Safety Front And Center At St. Louis River Industry Seminar

Safety issues occupied a prominent position in most panels of the St. Louis River Industry Seminar September 16, hosted and organized by St. Louis lawfirm Fox Smith LLC. The annual seminar has become a premier maritime-law event for maritime attorneys, inland river operators and related professionals. It was begun in 2022 under the leadership of veteran maritime attorney Ron Fox after the St. Louis Bar Association discontinued its annual maritime law seminar.

River Industry Seminar attendance has grown every year, with about 95 people in attendance this year. All proceeds beyond costs are donated to the Seamen’s Church Institute.

The first panel, introduced by Fox, featured Fox Smith partner Meggie Gentzen and Dorian Tuminello, employment and human resources compliance counsel at CGB Enterprises. Prior to the discussion, Fox gave a brief update on Coast Guard regulations on cybersecurity. Beginning January 12, all towing and barge companies will be required to have a trained person with designated responsibility for cybersecurity.

‘Harassment’ Defined

Gentzen gave an update on the Coast Guard’s sexual assault and sexual harassment regulations. When those regulations were first promulgated, many companies had questions about what some terms meant or how much they had to report. The House of Representatives passed H.R. 4275, the Coast Guard Authorization Act, which contains several proposed changes. That legislation is now pending with the Senate’s Committee on Commerce, Science and Transportation.

Of importance is that the term “harassment,” not defined in the original regulations, has been more closely defined in the bill to align with definitions in existing law, including in the Americans With Disabilities Act, Gentzen said. The Coast Guard requires reports only of incidents that violate the law and meet legal definitions of “harassment.” Vessel owners may take immediate personnel action in response.

The ADA also bars discrimination in hiring and covers employees, job applicants, former employees and temporary workers (but not independent contractors), Gentzen said. It applies to private companies with 15 or more employees, as well as employment and staffing agencies. The act requires “reasonable accommodations” to qualified individuals with a disability and an “interactive, good faith” process.

‘Disability’ and ‘Accommodation’

The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities,” a record of such impairment or “being regarded as having such an impairment.” A reasonable accommodation might include telework, sign language interpreters, modified work schedules, assistive technology, reassignment to another position or leave policies. However, employers don’t have to create a new position.

Before any company decides that an employee or applicant “can’t do a job,” it is imperative that employers engage in the interactive process and obtain relevant medical documentation from the employee, Gentzen said. Employers are allowed to require a medical exam after a conditional offer of employment is made, so long as that medical exam is “consistent with business necessity.” A medical certificate should be filled out by a qualified physician for the employee or candidate. Since “safety is paramount” on towboats, a medical condition that is a direct threat to safety of the prospective employee or current employees may be grounds for not hiring that person, but it must be documented in writing.

What is the “right” and “reasonable” accommodation? Gentzen said arguing that an accommodation is an “undue hardship” simply because it might involve a little extra expense or inconvenience is “a nearly impossible defense” for an employer, except where safety might be implicated. She urged employers to “think outside the box” and be creative in finding accommodations. She added that discussion of mental health issues has become more open and accepted. Employers must recognize that mental health conditions are disabilities, Gentzen said. But when it comes to employee safety, always rely on objective evidence and medical opinions, not “uninformed assumptions.”

Gentzen stressed that detailed job descriptions are extremely important in later discussions about whether a condition impairs an employee from performing that job. She recommended being specific. State how many pounds a deckhand might be required to lift and move, for example.

“The most common mistake employers make is not updating job descriptions,” she said.

Some employers make “job simulations,” where candidates go through the motions of a typical day on a towboat, part of the interview process, according to Fox.

Tuminello also covered the Family and Medical Leave Act (FMLA), which involves unpaid but job-protected leave for certain medical or family reasons, including pregnancy, newborn bonding, military, parental care and foster care. The leave could extend for up to 12 weeks in a 12-month period, or 26 weeks if the employee or family member is in military service, and the injury is related to that service. The Family and Medical Leave Act covers companies with 50 or more employees within a 75-mile radius. FMLA leave is protected against job loss and retaliation by the employer. The leave can be intermittent. Some states have their own leave laws that require employers to offer paid sick leave.

Document, Document, Document

The next panel, led by Fox Smith partner Stas Levchinsky, continued the emphasis on documentation. Levchinsky discussed forms important for every marine employer to have filled out.

Barge workers are considered a “safety sensitive position” by the Department of Transportation, mandating companies to request background checks related to drug and alcohol incidents from prior safety sensitive employment within two years, with an employee’s written consent. Companies can also have employees fill out health questionnaires. These documents are crucial to the hiring process, Levchinsky said, adding, “The more thorough, the better.”

Redundancy is good on these forms—meaning that the same question should be asked several different ways to solicit truthful and detailed answers. Employers should not accept “line-throughs,” where employees simply draw a line through “yes” or “no” answer columns, but should ask further questions. They should inform candidates in writing that they rely on complete and honest answers, and false or incomplete information could subject them to discipline, up to and including termination. Then, employers should require employees to sign the notice.

