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The general contractor for the construction of the Merrimack Premium Outlets shopping mall in Merrimack, N.H., has been accused of violating workplace safety standards. According to the U.S. Department of Labor’s Occupational Safety and Health Administration, the contractor, as well as nine other subcontractors, underwent a programmed inspection by OSHA’s Concord-area office back in January, which has since cited then $173,500 in fines.

The fines levied against the contractors reflect a variety of different hazards. According to Rosemarie Ohar, OSHA’s New Hampshire area director, the agency’s inspections “found workers exposed to… common but avoidable hazards associated with construction work, notably falls and electric shocks,” both of which are potentially fatal. As Ohar noted, this indicated a failure on the part of the contractors to “adhere to required safeguards at all times and on this and all job sites.”

The citations against the general contractor, Hardin Construction of Atlanta, Ga., carried $27,000 in fines and reflect five serious violations. Specifically, these violations include “employees being exposed to falls of up to 20 feet, an ungrounded power generator, unsecured and unmarked hole covers on the roof, a failure to supply fire extinguishers throughout the job site, and a lack of inspections by competent individuals with the knowledge to identify and authority to correct hazards.”
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According to recent study of health survey data, private sector employees with paid sick leave are less likely to be hurt on the job. The research, which was conducted by the CDC’s National Institute for Occupational Safety and Health in Washington, D.C., found that these workers were “28% less likely to report an occupational injury that needed medical care.” The information was revealed in a statement from Dr. Abay Asfaw, PhD.

The 1993 Family and Medical Leave Act does necessitate that public and private-sector establishments allow for up to twelve weeks of leave to all eligible employees, but it does not specify whether that time must be paid or unpaid. The result of this policy is that employees who are not allotted paid sick leave feel pressured to work through illness because they do not want to lose any income. According to Asfaw’s statement, this could lead to an “increased risk of injury.” The study thus concluded that if fewer people work while they are sick, it could lead to a safer workplace.

The researchers did not that their data was “cross-sectional” and could not effectively establish a cause-and-effect relationship between paid sick leave and workplace safety. However, it is notable for being the first such effort to analyze information representing the non-institutionalized U.S. population. The study used data from the National Health Interview Surveys between 2005 and 2008. The surveys included questions regarding workplace injuries requiring medical care. However, the data was collected only from private-sector employees, as most public-sector workers have paid sick leave.
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Interstate Electrical Services, a North Billerica electrical contractor, has been cited by the Department of Labor’s Occupational Safety and Health Administration for “willful and serious violations” relating to a November 2011 blast at an Andover jobsite. Reportedly, OSHA’s Andover Area Office determined that an electrical panel was not effectively guarded and, as a result, two workers installing electrical service made contact with the unguarded area and an arc flash occurred.

After the incident, OSHA issues a willful violation citation, which carried a $70,000 fine. It also issued the contractor two serious citations, amounting to $11,000 in fines. These citations stemmed from additional electrical hazards related to a damaged power cord and energized electrical wire that was not properly protected. A serious violation occurs when there is substantial risk for death or serious physical injury resulting from a hazard about which the employer knew or should have known.
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State fire authorities have suspended the license of a fireworks company that left behind unexploded shells near the launching sites for several of their shows. On July 6, city workers mowing lawns in three separate Massachusetts towns ran over the undetonated fireworks, causing them to detonate under the workers’ lawnmowers. Fortunately, the individuals were uninjured, a fact State Fire Marshal Stephen Coan attributes to the size of the commercial mowers they were using.

According to Coan, the company responsible for leaving behind the shells is Pennsylvania-based Pyrotecnico. He also said that state fire code requires companies to search for unexploded shells the morning after a show. Officials are currently conducting an investigation to determine whether Pyrotecnico violated this regulation.
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The Bureau of Labor Statistics has recently produced a report on workplace fatalities, and the figures are somewhat encouraging. According to the most recent data, which comprises deaths recorded in 2010, the workplace is actually becoming safer for many Americans. The Bureau reports that there were 4,547 fatal occupational injuries, which is 4 fewer than occurred in 2009.

