December 2022

Retaliation claims: what they are and best practices to avoid them

Posted on December 21, 2022December 21, 2022 by Alyssa Rass

Most states have laws prohibiting retaliation against an employee for filing a work comp claim. If an employee feels they’ve been wrongfully targeted for exercising their protected right, they may in turn file a retaliation claim.

Some examples of workplace retaliation include:

Failing to provide a First Report of Injury Form at the time of injury or telling the employee they can’t seek medical attention for their injury
Terminating, laying off, demoting or transferring the employee to a less desirable position
Denying the employee overtime, or denying them a promotion or pay increase
Reducing the employee’s pay, hours or benefits
Giving the employee unjustifiably low performance evaluations
Unexpectedly changing the employee’s schedule or work location
Intimidating the employee or creating a difficult or unpleasant working environment for them

The cost of termination

It’s important to know that termination of employment does not terminate the work comp claim. Some employers may try to reduce or limit the payable lost-time benefits on a work comp claim by terminating the employee for a reason unrelated to the work injury, however, this idea may ultimately make the claim more costly.

Depending on the circumstances surrounding the termination, temporary total disability and temporary partial disability benefits may still be available to an employee up to the statutory caps on the benefits. Therefore, terminating the employee may cost the employer more in wage-loss benefits compared to actively working with the injured employee to return to work.

Two other examples of benefits an employer could continue to pay after terminating employment are vocational rehabilitation treatments post-injury, and assistance in their search for a new job.

If the employer is found to have terminated the employee in relation to their work comp claim, they may be responsible for paying the employee civil damages, including punitive damages. For example, Minnesota’s work comp state statute 176.82 subd. 2 states that “an employer who, without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee’s physical limitations shall be liable in a civil action for one year’s wages.”

Insurability of a retaliation claim

Retaliation claims are civil claims made in state district court, and as such are not typically covered under work comp policies. This means you would need to hire your own attorney to defend against the claim.

Tips to avoid a retaliation claim

A work comp claim requires equal cooperation from both the injured employee and the employer, but an employer can take several steps to reduce their likelihood of a retaliation claim. Here are some tips to avoid litigation:

Communicate with the injured employee frequently and make sure they know the company cares about their recovery. Maintain a good relationship even if there is a dispute.
Include non-retaliation provisions in your company policies and educate employees.
Document any reports of harassment or retaliation of the injured employee and investigate them. Communicate your concern to the injured employee and keep them updated on any investigation.
Accommodate doctor-prescribed work restrictions.
Have a return-to-work plan and make sure to offer light duty job options, when appropriate.
Document any performance concerns as they arise, and address them with the employee in an appropriate manner consistent with company employment practices and policies.
Consider the possible ramifications before disciplining or terminating an employee.

This is not an exhaustive list. For tips on how to avoid litigation in general, view our Avoiding Litigated Claims webinar on sfmic.com/webinars.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

Reducing repetitive motion workplace injuries

Posted on December 21, 2022February 22, 2024 by Alyssa Rass

By SFM Loss Prevention Specialist Mike Fetting, CSP, CIEE, CSPHA

The potential for injury from repetitive motion and awkward positions in jobs is widespread across many industries and businesses.

You can greatly reduce the likelihood of these injuries by implementing best practices in workplace ergonomics.

Epicondylitis, tenosynovitis, trigger finger, tendonitis, and carpal tunnel syndrome are all common repetitive motion injuries that can develop over time without correct workplace ergonomics. While these types of injuries can occur in the lower body, they are much more common in the upper body — shoulders, elbows, wrists, hands and fingers.

Force, frequency and awkward position are the three main ergonomic hazards. Repetitive motion (frequency) alone is unlikely to cause an injury. The risk elevates when frequency is accompanied by excessive force, awkward position, or both. Vibration, static postures, contact stress and cold temperatures can also play a role in increasing risk.

There are a variety of benchmarks you can use to determine basic injury potential, but a professional ergonomic evaluation is the most accurate way to assess the risk of injury. Even without a professional evaluation, you can perform you own basic risk evaluation.

Consider the following:

Force/intensity of exertion – Is the effort obvious? Is there a change of facial expression? Does a task using the hands require shoulder or trunk involvement?
Speed of work – Is the worker visibly rushed or just keeping up?
Duration of the cycle – Does the specific body part ever get a break while performing this task?
Hours per day – Does the worker perform this same task all day?
Awkward position – A neutral position is one in which the upper body is in the handshake position with the elbow at the side. The further away a worker’s body is from that neutral state, the more awkward the position will be, and the higher the propensity for a variety of repetitive motion injuries.

Preventing repetitive motion injury

There are three main tools for reducing the risk of repetitive motion injury: engineering, job rotation and stretching.

