Regulatory Roundup, January 26

Regulatory Roundup is a weekly compilation of employee wellness and safety news.

Occupational Safety and Health Administration (OSHA)

Reminder to post 2017 OSHA Form 300A by Feb. 1

Employers required to maintain injury logs must post a summary of the injuries and illnesses (OSHA Form 300A) recorded from the previous year. The summary must be posted in a visible area of the workplace by Feb. 1 until April 30…MORE.

National Highway Traffic Safety Administration (NHTSA)

NHTSA launches new drugged driving initiative

NHTSA has launched a new initiative to combat the growth in drugged driving incidents. While driving under the influence of drugs is against the law, NHTSA views the national opioid epidemic and legalized marijuana in some states as a contributing factor to drugged driving incidents. NHTSA is hosting a summit on March 15 to lead the conversation on ways to address this issue…MORE. 

Studies, resources, trends, news

Smoking rates continue to decline

A study from the CDC found that cigarette smoking among U.S. adults declined from 20.9 percent in 2005 to 15.5 percent in 2016, continuing a downward tred over the last several decades. The CDC points out that while rates have declined, nearly 38 million Americans still smoke…MORE.

Accidental deaths on the rise

The National Safety Council found preventable deaths rose by 10 percent, reaching a record high with a reported 161,274 deaths in 2016. These rates indicate that every three minutes, an American is killed by a preventable injury. Drug overdoses and motor vehicle accidents contributed to the increase…MORE.

Study of asthma deaths related to occupational exposures

The CDC released a study into asthma related deaths and suggests that 11 to 21 percent of asthma-related deaths might be attributed to occupational exposures. Deaths may have been averted with respiratory protection…MORE.

Independent contractor or employer? Webinar recap part II

Safety services clipboardEarlier this week, we shared the first part of our webinar recap on the differences between an independent contractor and an employee. We covered the definitions and common characteristics of independent contractors and shared a questionnaire to help you tell the two apart.

Keep reading for part two of the independent contractor or employee series, where you’ll learn more about contract labor, 1099s, and applicable DWC forms.

A quick recap of some basic definitions: an employee is someone whose work an employer exercises direct control over and for whom an employer has extensive wage reporting and tax responsibility. An independent contractor is often self-employed, bears responsibility for their own taxes and expenses, and is not subject to an employer’s direction or control.

For workers’ compensation purposes, a worker is either an independent contractor or an employee. However, the contract labor relationship can be complicated, so keep reading to learn about the Texas Workforce Commission’s (TWC) position.

Contract labor

According to the TWC, contract labor, which means the use of independent contractors, is a widely misused term. This is an important point because a hiring contractor may be subject to premium charges on their workers’ compensation policy if their subcontractors are not determined to be bona-fide independent contractors.

The law creates a presumption of employment and places the burden of proving that someone is in fact an independent contractor and not an employee on the employer. The important consideration is the underlying nature of the work relationship, not how the parties identify themselves.

Not all 1099 recipients are independent contractors

While many employers issue 1099 forms to their independent contractors, a 1099 alone does not confirm that a worker is an independent contractor. Determining if a worker is an independent contractor has to do with the nature of his or her relationship with an employer. The worker must meet the labor code test requirements, which you can review in part one of the webinar recap. If they are determined to be an employee, they are afforded workers’ compensation rights.

DWC forms
DWC forms provide documentation of the working agreement between parties, but they do not define the relationship. Below are two forms that are often used by employers to document the working relationship, but remember not to rely solely on these forms and to instead evaluate the nature of the working relationship. We suggest referencing the questionnaire in part one to help you determine if a worker is an independent contractor or employee.

  • DWC-81
    The DWC-81 form is an agreement between the general contractor and subcontractor to provide workers’ comp. Under this agreement, the general contractor furnishes workers’ comp to the independent contractor and the independent contractor’s employees, even if the independent contractor carries workers’ compensation on his or her own. By agreeing to this, the general contractor is shielded from liability for injuries to those subcontractors. The form is used for that purpose, but isn’t the determining factor for telling an independent contractor and an employee apart.
  • DWC-85
    The DWC-85 form is an agreement between a general contractor and subcontractor to establish an independent relationship. It is used to verify the independent relationship and the intent of the parties to exclude the independent contractor from the general contractor’s workers’ compensation insurance policy. It should not be used for independent contractors without employees.

The absence or presence of either form does not determine an independent relationship. If the underlying relationship is not determined to be independent, neither form offers protection from liability.

You can revisit part one of this webinar recap to review the definitions, common characteristics and questions to ask to help you spot the difference, or watch the webinar below.

 

Texas Mutual hosts webinars regularly for our agents and policyholders. Visit our webinar archives to see other presentations.