Many sectors remain notoriously dangerous, with some reaching up to 116 fatalities per 100,000 workers. However, the overall trend seems to point toward increased safety in the workplace. Most of the reported injuries and deaths occur in only a handful of the most dangerous occupations.
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The adhesives manufacturer Bostik Inc. has agreed to pay $600,000 in fines as a result of workplace safety citations stemming from a March 2011 explosion at its Boston Road plant in West Peabody, MA. Investigators from the Department of Labor reported that the accident, which was the result of a valve being left open, damaged two nearby buildings and caused nonlife-threatening injuries to four workers at the plant.

The Department of Labor’s Occupational Safety and Health Administration (OSHA), after an initial six-month investigation, had cited Bostik for a number of violations of federal safety requirements and procedures. It concluded that the most worrisome of these were the “serious deficiencies” in the company’s process safety management program-a comprehensive document required of companies that have more than 10,000 pounds of hazardous materials on-site. Bostik has said it is now taking steps to correct these deficiencies.
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Under current Massachusetts law, the failure of a business owner to purchase workers’ compensation for their employees is considered a misdemeanor-which carries a fine of up to $1500 or a year in prison. However, some believe the penalty is too light and hope to raise the penalty. According to reports, this week, the Massachusetts Senate will consider a bill that would raise the violation to a felony-which is already the fine for workers’ compensation fraud and carries a fine of up to $10,000, 5 years in prison or 2.5 years in jail. Currently, if a business owner does not purchase workers’ compensation, the state must pay for the compensation from a state trust fund-which comes from employers who do pay for workers’ comp and which reports indicate cost $26 million from the fund in the last 5 years.

As with all changes, however, there is opposition from those who believe the penalty is already high enough. We will update you with the progression (or lack thereof) of the bill. If you have any questions about the bill, its progress, or how it may affect you, feel free to contact an attorney.

Workers’ compensation failure a felony under bill before Senate, BostonHerald.com, April 15, 2012

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In a recent decision, the Massachusetts Supreme Court found that workers’ compensation disability benefits could, in some cases, be calculated based on the worker’s current weekly earnings at his most recent job-even if that job is not in Massachusetts.

The controlling precedent for the lower court’s decision in this case was Letteney’s Case, where the court held that wages earned outside of Massachusetts could NOT be used to determine current workers’ compensation benefits. In the case at bar, the court reined in that holding-limiting it to cases involving “out-of-State wages earned after suffering latent injuries (such as from exposure to asbestos) that do not result in eligibility for incapacity benefits for at least 5 years.”

Scott Wadsworth, the plaintiff in the case, was certainly pleased. Wadsworth was injured in a metal rolling machine accident (his right hand was crushed) in 1980 while on the job at a Massachusetts corporation. He received benefits for incapacity from 1980-1988. He then started a job in Connecticut. He underwent a procedure to help the pain in his previously injured hand, which only caused further pain, then applied for permanent disability in 2003, arguing that his benefits should be calculated based on his wage rate in 2003 at his Connecticut job. Wadsworth’s rationale was that “he was permanently disabled from a subsequent injury that was a recurrence of his 1980 injury after having returned to work for a period of at least two months.”

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Real “employee” versus “independent contractor.” How much difference does it make? The answer is that it can mean a great deal, as Massachusetts employers keenly recognize in seeking to classify more workers as independent contractors rather than employees these days, in an effort to limit their own responsibilities.

Regular employees get overtime. Independent contractors, by contrast, do not. Employees get unemployment insurance and-importantly-workers’ compensation benefits. Independent contractors do not. As such, how you are classified can me a whole lot in the case of an accident on the job or an injury that prevents you from working.

Recently, Boston taxi drivers have taken a stand against a change in their classification. According to the Boston Globe (quoting Catherine Ruckelhaus),

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According to reports, workers’ compensation rates in Massachusetts may significantly increase in September, if the state approves a proposed increase. The Workers’ Compensation Rating and Inspection Bureau of Massachusetts (WCRIBMA)-a non-profit organization licensed by the MA Division of Insurance that represents companies that write workers’ comp policies- asked the state to approve a 19.3% increase. This increase would raise the cost of employee compensation insurance for MA employers, which they are required to provide under M.G.L. Chapter 152, Section 25A.

We will keep you updated on this and other workers’ compensation developments in Massachusetts. If you have been injured on the job and believe you may be eligible for workers’ compensation benefits, contact a seasoned MA workers’ compensation lawyer.

Workers’ comp rates could go up, Boston.com, March 2, 2012

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