Engineering is easily the most powerful intervention. Changes should focus on the main risk factors: force, frequency and awkward position. Examples include changing from pistol grip to inline drivers, tilting the work, adding fixtures to hold the work, adding automation or mechanical assist to the job (or some portion of the process). It is important to work closely with employees and supervisors since changes may cause unforeseen problems. Ask employees to have an open mind and test changes for at least several days.

Once engineering is exhausted, the next most useful tool is reducing exposure through job rotation. Ideally the tasks use very different muscles, but even moderate differences can be helpful. Reducing a specific joint’s use from eight hours per day to two hours per day can cut the risk in half, according to some ergonomic models. One popular method is to change tasks at each break, including lunch. In most places, this means each employee will have three different jobs during the day. Changing tasks every two hours is even better. Some workplaces have high-demand tasks that are rotated after just one half-hour!

Lastly, stretching and flexing to warm up the muscles and get them ready for work can be a valuable addition to a complete ergonomic program. Check out sfmic.com for stretching exercises and workplace ergonomics tips.

The best solutions preserve employee health, increase production, and can even increase your job-candidate pool. Over the long term, fewer injuries often translate into lower workers’ compensation insurance premiums.

How to prevent safety hazards due to impairment

Posted on December 21, 2022February 25, 2025 by Alyssa Rass

Drug and alcohol use and misuse are on the rise:

Drug overdose deaths in the U.S. reached a new high in 2021 to 107,622, an increase of nearly 15% from 2020, according to the Centers for Disease Control and Prevention .
Marijuana and hallucinogen use reached the highest levels ever recorded in 2021 among young adults 19 to 30 years old, according to the National Institute on Drug Abuse .
1 in 10 Americans over age 12 had alcohol use disorder in 2020, according to the National Center for Drug Abuse Statistics .

Most people who misuse drugs or alcohol are employed, according the Substance Abuse and Mental Health Services Administration .

If employees show up to work under the influence, they can create safety hazards for themselves and others, since drug and alcohol use can impair senses, reflexes, memory and judgment.

In addition to creating safety hazards, workers with substance use disorder also miss two more weeks of work annually, and have higher turnover rates on average than other workers, according to the National Safety Council .

What employers can do

As an employer you can establish or update your drug and alcohol program to prevent the safety risks of drug and alcohol use on the job.

A workplace drug and alcohol program typically includes:

A clear and communicated handbook policy on intoxication.
Pre-employment drug and alcohol testing. When you make a job offer, it’s contingent on passing a screening for drug and alcohol use.
Reasonable suspicion testing. This requires training your supervisors to identify the signs and symptoms of impairment, such as slurred speech or stumbling.
Post-incident testing. You can set parameters in advance for what level of event will trigger a mandatory drug and alcohol test.
An Employee Assistance Program (EAP). If you learn through your drug testing program that an employee is suffering from substance use disorder, your EAP can point them to resources to support their recovery.

What if there is an injury?

You may be wondering, what happens if someone is injured on the job while using drugs or alcohol?

Many states, including Minnesota, have several exceptions to the typical workers’ compensation no-fault system. One exception is the so-called “intoxication defense.” Minnesota’s law, which was first enacted in 1953, states that if the intoxication of the employee is the proximate cause of the injury, then the employer is not liable for workers’ compensation benefits. The burden of proof, however, is on the employer.

Iowa law states that if an injured employee fails the post-injury alcohol and drug tests, they will then carry the burden of proof to show that they were either not intoxicated, or that the intoxication was not the substantial factor in causing the injury.

In Wisconsin, the law states that if the employee is in violation of an employer’s policy regarding alcohol or drug use and that violation causes a work injury, the employee would lose all their rights to workers’ compensation benefits, except medical.

Colorado, which has had medical and recreational marijuana legalization in effect for several years, has one of the tougher laws. It states that if a drug test indicates the presence of a controlled substance, including marijuana, in the employee’s system during working hours, then it is presumed that the employee was intoxicated, and the injury was caused by the intoxication. The employee would then have to rebut this presumption by presenting clear and convincing evidence. Indemnity benefits would be reduced by 50% if the employer prevailed on this defense, but medical benefits would not be affected.

It’s important to report workers’ compensation injuries to SFM in a timely manner, and if intoxication could be an issue in causing the work injury, early investigation and identification of witnesses is important.

An employer should also consult an attorney if they are considering a drug testing program as some states, including Minnesota, have complex drug testing laws.

How SFM’s helping prevent opioid addiction

SFM has experts on staff who help us protect workers from the risk of opioid painkiller addiction.

Opioids are typically recommended for short-term pain relief due to an injury or surgery. We intervene in cases when workers are still taking the addictive painkillers three weeks after surgery by sending a letter to their treating physician. Doctors have been cooperative in helping get workers off these drugs before an addiction can develop.

“Opioid addiction can destroy lives and tear families apart,” said Director of Medical Services Ceil Jung. “If we can help free an individual from addiction or prevent one from ever taking root, that’s something we can really feel good about.”