What’s the difference between an independent contractor and an employee? Webinar recap part I

Construction workersLast month, we hosted a webinar for our agent community to discuss the difference between employees and independent contractors. It’s a hot topic that can cause a lot of confusion, but it’s important to understand since your workers’ compensation premium is partially determined by the number of employees you have and their associated payroll. In this webinar recap, we’ll help you learn how to spot the differences and classify theses different types of workers properly.

First we’ll cover why it’s important to know the difference, the definitions of an independent contractor and common characteristics of this title. You’ll also see a questionnaire to help you make the distinction.

Why it’s important
A company’s workers’ compensation premium is determined by a few factors, but one of the most important is the number of employees. For some industries, a number of the people who perform work may not be employees, but rather independent contractors. It’s important to correctly identify your workers’ roles, so that you know your obligations to your workers in the event of a workplace injury.

Independent contractor definitions
To understand the difference between an independent contractor and an employee, we need to unpack the independent contractor definitions, which are determined by the Texas Labor Code.

The first definition applies to those working on residential structures and small commercial structures that do not exceed three feet in height or 20,000 square feet in area. According to TLC 406.141, “independent contractor” means a person who contracts to perform work or provides a service for the benefit of another and who:

  • Is paid by the job and not by the hour or some other time-measured basis
  • Is free to hire as many helpers as desired and may determine the pay of each helper, and
  • Is free to, while under contract to the hiring contractor, work for other contractors or is free to send helpers to work for other contractors.

The second definition applies to those working on large commercial jobs. According to TLC 406.121, “independent contractor” is a person who contracts to perform work or provide a service for the benefit of another or who ordinarily:

  • Acts as the employer of any employee of the contractor by paying wages, directing activities, and performing other similar functions characteristic of an employer-employee relationship
  • Is free to determine the manner in which the work or service is performed, including the hours of labor or method of payment to any employee
  • Is required to furnish or to have employees, if any, furnish necessary tools, supplies, or materials to perform the work or service, and
  • Possesses the skills required for the specific work or service.

Common characteristics of independent contractors
The Texas Workforce Commission (TWC) offers an Independent Contractor Test to help determine if someone is an employee or independent contractor. Texas Mutual uses this test as just one part of our evaluation to help interpret the Texas Labor Code provisions.

Below you’ll find a quick reference of the common characteristics of independent contractors from the TWC test to help you recognize the differences. It’s important to note that no single factor makes the determination, and not every situation will involve each factor.

Typically, an independent contractor:

  • Does not receive instructions
  • Uses his or her own methods and does not need to receive training
  • Has significant investment in their independent business
  • Does not always personally complete services
  • Has control of their own assistants
  • Is hired for a specific job and there is no continuous relationship
  • Sets own hours of work
  • Does not receive progress reports
  • Receives payment per job
  • Supplies their own tools
  • Can realize profit or loss
  • Works for multiple companies
  • Is not exclusive to one firm
  • Has the right to choose location (typically)
  • Sets their own sequence of work
  • Can advertise their business as available to the public
  • Cannot be terminated at will if they meet their contract
  • Is liable for non-completion or breach of contract

Alternatively, employees are more likely to receive instructions on when, where, and how to perform the job. Employees are often trained by a more experienced person, or are required to attend meetings and take training courses. Unlike an independent contractor, they do not have an investment in the business. An employee is dependent on the employer for the work. They are often subject to non-competition rules and can be let go at will.

Questions to ask
Here are some important questions you should ask to help you come to a determination:

  • How is/are the independent contractor(s) paid? Are they paid by the job, hour, or by contract?
  • Is the independent contractor able to hire others to perform work? If yes, who pays the others hired?
  • Does the independent contractor work for anyone else?
  • Does the independent contractor have their own employees?
  • Who determines how the work is performed?
  • Who provides the tools, supplies, or materials?
  • What skills does the independent contractor possess?

Click here to read part two of this series where we cover what you need to know about 1099s and DWC forms for independent contractors. You can also watch the webinar for yourself, or see what’s new in employer webinars.

Regulatory Roundup, January 19

Regulatory Roundup is a weekly compilation of employee wellness and safety news.          

Occupational Safety and Health Administration (OSHA)

Mugno receives second approval from HELP Committee

Scott Mugno, Trump’s nominee for assistant secretary of labor, was approved for the second time by the Senate Health, Education, Labor and Pensions Committee. His nomination now awaits full Senate confirmation…MORE

Injury and illness summary must be posted by Feb. 1

Employers are reminded that their company’s 2017 OSHA Form 300A must be posted in a visible location by Feb. 1. This form summarizes the OSHA 300 injury and illness log that most employers are required to maintain…MORE

Studies, resources, trends, news

Small businesses could increase recruiting edge with workplace safety

A survey of small business employees found that about 17 percent had never received workplace safety training and about 40 percent were not aware of the required OSHA signage being posted in their workplace. Workplace safety is one of the top factors considered when small business employees evaluate a new job. Four tips for maintaining workplace safety include: establish a culture, assess potential hazards, educate and remind employees about safety practices and enforce, listen and evaluate safety procedures…MORE

Centers for Disease Control: watch for these basic and emergency flu symptoms

During this year’s active flu season, it’s important to learn about symptoms and educate your workforce. The CDC provides information on basic and emergency symptoms as well as treatment guidelines…MORE

Regulatory Roundup, January 12

Regulatory Roundup is a weekly compilation of employee wellness and safety news.              

