man, the employer and the State. And whether the injury to the employee is caused by ‘gross negligence,’ ‘wanton negligence,’ ’simple negligence’ passive or active, or no negligence at all of the employer is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer’s immunity is concerned and we see no reason or logic in any distinction.”

Note, however, that the ’great trade-off’ does not protect the employer from every situation. In Byerley and Byerley v. Citrus Publishing Co., Inc., the First DCA held that an employer can’t successfully deny WC benefits by saying the injured worker was outside the scope and course of employment and then, when sued in tort for negligence, contend that workers’ compensation is the exclusive remedy. Click here to read more information on workers’ compensation insurance.

Question: Is there a limit to the benefits paid to an injured employee under my workers’ compensation policy?

No, there is no limit to the benefits paid to the injured employee under part one of the workers compensation policy that  provides Workers Compensation Insurance. The policy limits are for part two of the policy. The main difference between the two parts is that Part One applies to the statutory benefits paid by the insured and Part Two applies to common or tort law or other damages for which the insured is liable. Click here for more information about workers’ compensation policy limits.

Question: If I have a small claim that I paid, should I report that to my workers’ compensation insruance company?

 Yes, you are required to report all employee injuries to your workers’ compensation insurance company within 7 days of the injury. It is always best to report injuries as soon as possible. If there are no cost to the claims, then they will not effect your future premium because those claims are taken off your record when computing your workers’ compensation experience modifier. It is always best to let your insuranc ecompany know about claims and why they happened so you can use preventative measures to keep them from reoccuring.

Question: Are independent contractors considered employees?

Independent contractors are not employees. Prior to 1990, independent contractor was not defined. In the 1990 law, independent contractor was defined as someone whose actual conduct is not subject to the control and direction of the employer.

In 2003, the Legislature amended the definition of independent contractor to the six criteria below:

1. The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations;

2. The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations;

3. The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual;

4. The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation;

5. The independent contractor performs work, or is able to perform work, for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or

6. The independent contractor receives compensation for work or services rendered on a competitive-bid basis, or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

In order to meet the definition of independent contractor, in non-construction at least four of the six criteria must be met. In the construction industry, all six criteria listed above must be met.

Note: The “independent contractor” status of individuals engaged in certain agricultural, forestry, or farming occupations, and newspaper delivery persons, are not governed by the six criteria listed above, but rather by common law principles (Internal Revenue Service guidelines are often cited), pending a review of the actual business activity of the individual.

Question: Can an employer be liable for double compensation on a workers compensation claim?

 Yes, an employer can be liable for double compensation if a minor child is injured while employed in violation of any of the conditions of the child labor laws of Florida. the employer alone, not the insurance carrier, is liable for up to double the normal compensation as provided by the Workers’ Compensation Law. To receive further infomration regarding the Child Labor Law, call the Child Labor Office at 1-800-226-2536.

Question: Is compensation payable if an employee refuses to use a safety appliance like a hard hat, safety goggles or observe a safety rule?

The workers compensation policy will still cover the injuries, but indemnity benefits (partial wage replacement) may be reduced by 25 percent if the employee knew about the safety rule prior to the accident and failed to observe the rule, or if the employee knowingly chooses not to use a safety appliance which the employer has directed him to use.

Question: If I suspect a business should have workers’ compensation insurance coverage, but it does not, or if I suspect fraudulent activity in a workers’ compensation claim, where do I report this?

Suspected workers’ compensation fraud can be reported directly to the:

Department of Financial Services
Bureau of Workers’ Compensation Fraud
200 E. Gadsden Street, Suite 100A
Tallahassee, Florida 32301

The bureau’s toll free number is 1-800-378-0445. Suspected fraud can also be reported to the Florida Workers’ Compensation Bureau of Compliance’s toll free number at 1-800-742-2214. Anonymous calls are accepted.

You can also fill out the Non-Compliance Referral Form to report employer’s who do not have workers’ compensation insurance coverage. This form can be accessed at the Division’s website at www.myfloridacfo.com/wc/databases.html. This website also has a compliance section where you can check to see if  business has records of carrying workers’ compensation insurance.