Author: WorkCompAcademy

The National Law Review spotlight is on a category of COVID-19 related workplace complaints that undoubtedly has caused many sleepless nights for employers around the country: deaths caused by COVID-19 infections allegedly connected to the workplace.

This week’s update to the tracker includes two such cases – one relates to the alleged wrongful death of an employee from COVID-19, and the other concerns the death of an employee’s spouse.

In each case, the plaintiffs allege a lack of effective institutional response to the virus, as well as a failure to warn employees who may have come in contact with the COVID-19 virus in the workplace. The allegations in these cases demonstrate the importance of employers implementing a plan of action to mitigate the dangers to the workforce.

First, in Iniguez v. Aurora Packing Company, Inc., the plaintiff, administrator of a deceased woman’s estate, filed a wrongful death and survival action against the defendant, a meat-packing facility. The defendant employed the decedent’s husband as a butcher. The plaintiff alleges that in late April 2020, the decedent’s husband contracted COVID-19 while at work, and infected his wife, who died from the virus on May 2.

According to the plaintiff, the defendant knew employees had contracted COVID-19 at its facility, yet did nothing to mitigate the spread of the virus in the facility. The plaintiff alleges that the defendant was negligent by, among other things, failing to warn employees of a COVID-19 outbreak and failing to implement an infectious disease preparedness and response plan or infection prevention measures consistent with CDC and state department of health guidelines.

The plaintiff also asserts that the defendant actively created risk, including by “choosing not to”: provide employees with PPE, implement engineering controls to prevent the virus from spreading, take reasonable measures to allow for social distancing, screen and monitor workers, implement and communicate leave policy, and provide handwashing breaks, hot water, and sanitizer.

In Montgomery v. Prevarian Senior Living, LP, the plaintiffs, the surviving family members of a deceased assisted living facility worker, allege wrongful death and gross negligence under Texas law. The plaintiffs allege that both the deceased and their daughter, one of the plaintiffs, worked for the assisted living and memory care facility, and both were exposed to COVID-19 when assigned by their employer to sit for hours at a time, unprotected, with a resident whom the employer knew (but did not tell its employees) had tested positive for the virus.

The plaintiffs allege that assisted living facilities have often been described as “epicenters” for COVID-19, and that the deceased in particular was at higher risk of experiencing severe COVID-19 complications, including death, due to being overweight and a minority. The plaintiffs allege that the employer owed the deceased a duty to provide a safe workplace.

As the pandemic continues, the unfortunate reality is that we expect to see more illness among employee populations, and more litigation alleging that an employer’s alleged unpreparedness and lack of transparency relative to COVID-19 resulted in the spread of the virus among an employee population, and caused sickness or even death.

As ever, mindful employers would do well to understand and follow the public health guidance coming out at the local, state, and federal levels.

Misleading health content has racked up an estimated 3.8 billion views on Facebook over the past year, peaking during the COVID-19 pandemic, advocacy group Avaaz said in a new report here on Wednesday.

The report found that content from 10 “superspreader” sites sharing health misinformation had almost four times as many Facebook views in April 2020 as equivalent content from the sites of 10 leading health institutions, such as the World Health Organization and the Centers for Disease Control and Prevention.

The social media giant, which has been under pressure to curb misinformation on its platform, has made amplifying credible health information a key element of its response. It also started removing misinformation about the novel coronavirus outbreak that it said could cause imminent harm.

“Facebook’s algorithm is a major threat to public health. Mark Zuckerberg promised to provide reliable information during the pandemic, but his algorithm is sabotaging those efforts by driving many of Facebook’s 2.7 billion users to health misinformation-spreading networks,” said Fadi Quran, campaign director at Avaaz.

“We share Avaaz’s goal of limiting misinformation, but their findings don’t reflect the steps we’ve taken to keep it from spreading on our services” said a Facebook company spokeswoman.

“Thanks to our global network of fact-checkers, from April to June, we applied warning labels to 98 million pieces of COVID-19 misinformation and removed 7 million pieces of content that could lead to imminent harm. We’ve directed over 2 billion people to resources from health authorities and when someone tries to share a link about COVID-19, we show them a pop-up to connect them with credible health information,” she said.

Avaaz’s report also said that warning labels from fact-checkers were applied inconsistently even when misinformation had been found to be false.

The report tracked how content from a sample of misinformation-sharing websites was shared on Facebook by interpreting available Facebook data between May 2019 and May 2020.

The U.S. Attorney’s Office has reached a $3.5 million settlement with specialty pharmacy Advanced Care Scripts, Inc, to resolve allegations that ACS conspired with pharmaceutical manufacturer Teva Neuroscience, Inc. to enable Teva to pay kickbacks to Medicare patients taking Copaxone, a Teva drug approved for treatment of multiple sclerosis.

When a Medicare beneficiary obtains a prescription drug covered by Medicare Part B or Part D, the beneficiary may be required to make a partial payment, which may take the form of a co-payment, co-insurance, or deductible. These co-pay obligations may be substantial for expensive medications.

Congress included co-pay requirements in these programs to encourage market forces to serve as a check on health care costs, including the prices that pharmaceutical manufacturers can demand for their drugs.

The Anti-Kickback Statute prohibits pharmaceutical companies from offering or paying, directly or indirectly, any remuneration – which includes money or any other thing of value – to induce Medicare patients to purchase the companies’ drugs.

Advanced Care Scripts served as a contracted vendor for Teva and provided, among other things, benefits investigation services to certain patients who had been prescribed Copaxone. As part of the settlement, the company acknowledged certain facts.