Occupational Safety and Health Administration (OSHA)

OSHA struggles to fill inspector positions

As of Oct. 2016, OSHA had lost 40 inspectors with no effort underway to fill the vacancies. Since then, OSHA has acknowledged the need for more manpower, hired several inspectors and is currently recruiting over 24 more. However, the previous hiring freeze and uncertainty about future funding are making it more challenging to staff the positions…MORE

Trump resubmits Scott Mugno’s nomination

Trump has resubmitted Scott Mugno’s nomination to head OSHA as the assistant secretary of labor. This move was required due to the Senate not confirming the appointment before the end of the legislative term last month. Mugno will once again appear before the Senate’s Health, Education, Labor and Pensions Committee to present his case…MORE

OSHA fines increase to adjust for inflation

The maximum OSHA and Mine Safety and Health Administration penalties have been increased about one percent due to inflation. This introduces a new maximum penalty of $12,934 to several OSHA violations: serious, other than serious, failure to correct and violation of posting requirements. Willful and serious violations can now be penalized up to $129,336…MORE

Studies, resources, trends, news

Seattle business owner faces manslaughter charges after trench collapse

The owner of a Seattle construction company was charged with second-degree manslaughter stemming from a 2016 incident in which one of his employees died in a trench collapse. This is the first time that a workplace fatality in Washington has led to a felony charge, and shows employers that they can be held criminally accountable. The owner also faces a gross misdemeanor for violating a labor safety regulation, resulting in death…MORE

Workplaces see expansion of health and wellness offerings

According to a survey of HR managers, about 66 percent of companies have broadened health and wellness options in the past five years. Several innovative ways companies are focusing on wellness were noted, including providing free massages, offering onsite personal trainers and offering onsite exercise and cooking classes. Based on these trends, not offering health and wellness benefits could put a company at a disadvantage in recruitment and retention…MORE

How to fulfill your new year’s resolutions in the workplace

dumbbell and apple with measuring tapeIt’s a new year, and gym-goers are filled with high ambitions for a healthier lifestyle. It’s likely some of this determination will taper off, so we are sharing practical solutions that are easy for you and your employees to sustain year round. Wellness is one of the best investments you can make. Keep reading to find our top tips for wellness and how you can make a difference in your workplace in 2018.

Healthy choices

  • Drink eight glasses of water a day. Encourage your employees to bring water bottles to work. Consider providing them with company-branded ones to help them achieve their recommended water intake.
  • Eat more fruits and veggies. Try providing complimentary fruits or vegetables or recruit team members to help stock the fruit bowl.
  • Skip the soda. Lay off the sugary beverages and try offering sparkling or infused water options in vending machines or during company events.

Get active

  • Opt for the stairs. Add posters in the stairways that commend your employees for taking the extra steps and posters in the elevators that encourage them to make the change.
  • Move more. Try leading group stretch breaks or conduct walking meetings.
  • Team effort. Consider finding a group 5K or walking challenge to give your employees a common goal to work toward.

Strike a balance

  • Quality time off. Help your employees maximize their time away from work by letting them disconnect when they are off duty.
  • Give back. A great way to boost morale and build comradery is through community volunteer events. Try organizing a community giving event at a local soup kitchen or make care packages to donate to area shelters. See some of our TXM for Texas projects at Texas Mutual for inspiration.
  • Stay away if you’re sick. A healthy workplace is a more productive one. Encourage your employees to take the time they need to recover from illnesses to help prevent the spread of germs.

As a leader in your organization, you have the opportunity to set an example for your employees. Your actions speak volumes about the tone and vision you have for your employee’s wellness in the new year. See why wellness pays and find more tips for a healthier workplace.

From all of us at Texas Mutual, we wish you and your employees a prosperous and healthy 2018.

Safety focus on caught-in/between hazards

Construction assessmentWorking with any type of equipment can expose your workers to safety risks, and one of the most common hazards in the construction industry is getting caught in or between equipment. Oftentimes, these types of incidents are deadly. According to Bureau of Labor Statistics (BLS) data, contact with objects and equipment was the cause of almost 15 percent of workplace fatalities in 2014. Caught-in/between incidents are also one of OSHA’s Focus Four hazards for the construction industry.