Any dishonesty in these forms by the employee could have a big impact on the assessment of comparative fault by a judge or jury in case of an incident, Levchinsky said. For example, an undisclosed prior shoulder dislocation could be an “enormous red flag,” Fox said.

Other important forms include witness/non-witness forms, where employers get written statements about who did or did not witness an incident, which should be filled out by everyone on a vessel.

Boarding and separation forms, which employees sign when getting on and leaving a vessel, ask if they have been injured during their off time or during their shift. Since these forms may include HIPAA-sensitive medical disclosures, they should be stored securely and separately from other employee records.

Accident reports may be the company’s best opportunity to get a signed statement from an injured employee and should be filled out as soon as possible. The employee should be given space to describe what happened and also provide specific information about what tools or equipment were used, who was nearby and if there was anything the employee could have done to prevent the accident. Any statement should be signed by a supervisor, and it should only be sent ashore from a single agreed-upon location, such as the wheelhouse computer.

Levchinsky also discussed Coast Guard form 2692, which is to be filled out in reports to the Coast Guard about marine incidents or casualties. Several audience members reported that the Coast Guard sometimes waives these forms in reported incidents. In other cases, accompanying forms include descriptions of barge damage, reports of mandatory drug testing and a list of “involved persons” whose acts or omissions can’t be ruled out as possible causative factors. Any guidance from the Coast Guard not to turn in a 2692 should be documented.

Companies should also consider documenting employee discipline following an incident if a company rule or policy was violated. “Discipline” can be as light as counseling the employee against the offending behavior. A good discipline form, Levchinsky said, should include the offending act or failure to act, a record that a discussion was had with the employee, what action was taken and the employee’s signature. Company policies can include corrective measures, such as requiring supplementary safety training.

However, Levchinsky added, for serious events, companies should always consult with counsel before completing any paperwork containing conclusions about causation and recommendation for change. These documents are discoverable in any potential litigation and may provide evidence of unseaworthiness or negligence, but if a legal privilege attaches to these documents, they may be protected from discovery in later litigation.

Venue Selection

Levchinsky discussed venue selection agreements. In case of a claim, the company and employee may agree on where any lawsuit must be filed either during the onboarding process or sometime thereafter. For current employees, venue agreements may not be required as a condition of continued employment. However, they may be executed with a current employee if that employee is offered something for their agreement, such as a bonus or pay supplement. This led to a discussion of so-called “judicial hellholes,” where juries and/or judges are more sympathetic to plaintiffs and may award large judgements. One audience member commented that COVID-19 caused a “huge shift” in many jurors’ moods, creating more such “hellholes” and therefore added risks for defendants.

Maintenance And Cure

The perennial topic of maintenance and cure payments—payments for reasonable medical expense and room and board available to injured Jones Act seamen regardless of fault—was next on the agenda, presented by Levchinsky and Fox Smith partner Ted Lucas. “Maintenance” replaces lost income, while “cure” includes payments to health providers until “maximum medical improvement” has been reached.

The three possible statuses available to injured maritime workers are Jones Act seaman, longshoreman under the Longshore Act or workers covered by state worker compensation laws. The panel had a lengthy discussion of hypotheticals, including who fit what category under which fact sets. Lucas delved further into this topic in a separate presentation later in the day.

An afternoon panel covered how Jones Act personal injury cases are valued, from both the employer’s and plaintiff’s perspective. Veteran plaintiff attorney Matthew Chapman joined Fox for this session. Discussion touched on causation, how to assess jurors’ reactions and the difference between special (economic) and general (non-economic) damages, which can’t be mathematically computed. Chapman and Fox pointed out that, today, more than 90 percent of all civil cases are settled. Often, settling before trial is in the best interests of both parties.

Mediation

The next to last session covered mediation, once rare but increasingly popular in the past 35 years or so. Two guest speakers from Houston flew in for this session: attorney Matt Shaffer and professional mediator Louis Selig. Mediators don’t have to be attorneys or retired judges, although many are. Their role is highly circumscribed, and their appearance of strict neutrality, as well as confidentiality, must be maintained at all times, as well as confidentiality.

Mediation offers a venue for the two parties to communicate in ways that make settlement more likely. Contrary to popular belief, mediation is not always less expensive than going to trial, but it may be. Via mediation, the parties can move closer to a settlement through such techniques as “brackets,” where each party gives the mediator confidential “high” and “low” figures for what they would accept as a settlement. According to Shaffer, brackets should be avoided early in the process.

Mediators are not supposed to render their own judgments about what a case is worth or what figures are fair. Both Fox and Selig supported the idea of sending a settlement offer in advance of mediation. A mediator is not supposed to reveal what he or she learns from one side to the other. Only demand figures should be shared with the attorney’s permission. In some cases where negotiation stalls, a private caucus between opposing attorneys may help, with the parties not present.

“A trial is about the past and what happened in the past,” Selig said. “Mediation is about the future and what the parties need to move on with their lives.”