Synopsis: U.S. Employers with over 100 Employees Need to Come into Compliance To Block Covid-19.

Editor’s comment: In short, get them all vaccinated or test and test every week! Don’t get cited by OSHA, you may regret it.

Five days ago, on December 17, 2021, a federal Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) previously ordered. Therefore, OSHA’s standard mandating workplace vaccination and testing on all private employers with 100 or more employees is back on.

On December 18, 2021, the day after the federal decision was released, OSHA announced that it will not issue citations for noncompliance with the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 — so long as you are exercising reasonable, good faith efforts to be in compliance.

What should private U.S. employers with 100+ employees do? Get going!!! In the nineteen days from now to January 10, 2022:

  1. Finalize and publish your COVID-19 vaccine policy to your employees;

  2. Distribute and publish to your employees the following notices:

    1. Workers’ Rights under the COVID-19 Vaccination and Testing ETS https://www.osha.gov/sites/default/files/publications/OSHA4159.pdf

    2. Information for Employees on Penalties for False Statements and Records https://www.osha.gov/sites/default/files/publications/OSHA4157.pdf

  3. Finalize your Vaccination Roster by obtaining proof of and confirming who is fully vaccinated and who is not. This should be done in a confidential manner.

  4. Provide Paid Leave for anyone obtaining the vaccine (note: Boosters do NOT count) (up to 4 hours per shot).

  5. Permit a “reasonable amount of time” of paid leave for the recovery from any ill-effects of any vaccination dose.

  6. Mandate masks and appropriate face coverings must be worn by anyone who is not fully vaccinated at all times (unless isolated in an office with four walls and a ceiling).

Then, by February 9, 2022, you need to:

A) Require your employees to be fully vaccinated (Note: boosters are NOT relevant under the current ETS); and/or

B) Require all unvaccinated employees to submit to weekly testing.

Under the ETS, employees who are exclusively working remotely or predominantly working outside are not subject to these requirements.

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Synopsis: Armstead v. National Freight’s Jurisdictional Issue Highlights the Importance of Settlement Contract Terms. Research and Writing by Michael Palmer, J.D.

Editor’s Comment: Claimant Armstead worked for Manfredi Mushroom Cos. Inc, as a truck driver. Manfredi Mushroom was based in Pennsylvania. Armstead was involved in an MVA or truck accident in Minooka, Illinois, and filed a workers’ compensation claim in Pennsylvania. This case eventually settled. When that happened, his only listed injury on his Pennsylvania settlement contract was a right knee sprain.

Armstead thereafter filed a tort claim against the other driver and his employer in Illinois, asserting the driver’s negligence caused the accident. Armstead sought damages for injuries to the back, shoulder and knee as a result of the collision. Defendant argued “collateral estoppel” or issue preclusion applied, as Armstead’s workers’ compensation settlement contract clearly limited the injuries to a knee sprain. The trial court judge agreed and found the settlement agreement constituted a judicial admission that prohibited Armstead from alleging additional injuries.

Armstead filed a Motion for Reconsideration, which was denied, and he then appealed. Two weeks after filing his notice of appeal, Armstead filed a motion with the trial court for voluntary dismissal with prejudice with leave to refile for any claims for injuries concerning the right knee strain. The Judge ruled that prior orders dismissed any claims for injuries aside from the knee strain, and the case was dismissed without prejudice with leave to refile.

It appears Claimant did not timely refile the claim after this dismissal.

After a second notice of appeal was filed (and consolidated with the first), the Appellate Court ruled Armstead’s claims for additional injuries were barred via collateral estoppel. They further opined there was no unfairness in the ruling because Armstead had the opportunity to pursue the other injuries in his workers’ compensation claim.

The Illinois Supreme Court granted leave to appeal. In response, Defendants filed a motion to dismiss arguing the appeal was moot. The Supreme Court denied the motion to dismiss but claimed it lacked jurisdiction to rule on the issues raised on the appeal. In their reasoning, the Court stated the circuit court’s order simply resolved an issue related to Armstead’s claims but did not dispose of them. Further, they believed the circuit court judge made an error in issuing a finding that there was no just reason to delay enforcement of the appeal, because the order must terminate the litigation in order to be appealable. Our highest Court also believed the IL Appellate Court lacked jurisdiction to review the orders, and as such, jurisdiction remained with the circuit court. Finally, the Court said the action remained dismissed, as Armstead had dismissed his action in the circuit court and failed to timely refile it. Therefore, the Appellate Court’s decision was vacated and remanded for dismissal.

Justice Ann Burke dissented, disagreeing with the decision to remand the claim to the circuit court for dismissal, as she argued there was no such thing as a “claim for a right knee strain”. I agree with Justice Burke but it does appear the matter remained dismissed due to Claimant not refiling it timely.

This ruling is not only interesting for the trucking industry, but any employer in Illinois. The decision highlights the importance of settlement contract terms in Workers’ Compensation, and the effect they have on a third-party action. As this ruling suggests, workers’ compensation settlement contracts may have a controlling effect on any injuries claimed in subsequent litigation. Employers should be aware of such when settling claims.

This article was researched and written by Michael Palmer, a solid defense attorney at KCB&A. Mike can be reached any tie at mpalmer@keefe-law.com.

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Synopsis: Dr. George Holmes, Nationally Known and Respected Foot/Ankle Doc, Retired.

Editors comment: We just learned of the retirement of this great surgeon and want our WC community to know of it. He will not easily be replaced.

Dr. Holmes had a long and distinguished career. I am sure he provided care to IL injured workers and was a fair and reasonable IME doc, when that was needed. He was an Associate professor, Director Section of Foot and Ankle at Rush U. Medical Center and the Foot and Ankle Fellowship Director.

The defense team at KCB&A wishes him all the best in his future endeavors.

Synopsis: Claims Handlers/Risk Managers/Attorneys on both sides–Don’t forget about the January 1 Minimum Wage Increase For Workers In IL But Outside Chicago.

Editor’s comment: Chicago already has a minimum wage of $15 per hour at major employers and $14 per hour for small/mid-sized workers.

Outside Chicago, Illinois employers face another increase in the minimum wage. On January 1, 2022 the IL minimum wage, for companies outside Chicago, rises to $12-per-hour, and will continue to increase one dollar per hour on January 1 of each year until it hits $15-per-hour on Jan. 1, 2025.

Please note this change is IL law. It isn’t pending signature by the Governor—it is the law right now and moving forward. I don’t feel Arbitrators can ignore the law, as enacted. In my view, the change directly impacts reserves and awards/settlements for IL WC wage loss and “loss of trade” claims. Happy to explain.