Tuesday, December 25, 2018

Stress and the Workplace

The Law Prof Blog recently provided a review of a law review article published by Lewis & Clark Law Review: Compensating Injury and Disease Caused by the "Sedentary Workplace." The authors advocate an expansion of workers' compensation to provide coverage for a variety of medical issues that are not "injury by accident" (the original intent of workers' compensation), nor even "occupational diseases" (one of the worker benefits added to various systems which some allege altered the "grand bargain" with no corresponding benefit for employers). 

The advocates encourage employer intervention in the general wellness of employees upon the premise that workplaces' sedentary nature is notably more prevalent today. Reading that post reminded me of a recent article published by the British Broadcasting Company (BBC): How your Workplace is Killing You.

The BBC recites a variety of instances in which workers died. Each death, in some degree, was attributed to "workplace stress," overwork, or shock resulting from some notable change in the workplace. In addition, it cites a European study concluding that 275 "million working days lost annually from absenteeism 'are stress related.'” Stress, it seems, is a pernicious process. 

This perhaps merges with the hypothesis of the Lewis & Clark article: If Sitting is the New Smoking, What does this Mean for Employers? A Look at Potential Workers’ Compensation Claims in the Sedentary Workplace, 22 Lewis & Clark Law Review 965 (2018), equating lack of activity with smoking. The BBC illustrates the threat of stress, noting "an analysis of almost 300 studies found that harmful workplace practices were as bad for mortality, and as likely to lead to a physician-diagnosed illness, as second-hand smoke." Thus, to the extent sitting is the new smoking, one might wonder if simultaneously stress is the new cancer? 

From whence does the stress come? The BBC cites a litany of "long working hours, work-family conflict, economic insecurity arising from job losses, not having regular or predictable work hours, an absence of job control and, in the US, not having health insurance." As an aside, that last one makes you wonder. There was a time that everyone in the US was mandated to have health insurance. Obamacare Facts says this was true from 2014 through 2018. According to the Kaiser Family Foundation, some 28 million remained uninsured in the midst of that mandate. 

Returning to the BBC and stress, some contend that "the workplace has become an important public health problem." It notes that "chronic disease" kills people, and that "chronic disease comes from stress and the unhealthy behaviors such as smoking, drinking, taking drugs, and overeating that stress induces." From there it summarizes that "numerous surveys show that the workplace is a leading cause of stress, and it is thus one important cause of the health care crisis." 

The BBC author contends that "workplace stress costs the American economy some $300bn" annually, that "harmful management practices" lead to 120,000 "deaths annually in the US," and that stress causes "extra health-care costs" of $190bn annually. From these contentions, it concludes that the "workplace" is the "fifth leading cause of death, worse than kidney disease or Alzheimer’s." 

The good news, according to the BBC, is that this can all be fixed reasonably easily. It contends that, quite simply, "work practices that are bad for people don’t even help the company." Thus, stress is not necessary. The easy answer is simply "giving people more control over how and when they do their jobs." This will purportedly decrease stress, lead to happier and therefore healthier employees. These employees will purportedly be more proficient, more productive, and less likely to quit. 

The BBC author also advocates that employers should not cut jobs. Decreasing or downsizing creates stress. Furthermore, the economy should not encourage the “gig economy.” These gigs lead similarly to "economic insecurity." Furthermore, employers scheduling employees to work only when they "will be needed means that workers often face fluctuating incomes and don’t have much ability to arrange for coping with family responsibilities." It is more logical, in the author's perspective, for companies to schedule employees with the focus on employee expectations and needs, and ignore whether those employees are actually needed for work. If sales or demand decreases, the employers should nonetheless keep all staff working in this perspective. 

The BBC encourages that business, that is workplaces, should balance the needs of "shareholders, customers, employees and the community." This, the author refers to as “stakeholder capitalism.” The author laments that "stakeholder capitalism," once prevalent, has evolved (or devolved) to a focus in which "shareholder interests dominate." The focus of the business it seems has become singularly about the purpose of starting a business, to make money for the owner(s). Instead, the author advocates for a return to a spirit of "stewardship" in employer leadership. The author cites a variety, though seeming minority, of businesses in which this broader "stewardship" is exhibited. 

How do these implement a diminished stress? Some examples are:
People get paid time off and are expected to use it.
Managers don’t send e-mails or texts at all hours.
People work, go home and have time to relax and refresh.
Organizations offer accommodations so that people can have both a job and a family life.
People are treated like adults and have control over what they do and how they do it
(People are) not micromanaged. 
The World Health Organization (WHO) has also addressed stress in the workplace. It provides analysis of what is work stress. It proceeds to define a healthy workplace conscious of the impact of stress. The BBC, it seems, is not alone in its call for Utopian environs.  