Advanced Care Scripts knowingly enabled a large pharmaceutical manufacturer to pay kickbacks to Medicare patients taking its expensive drug. Prosecutors say that such conduct undermined the Medicare program’s co-pay structure, which Congress created as a safeguard against inflated drug prices.

“Advanced Care Scripts (ACS) willingly served as a pawn in a kickback scheme, putting profit over patient needs, by helping Teva to time its foundation payments to boost sales of Teva’s own drug, which ACS then dispensed,” said Joseph R. Bonavolonta, Special Agent in Charge of the FBI Boston Division.

Proposed new law, SB 1399, is so far-reaching that it’s being labeled by critics as an existential threat to what remains of the once-booming apparel industry in Los Angeles, which has shrunk to roughly 45,000 workers after decades of competition from cheap foreign labor.

More than a dozen business groups have lined up against it, including the industry’s trade association, the California Chamber of Commerce and the California Retailers Assn.

But the article published on MSN says that opposition, though, is not uniform as some high-profile L.A.-area companies are backing the bill, including Reformation, which markets eco-friendly women’s wear and has a celebrity clientele, and Fashion Nova, the popular fast-fashion retailer, which has been accused of turning a blind eye to wage theft but recently announced changes to its contracting practices.

The proposed reforms follow those enacted in 1999, four years after 72 undocumented Thai workers were found virtually enslaved in an El Monte apartment complex, stitching together clothing behind barbed wire. That legislation made garment manufacturers liable for wage violations by the contractors who cut, sew and otherwise produce their garments.

But in the decades since, worker advocates say that some fashion brands and retailers that carry their own clothing lines have found ways to skirt the law by employing layers of subcontracting between them and the small factories that actually produce apparel.

Random inspections of 77 garment shops conducted in 2015 and 2016 by the U.S. Department of Labor’s Wage and Hour Division found wage violations at 85% of them. Advocates say the situation hasn’t gotten any better, with many undocumented Latino immigrants afraid to file wage claims over fears of deportation.

A 2016 state law, which applied to multiple fields, tightened up regulations on piece-rate compensation, which is traditional in the apparel industry and pays workers for every hem, seam and cuff they sew. That law mandated paid rest and recovery time and required more detailed payroll records.

Labor advocates say the rise of fast-fashion retailers such as Forever 21 has contributed to the problem. The L.A. company had been the poster child for alleged wage abuses before it faltered and filed for bankruptcy last year. The Los Angeles Times documented in 2017 how the company had been cited in nearly 300 claims since 2007 by workers demanding back pay for producing its clothing, yet Forever 21 had not paid anything because it was classified as a retailer.

More recently, labor advocates have been critical of Fashion Nova, one of the local industry’s rising stars – and were stunned to hear it had decided to support the proposed reforms.

Opponents contend the two companies are outliers and do not represent the practices of the L.A. apparel industry, where the use of subcontractors to assemble apparel has long been standard. They are calling for better enforcement of existing laws.

“This new law is all-encompassing, and it paints the whole industry as a bad apple – that is my problem. We are not all Fashion Nova and Forever 21,” said Ilse Metchek, president of the California Fashion Assn. trade group, who fears big chains such as Nordstrom and other retailers will stop contracting for apparel in the state. “You are picking the worst of the worst.”

Fashion Nova declined to comment on Metchek’s remarks but has announced reforms of its contracting practices. That includes a mandate that its contractors and subcontractors agree to random independent audits and that their workers are paid the applicable minimum wage, which in Los Angeles rises to $15 an hour for employers of all size next July.

$2.6 billion! That’s how much Tuft’s University research says it costs to bring a new drug from the research lab to the pharmacy counter. The full research, development and approval process can last from 12 to 15 years.

The U.S. Food and Drug Administration’s (FDA’s) Center for Drug Evaluation and Research (CDER) is a science-led organization in charge of overseeing the drug approval process before a drug is marketed. CDER ensures that both brand and generic drugs work correctly and that the health benefits outweigh the known risks.

In the manufacturer’s early phases of drug discovery (preclinical research) they are synthesizing and screening a drug candidate for toxicity in animals before the medicine moves on to human trials. The sponsor files an Investigational New Drug (IND) Application that details specifics such as chemistry, manufacturing and the initial plans for human testing.

A drug then undergoes several years of laboratory testing before a New Drug Application (NDA) is made to the FDA to begin testing the drug in humans. Only one in 1000 of the compounds that enter laboratory testing will ever make it to human testing.

If the FDA gives the green light, the investigational drug will then enter three phases of human clinical trials:

— Phase 1: About 20 to 80 healthy volunteers to establish a drug’s safety and profile, and takes about 1 year.
— Phase 2: Roughly 100 to 300 patient volunteers to assess the drug’s effectiveness in those with a specific condition or disease. This phase runs about 2 years.
— Phase 3: Typically, several thousand patients are monitored in clinics and hospitals to carefully determine effectiveness and identify further side effects.This phase runs about about 3 years on average.

For an NDA, the company writes and submits an application which includes thousands of pages to the FDA for review and approval. The NDA is the official request for US approval of a drug. The FDA team has 60 days to review the NDA and determine if it will be filed for further review.

A group of independent physicians and other clinicians, called an FDA Advisory Board, meets to discuss the NDA with the FDA reviewers and manufacturer of the product. These meetings often take one or two days. After the meeting, the Advisory Board will make a recommendation for approval, or not, to the FDA, usually through a vote. The FDA often follows the advice of the Board, but is not obligated to do so.

After final approval, the drug becomes available for physicians to prescribe. However, drugs may not come to the market immediately because of patents disputes, manufacturing issues, or controlled substance designation from the DEA.