New OSHA Guidance for Implementing a COVID-19 Workplace Prevention Program

The Occupational Safety and Health Administration (“OSHA”) has finally published updated guidance on implementing safe workplaces during the COVID-19 pandemic.  On January 29, 2021, the guidance titled  “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was published. (U.S. Dept. of Labor – OSHA) “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

It is important to note that this remains only general guidance from OSHA.  The guidelines do not create a standard or regulations that legally obligate employers to comply.  The below guidelines have been issued to assist employers in either continuing to provide or transitioning into a safe COVID-19 workplace.  OSHA has indicated that these guidelines can be used to mitigate the spread of COVID-19 and implement proper protection procedures.  The Guidance provides that the following measures should be taken:

  1. Create a workplace coordinator responsible for COVID-19 issues on the employer’s behalf.
  2. Identify where and how workers might be exposed to COVID-19 at work, including a thorough hazard assessment identifying potential workplace hazards related to COVID-19.
  3. Identify a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principals of the hierarchy of controls: elimination/substitution, engineering controls, administrative controls and safe work practices.
  4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
  5. Establishment of a system for communicating effectively with employees in a language they understand.
  6. Educating and training workers on the employer’s COVID-19 policies and procedures, which includes having accessible formats and in a language they understand.
  7. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine.
  8. Minimize the negative impact of quarantine and isolation on workers.
  9. Non-discriminatory isolation of workers who show symptoms at work.
  10. If not already, the indoctrination of enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
  11. Provision guidance on screening and testing.
  12. Recording and reporting COVID-19 infections and deaths to OSHA.
  13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Not distinguishing between workers who are vaccinated and those who are not.

If you have any questions about employment or workers’ compensation issues, please contact us!

Where’s my DIME?

One of the main strategies in workers’ compensation claims involves the selection of a particular venue for the DIME process. For numerous years, Rule 11 was silent on the selection of a location for the Division IME. The party requesting the DIME had the option of selecting any venue in Colorado for the appointment to take place. From there, the DIME unit would select 3 physicians in the geographic location that the selecting party indicated on its Application and the DIME process would move forward. Essentially, any part of Colorado was “fair game” as the location in which to have a DIME. From a strategy perspective, selecting a specific geographical location for the DIME to take place could prove advantageous for the requesting party depending on the pool of physicians within that location. For example, it was not uncommon for residents from Fort Collins to request a DIME in Colorado Springs. One of the most common requests involved residents of Grand Junction traveling to Denver for their DIME appointment.

Respondents in certain geographical regions also had the strategy of requesting a pre-emptive DIME on a claim in which the treating physician placed the claimant at MMI with no impairment. For example, if a claimant in Colorado Springs was placed at MMI without impairment and was almost certain to request a DIME in Colorado Springs, Respondents would have the option of going for the DIME themselves as a pre-emptive measure and to take away claimant’s right to select a particular, more liberal venue to have the DIME.

Rule 11 is still silent on the venue for a DIME to take place. However, the recent changes to the Application for a DIME have added a specific portion to the Application form regarding venue selection. On the Application for a DIME, it states as follows, “preferred geographical location of examination. (The location in which the claimant resides may take precedence over the preferred location).” Of note is the use of the word “preferred” and specifically noting that claimant’s residence may take precedence instead of the preferred location selected. This is a new change that the DIME unit is focusing on and it appears in the past several months that the DIME unit is using a reasonableness standard when selecting physicians in a particular geographic location. For example, Respondents may want to challenge a treating physicians’ rating from the western slope and request a DIME in Denver. Gone are the days in which a three-doctor Denver panel was guaranteed. Instead, the DIME unit may put a combination of Denver and western slope physicians on the panel for selection. The process involves many variables as to which physicians are on the panel, including but not limited to, available physicians, specialties, current physicians performing DIMEs, timing, etc.

This new approach by the DIME unit is a topic of discussion and poses many issues. One issue is whether the venue preference will be applied equally to both parties and if bias is removed from the panel selection process. If Respondents are getting physicians from a select geographical location but claimants are not, (and vice-versa), it doesn’t present fairness to the DIME process for both parties. Another issue is the amount of physicians present in one geographic location and whether the pool of DIME physicians throughout the state are performing examinations routinely. For example, if Colorado Springs is frequently selected as a venue, and physicians within that pool are performing DIMEs more frequently than other physicians, does it eliminate the concerns that the new changes to the Rule hoped to address in having a wider variety of physicians participate in the process? Yet another issue is either party wanting a specific venue due to a fact specific reason in the claim, and not particularly receiving it despite the request of one or both parties. The new Rule allows the parties to agree to a number of issues, including the physician to perform the DIME and the cost. However, can the parties agree to a venue when there is a disagreement to the physician and cost?

Major changes to any Rule are usually met with many questions about its implementation. Venue selection for the DIME process has always been a strategic focus for both parties and now poses even more questions based on the changes to the Application for DIME. Now that the DIME unit is exercising some control over the venue selection, it may change the focus of the strategy for the DIME in a different direction. Respondents may want to rely upon the fact that a DIME panel may not entirely be composed of physicians within one region, but instead, focus on the potential for obtaining a panel with more variety that could ultimately impact the case in different ways. Employers and carriers may want to focus the fight on a different aspect of the DIME such as cost. In light of the changes to Rule 11, it is important to discuss the DIME strategy with counsel and the client to ensure that all of the facts and potential options are being discussed to best forward the claim to resolution. Always remember that the Prehearing Unit retains jurisdiction to resolves issues pertaining to the DIME. Once a Motion is filed, the DIME is held in abeyance pursuant to Rule 11. If the parties are able to agree on the venue, it may be worthwhile to reduce the agreement to a stipulated Order and provide a copy of it to the DIME unit so that there is no question as to which physicians can be selected from a certain geographical region.

If you have any questions regarding the changes to the Rules or the updated statutes, feel free to contact us.