I was recently struck by the news coverage regarding the deaths of a Hollywood star and a member of the House of Representatives. In each instance, the coverage was across multiple media platforms and provided significant depth. In no way do I suggest that the coverage was inappropriate or excessive. I merely note that the death of someone famous brings coverage, reflection, and perhaps inspiration.
What I lament is that American workers die on a daily basis as we continue our Herculean effort to enhance and improve workplace safety. By no means is this a new effort. And undoubtedly a great many people deserve credit for the phenomenal improvements we have witnessed in workplace safety in recent decades.
The numbers don’t lie. Workplace fatalities have remarkably diminished over the years. Despite those incredible improvements, 5,250 died on-the-job in 2018 on the job. That is about 14 per day. Those deaths do not make nearly the media impact. Some of those, undoubtedly, would have occurred despite our absolute focus and best efforts. Clearly, some of them likely could have been prevented. OSHA notes that many of these (21%) are in construction. The Bureau of Labor Statistics notes that the occupation at most risk is drivers (40%). That does not mean other occupations are risk-free.
It is particularly lamentable when we see the occurrence of a workplace death that was patently related to some violation of an existing law or rule. We see motor vehicle death that involves someone‘s failure to wear a seatbelt. We continue to see excavation accidents that involve the failure to observe trenching regulations. But, we do not see the sort of publicity outpouring regarding these workers. I would posit that each of their lives is as important as any celebrity or elected official, to someone. We can each be more focused on safety than we are. We can be more persistent, consistent, and conscious.
In the high-end profile instances, we often hear references that the deceased was someone’s “sister, cousin, daughter, mother.“ This sort of reference is to remind us that there are those who feel loss upon the stars passing. But I would posit that the same is likely true for any individual who passes in a workplace accident. They similarly leave behind friends and family; they leave behind a chasm in someone else’s life. As a society, we would do well to similarly lament their loss, and celebrate their existence.
We would do well to remember that these various government regulations and safety rules exist to promote the potential, hopefully probability, that we will each return home at the end of the workday. We would do well to slow down and remember the simple efforts available to protect ourselves, and our coworkers around us.
We need to focus on protecting our personal safety. Each of you should presently begin your workday preparation by asking the following questions:
(1) do I have a cough, sore throat, fever, Loss of taste/smell, or other signs/symptoms of illness?
(2) have I been in a high-risk situation in the last 24 hours (engaged with others who are not practicing social distancing, masking, and other appropriate protocols)?
(3) have I been in contact with someone who has been diagnosed with COVID-19, or who exhibited outward signs/symptoms of COVID-19?
If you answer these questions affirmatively, please alert us ("file a motion" is always an option, Rule 60Q6.115(1)). If you answer these questions with a "yes," we need to avoid your presence in the OJCC office. And, if you answer "no," then visit the district office, and later (within the following 14 days) answer "yes" to question (1), we need to hear from you. Let the district office know if you later have symptoms or have been diagnosed. If an office has been exposed, it is important for us to know.
This is not to increase anyone’s COVID-19 stress. I realize we are all concerned about this malady, and the potential it has to affect us and our families. We have to be similarly concerned about the effect it could have on our coworkers. Human-to-human contact is a significant risk in the spread of this illness.
Please avoid bringing this potential to an OJCC office. We have processes in place to afford due process and claims facilitation without posing undue risks. We have telephonic tools, Internet tools like ZOOM, and beyond. We have the ability to mediate and adjudicate your issues without physical presence. Yesterday my imagination was even challenged to conduct hybrid a proceeding with lawyers present in person and witnesses by ZOOM. Easier to say than do, but we figured out how it can be done; figured it out because a lawyer imagined it, asked for it, and challenged our imagination. We should strive for that kind of interaction and cooperation.
When you decide to enter our office, we need you to address the three questions above. We need you to focus on whether your personal presence is necessary. Are you safe for those around you, or are you presenting a risk? Ask the questions first.
When lawyers do not follow the rules, they can create risk. The unique Coronavirus ("2019-nCoV”) can live for days upon in intimate items such as documents/papers. Despite that, lawyers persist in bringing documents to OJCC offices to share or even to file. In one instance, we had one lawyer show a piece of paper to multiple OJCC staff. No one refused the paper as it was passed around. That was unwise and unnecessarily risky. Notably, the rules require all filings to be electronic, Rule 60Q6.108. Generally, if all lawyers followed the rules, "what a wonderful world it would be" (July 2020). But this one is about safety. It is important. Please do not bring paper documents to share at mediation or hearing. All documents necessary for proceedings should be electronically filed. Scan them at your office, transmit them to our office, and avoid the potential for virus transmission.
Do not bring spectators to proceedings. We know that a work accident can be life-altering. We know that litigation proceedings can be unfamiliar and uncomfortable. Having one's spouse, significant other, friend, or confidant present for mediation or hearing can be comforting and helpful. However, our facilities are of limited size, social distancing is of critical importance, and we all should strive to limit the presence of individuals. Bring those who are needed (witnesses, translators, etc.). But remain conscious of the need to limit attendance. Others may instead be available by phone. They may wait outside the office to be consulted as needed. But, we would appreciate minimizing the volume of people that come inside the district office.
For anyone that you deem absolutely necessary (witnesses, etc), ask them the three questions enumerated above. Ask the questions. Make it a point to stress that you are looking out for the health, safety, and welfare of other proceeding participants, yourself, the OJCC personnel, and in effect the entire Worker’s Compensation system and community.
You must follow any local ordinance or order to socially distance and utilize personal protective equipment (PPE). When in OJCC offices, this includes the appropriate use of facemasks, unless specifically directed otherwise by the presiding mediator or judge. I admit that I find masks constricting, uncomfortable, and distracting to wear. However, I will wear one in your presence to protect you, to respect you, to minimize risk. Regardless of how you feel about PPE, I ask that you respectfully and patiently do the same.
We are striving to develop processes to facilitate remote check-in for events. Whether by text message or telephone, we hope to alleviate the need for you to enter our office merely to say “I’m here," and then wait in the waiting room. We will strive for a process that allows you to wait in the comfort of your vehicle or outdoors until our mediators and adjudicators are actually ready for your presence. For live proceedings, you should consider doing the same with witnesses (“I will phone you when I need you to come into the building and testify“). But, please consider having witnesses appear by Zoom, deposition (even video), or telephone. How can you minimize risk to yourself and others?
Our community's diligence and imagination are critical. Our mutual consideration is critical. Our individual and collective health is critical. We are a community in fact. We need each other to resolve and adjudicate disputes, while all remaining healthy and available for the next client, claim, or proceeding. We need to do our jobs and not take risks nor take risks home to our families.
Your thoughtfulness, helpfulness, and community concerns are greatly appreciated. Email me if you have suggestions to make the process healthier, safer, and less stressful. We need your help. We need you to ask the questions. Do so daily. Think of yourself, of the community, and of those with whom you interact.
