Workers Comp Zone


On April 28 Workers’ Memorial Day was observed.

This annual designated day, apparently initiated by the AFL-CIO in 1970, focuses on those killed and maimed at their jobs. I usually mark the day by attending an event to commemorate the day. This year that was an Oakland event sponsored by the WORKSAFE activist group and by LOHP (the Labor Occupational Health Program at UC Berkeley).

In this blogging space it is sometimes easy to get lost in the ebb and flow of the workers’comp system without focusing on the human face of it all. There are blogworthy studies about industry trends, new cases to analyze, rate making decisions to dissect, regulations to cover and a host of other noteworthy issues that pop up.

But if you go to one of the Workers’ Memorial Day events you are immediately struck by seeing faces. Each table had some photos of a California worker killed on the job within the last several years. Along the wall there was a makeshift shrine with pictures of many other workers who died due to their work injuries.

You can see a number of these yourself, and learn more about the workers who perished, by looking at the WORKSAFE report “Dying at Work in California” (see link at bottom of this post). The report includes a list of California workers killed in 2017, including a brief description of what happened to them. The list is not exhaustive for two reasons. First, these lists do not include those who perish because of cumulative occupational illness (nor who die as a sequel of their treatment for a non-fatal injury). Second, there is some lag time in statistical reports.

Each one of these deaths are personal and family tragedies. In the past I’ve blogged about the great work that Kids’ Chance California is doing to provide assistance for college for kids left behind after worker deaths.

What follows are some of the key points from the WORKSAFE report and various presentations at the Oakland event, which focused on the concept of “Mourn for the dead, fight for the living”.

Although we would always want California to reduce workplace fatalities, the state is doing better than the national average, with California having 2.2 deaths per 100,000 workers in 2016 versus a national average of 3.6 deaths per 100,000. California had 376 known worker deaths on the job in 2016, slightly down from 388 in 2015. The fatality rate in California has fallen about 40 percent since 1999.

Of the 2016 worker deaths, 145 were transportation incidents, 77 assaults and violent acts, 64 trips and slips, 58 contact with objects or equipment, 20 exposure to harmful substances, and 9 due to fires and explosions. The most dangerous industries were agriculture and forestry, transportation, utilities and construction. Workers of Latin origin comprised 39% of the 2016 fatalities.

Nationally there are approximately two workplace deaths per day. While California trends show reduced workplace deaths, the national figures show a 12 percent increase from 2012 to 2016. nationally about one-fifth of the deaths are immigrant workers.

But California can do better.

The Workers Memorial event focused on several specific areas of concern. One is workplace violence. It was noted that in addition to the high number of workplace violence deaths, there is a significant problem with workplace sexual assault “against immigrant women and women of color in low-wage industries such as the janitorial sector, hotel housekeeping, food service and agriculture.”

The WORKSAFE report notes that:

“Lawmakers are heeding this call to action and moving legislation to help give workers the tools they need to be safe at work, such as bills requiring panic buttons for hotel housekeepers, and sexual harassment training.Some laws have already been put in place, such as the workplace violence prevention standard in health care, and the requirement of sexual harassment and violence prevention training in agriculture and janitorial settings.

California is on the vanguard of changing the narrative and focusing on workplace violence prevention. Cal/OSHA has started an advisory committee to create a statewide standard for all industries requiring employers to have a plan addressing workplace violence prevention.”

Another area of focus is safety for temporary workers who often have less training and who are brought in to do the more arduous tasks.

Other particular areas of special concern are firefighters and fire disaster workers (many of whom are incarcerated but working fires out of the California Conservation Camp Program) and immigrant workers.

WORKSAFE suggests changes to the California rule-making process to make it more worker-friendly:

“Since failure to have protective policies in place could result in preventable worker deaths, we need to address roadblocks in rule-making. An example of one such roadblock is  the standardized regulatory impact analysis” (SRIA) process which is a mandatory fiscal analysis for any regulation that has the possibility of surpassing the threshold of $50 million in costs and benefits combined. SRIA can delay the rulemaking process for important standards (such as the General Industry Workplace Violence Prevention Standard) for up to a year, posing significant ramifications for vulnerable workers. Considered duplicative and time-consuming since the standards making process already incorporates a number of public hearings and meetings in which fiscal impact can be discussed, we recommend making Cal/OSHA exempt from SRIA.”

Meanwhile, at the Workers’ Memorial event,  Cal/OSHA Chief Juliann Sum noted that a general industry workplace violence standard is being worked on but that it is complicated. To move it through the California Occupational Safety & Health Standards Board and the Office of Administrative Law the standard will require clarity, consistency, and necessity and will necessarily incorporate employer input.

California has already adopted a Workplace Violence Prevention in Health Care standard which applies to hospitals and various healthcare facilities (see link to the standard below). This is now being proposed as a Federal standard in a bill proposed by Rep. Ro Khanna (D-Fremont).

The take away on all of this is that much has been done but there is still much to do. As they say, “Mourn the dead but fight for the living”.

The WORKSAFE 2018 report on “Dying at Work in California” is here:

Here is the link to the new California workplace violence standard for healthcare facilities:

Here is a link to an analysis of AB 1761, the proposed housekeeper panic bill:

Stay tuned. In my next post I’ll be looking at the California Supreme Court’s new decision in the Dynamex case that provides an analysis of what constitutes an employment relationship under California law.

Julius Young