Presenteeism and swine flu

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Craig Donaldson interviewed Joydeep Hor, managing partner of Australian law firm Harmers on employment issues related to the swine flu outbreak.  Joydeep rightly points out that HR and OHS processes should not differentiate between swine flu and other workplace illnesses.  Hor briefly discusses the employers duty of care and how to question one’s traditional approaches to the “sniffles” at work.

Of course there is also the much under-enforced obligation of the employee not to put their work colleagues at risk – the major argument against presenteeism.

Kevin Jones

Working longer means staying healthy longer

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It is rare for anything of great relevance to occupational health and safety to come from the annual budget statement of the Australian government.  There is nothing directly relevant from the statement issued earlier this week except for the lifting of the retirement age to 67 in 2023.

Compulsory retirement age does not mean that people stop working.  If that was the case, farming and the Courts would be very different organisations.  The retirement age has more to do with financial independence or the pension eligibility than anything else but the government’s decision has focused the media and commentators on the fact that people will be working beyond traditional retirement age.

The announcement this week also supported the reality that has been increasing for many people for over a year now that the level of retirement income has plummeted because of the global economic recession.  People have a growing financial need to work, not simply a desire.

This will change the way that worker health will be managed by companies and by the individual.  Watch for even more interest in “the best companies to work for” campaigns.  In fact it should not be long before someone starts marketing on the theme of “is your health up to working into your seventies?”

This morning a package of interesting statistics were presented to a breakfast seminar held by Douglas Workplace & Litigation Lawyers.  One of the regular speakers, Ira Galushkin, provided the following Australian statistics

  • High risk employees (5+ Risks) are at work but not productive 32.7% of the time compared to low risk employees (0-2 Risks) who are not productive 14.5% of the time.
  • The productivity difference between health and unhealthy employees is therefore 18.2% or 45 days per annum.
  • High risk employees average 5.1 hours/month absence versus 2.4 hours/month for low risk employees.  This amounts to 32.4 hours (over 4 days) days per annum.
  • Healthy employees average 1-2 sick days per annum versus 18 days for those in the lowest health and wellbeing category.
  • The unhealthiest employees are productive for only about 49 hours out of each month compared to around 140 hours/month for the most healthy.
  • Poor health can account for an average 5% loss in productivity across the entire Australian workforce with the unhealthiest group reporting a 13% drop in productivity. About half [of] this is related to chronic conditions such as headaches, hay fever and neck/back pain,whilst half can be accounted for by lifestyle factors such as inactivity, smoking, obesity etc

All of this information shows the importance of workers maintaining their own fitness in order to live longer, but also to be able to present a case, if necessary, about their own productivity levels and how they have been saving their employer big dollars.

If we need to be able to work till older than previously, we will want to stay in a job we enjoy and that values us.  Some longterm health planning may be required by all of us.

Kevin Jones

Statutory liability insurance and OHS penalties

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nsca-article-0409-001Recently I wrote an article for National Safety magazine entitled “Trials and Tribulations”.  It came about because I heard about an OHS consultancy that was offering safety management services that included a component of insurance.  The insurance was explained to me as covering any OHS fines or penalties that may eventuate for the consultancy’s clients.

This combination of services is very attractive and addresses fundamental OHS questions asked by employers of different sizes – “do I comply?” and “how do I know that I have a safe workplace?”.  They’re slightly different questions but ones I come across regularly.

OHS regulators are getting better at helping small business establish a compliance benchmark through the use of compliance codes for some elements of workplace safety management – a semi-return to prescription.  However, many small business owner do as much as they can to provide a safe workplace and still get prosecuted by the OHS regulator.  This is frustrating and demoralising and in this context an insurance policy is attractive.  The insurance would cover any penalties that the business receives even if the incident that generated the prosecution was “unforeseeable”.

The National Safety article includes legal opinions and insurance company opinions that don’t quite fit.

Some of the interviews I conducted with insurance brokers did little to assuage my unease at insurance policies.  It seems to me that some insurance policies are taken out unnecessarily while other policies often exempt coverage for the very risks one thought the policy covered.  I agree with many insurers who recommend that business insurance is best handled by an experienced risk manager.  Sadly many OHS professionals do not have those skills.

In the context of the OHS consultancy, clients may be reassured by such an insurance policy but it should be an unnecessary expense.  The consultancy provides a monthly assessment service that steers the company through specific workplace hazards.  The consultancy provides some initial OHS advice and resources but no independent audits of the OHS system and the monthly monitors are not trained in OHS.

 The consultancy says that following this system will provide compliance, and maybe it does.  But even compliant workplaces can have incidents that could generate a prosecution.  It is here where the insurance policy should apply. 

The monthly assessment system needs to be diligently followed and payments kept current because non-compliance with the obligations of the system could leave an “out” for the insurer.

Statutory liability insurance, particularly for small business, needs to be examined by the OHS regulators.  Most regulators approached would not comment on the record about such policies, others were dismissive.  The article examines the legal issues further and, sadly, the article is not available online. 

If the regulators are truly supportive of small business and OHS compliance for this sector, there should be some guidance on statutory liability issued.  But like OHS professionals, regulators are not comfortable with policies that compensate (other than workers compensation).  They focus on prevention and prosecution.  It’s time to establish a broader source of OHS policy development, one which includes insurance companies, brokers and risk managers.

Kevin Jonesnsca-cover-0409

Lawyer speaks on nanotechnology risks

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A leading Australian OHS lawyer, Michael Tooma, spoke to ABC Radio on 16 April 2009.

Tooma spoke about the potential risks employers face by dealing with a substance whose hazard rating is unclear. HE says

“Employers at the moment may be unaware of the extent of the potential liability sometime down the track. …We could be facing another epidemic in our industrial history of people, large groups of people, displaying latent symptoms from current exposures that are taking place at the moment. “

The unions have repeatedly made the comparison with asbestos hazards but as  Dr Craig Cormick of the Australian Office of Nanotechnology says, in the same interview, that in the early usage of asbestos evidence of potential harm was available but not shared.

An April 2007 legal update from Tooma on the issue is available

Safety In Action Conference – Part One

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Following two short messages from international representatives of the Institute of Occupational Safety and Health (IOSH) and the American Society of Safety Engineers (ASSE), the Governor of Victoria, Professor David de Kretser AC, officially opened the Safety In Action Conference for 2009.  The Governor made several pleas or suggestions.  One was for the application of a duty of care at music concerts towards patrons just as there is a duty towards members of the public at workplaces.  Another was that the contributions to reproductive ill-health from work practices be more thoroughly investigated and researched.

Barry Sherriff of Freehills law firm provided a personal perspective on the harmonisation of Australia’s OHS Model Law.  He spoke of the benefits of enforcement policies and resource sharing that could eventuate from the model law review, should the government accept the recommendations (a long way from a done deal from the rumours in the safety profession). 

It should come as no surprise that the major benefits from the review seemed to be for lawyers even though Barry insisted that the model law improved the application of OHS for the people.  It certainly sets the context for safety to be improved but there are so many political steps in the process before safety improvements flow from the model OHS law review through to the shopfloor.  There is still a strong disconnection between streamlining OHS law and implementing safety management.  There are codes of practice, state government sign-off, trade union acceptance  just to mention a few of the potential barriers to be overcome in the very tight implementation timeframe set by the Australian government.

What took the punch out of Barry’s presentation is the current silence on the model OHS law review from the government.

Kevin Jones