The BBC author contends that employers, and industry as a whole, are financially incentivized to decrease stress (figures above); that there is value in assuring "employees are as healthy as possible." He admires companies that provide health insurance and promote lifestyle balance. The author advocates that "people need to choose their employer not just for salary and promotion opportunities, but on the basis of whether the job will be good for their psychological and physical health." That is, essentially, that employees should seek employment that minimizes their stress, balances their life, and affords them the benefit they seek. This emphasis on the individual and making choices seems at odds with the article's theme. 

He concludes that profit should not be the only goal of business. Instead, business' success should be measured in the "health of their workforce." In a holistic and socialist (or even communistic) spirit, business should be about the workers in his perspective. And, since he perceives that business is not able to see the obvious benefits he recognizes and espouses, "governments . . . need to focus on the workplace." The workplace causes stress, and "workplace stress is clearly making people sick" unnecessarily. Therefore, he advocates it is time for government to step in and remove the stress. 

This blog recently focused momentarily upon the monumental task of making American workplaces safe, a task upon which the government focused with the passage of the Occupational Safety and Health Act in 1970. The mandate handed to the Occupational Safety and Health Administration (OSHA) is responsible for a vast volume of workplace definitions, rules, and regulations. According to its own data, OSHA inspects 39,000 workplaces annually. The United States Census Bureau reports that there are 6,795,201 workplaces (in 2015). OSHA is inspecting about 6/10ths of one percent (.573%) of workplaces annually. Represented another way, it would take OSHA about 174 years to inspect all of the workplaces in America. In short OSHA has not come close to fulfilling its present mandate. 

And, by what standard would it define and enforce stress standards? OSHA has established limits on "safe exposure limits" regarding a variety of chemicals in the workplace, discussed in a Princeton post on January 2017. These may be "permissible exposure limits" (PEL), "recommended exposure limits" (REL), or "threshold limit values" (TLV). The PEL is a "safe level of exposure." REL are more "guidelines," than rules, and focus on exposure for "workers over the course of their working life." TLV are similarly guidelines, used as supplemental information "not as a freestanding exposure limit." What would be the PEL for stress. Would testing be sporadic and anecdotal (like blood pressure or blood sugar that can fluctuate throughout a day)?

In Florida, the effects of those federal standards have been discussed in various appellate decisions. For example whether “failure to provide a safe work place or to follow OSHA guidelines does not constitute an intentional tort.” Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986). The definitions promulgated by OSHA have been relied upon by Courts. Fossett v. Southeast Toyota Distributors, LLC, 60 So. 3d 1155 (Fla. 1st DCA 2011). Those definition's relevance has also been questioned. Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Fla. 4th DCA 1988)("what possible relevance could the OSHA definition of employer have?"). 

The safety regulations promulgated by OSHA have been applied to reduce benefits due an injured worker. McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177 (Fla. 1st DCA 1982). Would the fact that a worker was exposed only to some "safe" or "recommended" level of some substance preclude the award of state workers' compensation benefits for resulting injury? That seems unlikely. OSHA compliance is not mentioned in the cases often cited as controlling occupational disease, see Lake v. Irwin Yacht & Marine Corp., 398 So. 2d 902, 904 (Fla. 1st DCA 1981). 

The defining and enforcement of stress standards might well be a morass, and potentially of limited efficacy and enforcement. 

Is it practical to define and measure stress? If one accepts the BBC author's conclusion that conflicts between work and home commitments cause stress, is it demonstrable that work is more responsible for that conflict than is home? Is it rational to suggest that government "focus on the workplace" as regards stress, in some effort to ameliorate or eliminate stress from the workplace? If so, in light of the challenges OSHA has already illuminated, what volume of researchers and writers will be required to define and draft such regulation? How many additional OSHA inspectors will be required to enforce them? Will that pull resources from the existing OSHA mission that is, at least according to some, as yet unfulfilled regarding safety? 

Or, is this call for government intervention in the experience of stress unfounded? Perhaps it is not practical to have a Utopian and stress-free world, at work or otherwise? Is the interest of business focused on the owner/shareholder, or is "stakeholder capitalism," and an additional focus on the community preferable? Left to the marketplace, there seem many obstacles to employer recognition and alleviation of stress. Is it thus left to each of us, as the author suggests, to make choices for ourselves regarding what stress to tolerate and what to avoid? 

Is the premise sound? Is workplace stress killing us all? Or, is stress itself killing us all, regardless of whether that comes from work, home, family, or otherwise? Admitting that workers' compensation is a socialistic solution to the perils of work injury, is anyone ready to add the challenges of stress to that solution? Certainly, any malady might become workers' compensation in such a context (I would not have caught cold had I been better rested; I would have been better rested but for work; thus workers' compensation to cover my cold and missed work). To what extent would this advocated expansion stretch?

Shall government step in and save us all from stress? Too many today do not recall the fall of communism and the spectacular historical failures of socialism. Is the "workers' paradise" less stressful? Are there lessons for younger generations to be learned today from Venezuela, and its embrace of a controlled economy for the benefit of the people (who have been fleeing for all of 2018)? Does the past success of government, government ownership, or government control inspire confidence that it is the solution? It is interesting to contemplate, and it stresses me out.

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