Renew the Promise
Apr 28, 2021


We are wedded to workplace safety news this week. Today is “Go Orange Day,” a special way to remember those who have lost their lives to vehicle accidents in work zones.  Let’s vow to take extra precaution as we move into the spring months and roadway construction season.



As part of National Work Zone Awareness Week (NWZAW), the Federal Motor Carrier Safety Administration (FMCSA) reports that, “while large trucks make up roughly 5% of vehicular traffic, they continue to have a disproportional involvement (33%) in fatal crashes occurring in work zones. In 2019, 842 people died in crashes in highway work zones, an 11% increase from the year prior and the largest percentage increase of highway work zone fatalities this century.” In keeping with this year’s NWZAW theme, let’s promise to “Drive Safe. Work Safe. Save Lives.”  



In other workplace safety news, the New York Legislature passed the Health and Essential Rights (HERO) Act.  Governor Andrew Cuomo (D-NY) is expected to sign the measure in the coming weeks.  The bill would go into effect 30 days after the governor signs it.  The HERO Act requires employers to implement new workplace health and safety protections in response to the COVID-19 pandemic.  Let’s take a closer look at the bill’s requirements.



The HERO Act directs the New York Department of Labor (NYDOL) to establish minimum requirements for preventing the spread of airborne infectious diseases in the workplace.  The standards must differentiate among industries and must address several areas, including (1) employee health screenings, (2) face coverings, (3) personal protective equipment, (4) social distancing, and (5) cleaning and disinfecting protocols. The Act will require the NYDOL to issue enforceable minimum workplace health and safety standards within 30 days of the governor’s signature.



Under the law, employees will be permitted to form workplace committees to review and monitor their employer’s plan, raise health and safety concerns, and participate in on-site government inspections related to compliance. Such workplace safety committee provisions will take effect 180 days after the governor’s signature.



Employers who fail to adopt a relevant HERO Act plan will be subject to a penalty of at least $50 per day until such a plan is implemented. An employer who fails to comply with its adopted plan can be subject to a fine ranging from $1,000 to $10,000.



Employers will be barred from retaliating against employees for reporting violations of their standard, for reporting concerns of exposure to such diseases, and for refusing to work where the employee has a good faith belief that the workplace exposes them to an unreasonable risk of exposure. The law also authorizes employees to bring a lawsuit seeking injunctive relief against an employer for failing to comply with the above provisions of the law.  Courts may enjoin the employer's conduct and award the plaintiff attorneys' fees and costs and liquidated damages up to $20,000, unless the employer demonstrates good faith attempts to comply with the standard.



Finally this week, President Biden announced the White House Task Force on Worker Organizing and Empowerment (“Task Force”) to mobilize the federal government’s policies, programs, and practices to empower workers to organize and successfully bargain with their employers.  The President’s Executive Order directs the Task Force to make a set of recommendations within 180 days addressing two key issues. First, how can existing policies, programs, and practices be used to promote worker organizing and collective bargaining in the federal government? And second, where are new policies needed to achieve the Task Force’s mission and what are the associated regulatory and statutory changes needed?  Vice President Kamala Harris will serve as the Task Force’s Chair and Secretary of Labor Marty Walsh will serve as the Vice-Chair.




Several pieces of risk, claims, and insurance related legislation are advancing in Tallahassee. The Florida House of Representatives unanimously passed HB 651, a measure that would allow parents to file wrongful death actions sounding in medical malpractice on behalf of their children.  For the past 30 years, Florida law limited wrongful death actions in cases of medical malpractice by maintaining that “a child 25 or older could not sue over the death of a parent and vice versa.”  Florida is the only state that does not allow this type of recovery.  In other claims news, the Florida House Judiciary Committee backed an amended bill (HB 719) that would eliminate the no-fault system, along with the requirement that motorists carry personal injury protection (PIP) coverage. Under the proposal, motorists would be required to purchase bodily injury coverage, which many already have in their policies.



The Senate Appropriations Committee unanimously approved a bill (SB 390) to permit the Office of Insurance Regulation to audit Pharmacy Benefit Managers (PBM), like it does other entities, to examine potential cost-cutting avenues.  And in other drug-related news, the Florida Supreme Court ruled that the Sunshine State cannot use a ballot initiative to legalize recreational marijuana for adults. A 5–2 majority of the court struck the initiative, asserting that the ballot summary implies that the initiative would legalize marijuana under federal law, rendering it “affirmatively misleading.”


Making Our Way Around the Country


This week, the Committee on Insurance in the California Assembly proposed amended text for the Mandatory Provider Network (MPN) bill known as, “AB 1465.” The amended bill would require the Commission on Health and Safety and Workers’ Compensation to submit a report to the Legislature and to the Division of Workers’ Compensation, by January 1, 2023, that details delays and access to care issues in medical provider networks. The study is also expected to compare specified data for injury claims in which a worker was treated by an MPN provider to those injuries where the treatment was outside a network.  The California Workers’ Compensation Institute (CWCI) released an analysis of this bill finding that the public California MPN is unlikely to improve access to care. We’ll continue to track this evolving legislation.



Federal trucking regulators proposed a four-year delay in the redesign of a web-based national registry of certified medical examiners. The proposed delay follows a Department of Transportation (DOT) Inspector General audit that criticized the FMCSA for falling short in overseeing the driver medical examination process. The website is intended to ensure that commercial vehicle drivers meet physical qualification standards for getting behind the wheel.



The New York State Workers’ Compensation Board launched the Injured Workers Legal Assistance Project (IWLAP), the Empire State’s first such initiative.  Injured workers can now contact the New York State Bar Association (NYSBA) on-line to be matched to a NYSBA member attorney who will represent workers pro bono in certain workers’ compensation claims. The New York State Bar website has more information on this initiative.



Back to our main story this week, today marks the 50th anniversary of the Occupational Safety and Health Act (OSHA), which was enacted on April 28, 1971. Over the past five decades, OSHA transformed our workplaces and helped find ways to reduce workplace fatalities, injuries, and illnesses.  Today, as with every 28th day of April, is Workers Memorial Day, a day that honors the victims of workplace injury and illness. Your partners at The Way are grateful to play a small part in all you do to maintain safe workplaces.  Until next week, stay safe, stay well, and stay connected. 


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