May 21, 2009

Working Outdoors: Skin Cancer and Workers Comp

With the full heat of summer bearing down on us, the Insider has deputized its readership to become informal safety inspectors: the next time you leave the office, observe any people who are working outdoors. Your checklist should include the fundamental safety drill: fall protection for height exposures; personal protective equipment such as hard hats, work boots and goggles; secure scaffolds and ladders; proper use of machinery (lawnmowers, clippers, circular saws, etc.); proper lifting and efficient material handling.

Here is a safety issue that you are likely to observe in the breach: protection from skin cancer. Exposure to the direct rays of the sun, especially at midday, is a significant safety hazard. Alas, when most people labor in the full sun, they usually take action against the heat, at the expense of protecting themselves from the sun's rays.

Cancer prevention dictates the wearing of long-sleeved shirts, a hat with neck flaps, sunscreen for exposed skin and sunblock for the nose and lips. When was the last time you saw a landscaper, carpenter or roofer dressed appropriately? When the heat rises, the shirts tend to come off. Bandanas and "do-rags" - considered cool in working circles - keep sweat out of the eyes, but they do little to protect the skin from the sun's rays. Hats with flaps? Dude, you must be kidding. Goggles and hardhats? They are the first to go when the heat rises.

As for the advice to "avoid exposure between the hours of 10 am and 2 pm," that is simply not going to happen. There is work to be done and those are prime hours for doing it. Siestas might be culturally acceptable in the tropics, but in our productivity-driven culture, siestas are not an option.

The Compensability Conundrum
As we have pointed out in prior blogs, the connection between work and occupational disease is often difficult to prove. With the exception of public safety employees, most workers face formidable odds in collecting comp for occupational diseases. There often are factors that mitigate against the acceptance of a claim: family history, smoking, fair skin, etc. Workers must be able to prove that workplace exposures are the "predominant cause" of the cancer. Sure, a laborer is under the sun at work; but he or she might also have significant exposure during leisure time, going to the beach, fishing, or just working in the garden.

It's always interesting to see how state legislatures translate emerging hazards into proposed legislation: lawmakers tend to react in a limited, ad hoc manner. See for example this proposed bill in the New York legislature:

This bill would provide,with respect to active lifeguards employed, for more than 3 consecutive months in a calendar year, by certain local agencies and the Department of Parks and Recreation, that the term "injury" includes skin cancer that develops or manifests itself during the period of the lifeguard's employment. This bill would further create a rebuttable presumption that the above injury arises out of and in the course of the lifeguard's employment if it develops or manifests during the period of the employment.

Note that the symptoms must develop during employment: this in itself may prove problemmatic, as many cancers occur some time after the direct exposure. Beyond that, the bill establishes a compensability presumption for one very limited class of workers, lifeguards. It does not address the myriad workers who face similar hazards on a daily basis (even if their work uniforms involve more than just a bathing suit).

Despite the fact that many workers will develop skin cancers which are likely to be work related, the number of compensable incidents will remain modest. The comp deck remains stacked against workers in the general area of illness.

Compensability and safety are two separate issues. We may not be able to do much about expanding coverage for work-related cancers, but we can take aggressive action to prevent them. It all comes down - as it does so often - to management: do you tolerate your workers's ad hoc efforts to combat the heat, or do you enforce "best practices" in cancer prevention. Do you make sunscreens and head protection readily available on the jobsite, or do you allow your workers the "individual freedom" to do as they please?

We all know how most managers respond. They take the path of least resistance. The risk of an accident is one thing, the seemingly remote risk of illness is quite another. It will take many more tragic cases of work-related cancers before a true prevention mobilization takes place. For workers struggling under today's galring sun, we can only hope that a word to the wise is sufficient.

| 2 Comments

2 Comments

I often wonder how some companies that have this type of exposure take precautions for their workers.Or, do they wait until there is a lawsuit to make them take a step at protecting their workers.

I have several questions on behalf of employers as well as those of us who represent employers. I do agree that skin cancer could very well be work-related. My questions would be (1) How much weight do you give to the person's leisure activities and/or length of employment? It seems these would certainly be factors in assessing whether the employment is the predominate cause. (2) What steps could employers take to prevent work-related skin cancer other than the mentioned provision of sun screen and policies to enforce dress code? (3) What about research indicating that some, if not all, sunscreen products are carcinogenic? and (4) What balance should be sought between skin cancer and heat-related illnesses (if any "balance") as far as prevention is concerned? Thank you for the idea in this area!

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About this Entry

This page contains a single entry by Jon Coppelman published on May 21, 2009 11:16 AM.

Cavalcade of Risk; our Twitter debut; a few good blogs was the previous entry in this blog.

Compensable Sunshine, Revisted is the next entry in this blog.

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