Is Occupational Healthcare an Employee Right?

I live in the unique intersection of the law and healthcare, coming from a legal background where I spent a great deal of effort thinking and arguing about rights and obligations, and now living in a world of medical judgment and employer obligations. When I used to think about healthcare, it was usually in the context of disputing a workers compensation case and arguing against employer liability for a given injury or disability. Over time, my world view has moderated--become more informed.

We readily accept that employers are liable for workers compensation claims. Employees who suffer an injury in the workplace are entitled to pursue claims for temporary and permanent disability, entitled to obtain related medical care, and otherwise entitled to be 'made whole' to the extent that the legal system can afford. That's something that we take for granted now, but it's not that long ago that this was a foreign concept. The first state to establish a formal workers compensation law to protect workers who suffered job related injuries was Wisconsin, in 1911. As recently as 1948, some states did not have workers compensation protections. Think about that--just 75 years ago--just a few generations ago--a worker injured in the workplace in some states did not have a legal framework to establish their ability to be treated and compensated for the injury.

While workers compensation laws started back in 1911, it wouldn't be for another 60 years that OSHA would be established, in 1971. While some employers bemoan the regulations that OSHA enforces (as well as the state agencies such as CalOSHA), it's hard to dispute that the agency has had a significant impact upon the safety of workplace conditions and worker safety.

OSHA establishes some basic safety parameters and employee health monitoring standards, such as hearing testing requirements for loud environments, respirator fit testing to ensure that employees working in dusty or hazardous environments are offered adequate protection for their lungs, etc. Hearing tests are an interesting form of OSHA intervention. Boiled down, the goal of hearing testing (audiometric testing) is evaluating whether an employee has suffered a 'threshold shift' as a result of working in a loud environment. In other words, has the employee's hearing gotten worse as a result of their workplace. OSHA mandates hearing protection be in place to prevent this outcome.

And when a hearing loss occurs, or when an injury occurs, workers compensation laws step in and ensure that the injured or affected employee can recover for the loss they incurred in the workplace. But these programs are purely reactive. Sure, OSHA mandates hearing protection, but audiometric testing (for example) is retrospective--it compares this year's results with last year's results to see if a change has occurred. Workers compensation laws wait until an injury has occurred before intervening.

There are a lot of economic arguments to be made that employers benefit from proactive workplace/occupational healthcare programs. I can show circumstances where clients of Work Health Solutions enjoyed a 30-40% reduction in recordable injuries after implementing a proactive injury prevention program. But is relying on the goodwill of employers, or their appreciation of the potential return on investment that they will get for their dollars spent on occupational healthcare enough?

As we consider the rights that workers have, why do we wait until harms occur before taking action? Why do we wait for an injured worker, or someone whose senses have been diminished or blunted by workplace exposures, before intervening? Workers compensation payments are imperfect. Someone who is completely debilitated in a workplace injury in Illinois is entitled to up to 500 weeks of compensation at their average weekly wage--about 9.5 years of pay. If you had a choice between being healthy or being completely disabled and getting 9.5 years of pay, which would you choose?

There are proactive companies that are already making investments in safer workplaces, and investments in proactive healthcare programs designed to ensure a safer, happier, healthier, more productive workforce. They are reaping the benefits. Similarly, before 1971, there were some workplaces that were working to create safer environments for their employees to work in. But the fact that some employers took those steps didn't mean that it wasn't necessary to establish workplace safety regulations and an overseeing agency like OSHA to spread this approach uniformly throughout all industries.

Has the time come for us to recognize occupational healthcare, with a proactive approach, targeted interventions designed to protect workers and keep them healthy...to recognize this as an employee right and entitlement? An employee who suffers a cumulative loss of function in their hands as a result of years of repetitive work can bring a workers compensation claim to recover for their loss. But an employee who suffers a cumulative loss of health as a result of their sedentary, dysfunctional working environment cannot. Instead of expanding workers compensation to compensate more people after they're injured, why not take a proactive approach and protect and support workers earlier?

Should occupational healthcare be an employee right?

I may have a partisan view of this question, as someone working in occupational healthcare. That said, I suspect we will continue a progression of additional workplace interventions designed to protect the health and safety of employees. I also think it's likely that more and more collective bargaining units will start to see occupational healthcare as a key right and entitlement that they should be bargaining for--and seeking significant expansions.

So yes, occupational healthcare should be an employee right. It generates economic benefit for employers, it benefits and protects employees, it helps ensure a productive workplace, it's the natural progression of the past 100+ years of progress in our legal system's support of employees. But beyond that, it's just the right thing to do.