Keeping your workers safe takes working smarter and safer through consistent training and education. We’ve gathered some of the best resources to help you avoid these incidents in your workplace. Get started with five quick tips, in addition to coordinating e-Learning courses and other resources below.

Safety tips

  1. Never place yourself between moving equipment and an immovable structure or other equipment.
  2. Always power down equipment when you exit a vehicle, and set the parking brake, if available.
  3. If the vehicle or equipment is on an incline, chock the wheels.
  4. Flaggers or spotters should wear high visibility clothing.
  5. Vehicles or equipment should only be operated on roadways or grades that are safely constructed.

Texas Mutual’s Safety Services Support Center offers more than 2,000 resources to our policyholders in the form of e-Learning training courses, videos, training presentations, and more. Below you’ll find a list of relevant courses to help your workplace avoid caught in or between hazards.

e-Learning courses
e-Learning is Texas Mutual’s newest interactive training tool. With e-Learning, employers can assign training, view results, send announcements and keep records easily. Here are four recommended courses to help you avoid this Focus Four hazard:

  • Construction safety
  • Equipment hazards
  • Heavy equipment safety
  • Heavy equipment visibility

To access e-Learning, log in to your texasmutual.com account, select the Safety tab and choose e-Learning.

You can find more Focus Four resources on the OSHA website. If you have questions, we encourage our policyholders to call our safety services support center at 844-WORKSAFE (967-5723) between 8 a.m. and 5 p.m. CST.

Regulatory Roundup, January 5, 2018

Regulatory Roundup is a weekly compilation of employee wellness and safety news.               

Occupational Safety and Health Administration (OSHA)

Industry challenges to silica rule are rejected

Industry groups petitioned for review of five issues regarding the silica rule that went into effect last year. Their objections centered around whether there was substantial evidence to support the stricter regulations, but all five objections were rejected by the U.S. Court of Appeals…MORE

Second annual Safe + Sound Week scheduled for August

The second annual Safe + Sound Week has been scheduled for Aug. 13-19. OSHA, the National Safety Council and NIOSH are among the organizations teaming up to promote awareness. Employers are encouraged to host events and promote safety and health programs during that week…MORE

Studies, resources, trends, news

Trump administration pushes for lessening of offshore drilling regulations

The Bureau of Safety and Environmental Enforcement published new regulations for devices used during offshore oil production. Many oil and gas officials applauded the decision, and have previously said that the Obama administration overreached on the rules put in place after the Deepwater Horizon disaster. The proposal does not reverse all existing regulations, but minimizes some of the industry’s obligations. There is a 30-day comment period on the proposed changes…MORE

Tips for fall protection

Four out of the top 10 most common OSHA violations during 2016 involved falls. Occupational Health & Safety magazine posted an article explaining different strategies for fall protection training and what types of challenges manufacturers are facing…MORE

Safety infographic released for the oil and gas industry

The fatality rate in the oil and gas industry was seven times higher than any other industry from 2003-2010. Graphic Products has released an informative infographic showing statistics and safety tips…MORE

WorkWell, TX: Your first stop on the way to wellness

At Texas Mutual, we are committed to helping our policyholders prevent workplace injuries, but if the unexpected happens, we are by your side. One of the ways we do that is through our health care network option, which allows us to source the highest quality medical providers who share a commitment to helping your workers return to a productive life. That way your workers have access to quality care when they need it, and we help you manage your claim costs.

We recently launched our new health care network, WorkWell, TX, which we built with you and your injured workers in mind. Watch the video below to learn more.

If you were already enrolled in the network option, you were automatically enrolled in WorkWell, TX as of January 1 and you can expect a smooth transition. Reporting injuries, locating providers and working with Texas Mutual will work in the same way as it did in the Texas Star Network. And, you’ll still receive a network discount. Here’s what you should know:

  • All injuries occurring January 1, 2018 or later will be treated in the WorkWell, TX network, while injuries that occurred before that date will continue to be treated in the Texas Star Network.
  • Our provider directory is available online and through our network app. Click here to find a WorkWell, TX provider.
  • If you have not already, download and print the English or Spanish version of the Notice of Network Requirements. Post this packet in a common area where your employees will see it.
  • You have until December 31, 2018 to have your employees sign new network acknowledgement forms either with paper copies or through our e-Learning tool. Watch this video or review this information sheet to learn how to use e-Learning to complete the acknowledgement forms. You can find the form on our website to print paper copies.

In WorkWell, TX, Texas Mutual contracts directly with providers, allowing us to select those who offer the highest quality care and are focused on helping your workers.

Enrolling in the network is an option available to all Texas Mutual policyholders. We look forward to offering an exceptional level of care and even better results in WorkWell, TX. Talk to your agent if you are interested in joining and find more information on texasmutual.com.

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