Employment Practices

Flavored With Danger

Food production that involves certain types of additives or flavorings can put employees at serious risk and create workers’ comp liabilities for employers.
By: | March 2, 2015 • 7 min read

Manufacturers of foods and consumer goods must pay attention to the serious — and sometimes fatal — health risks associated with employee exposure to a growing class of chemical compounds used to enhance scents and flavorings.

For example, workers in flavoring or food production who inhale diacetyl or its substitute, 2,3-pentanedione — common components of butter, nut, and other flavorings — risk a rare lung disease called obliterative bronchiolitis, said Dr. Kathleen Kreiss, field studies branch chief for the division of respiratory disease studies at the National Institute for Occupational Safety and Health in Morgantown, W.Va.


Obliterative bronchiolitis is irreversible and the principal symptoms are cough and shortness of breath, which limits exertion, Kreiss said. The disease is seen in workers making microwave popcorn and cookie dough with artificial butter flavoring, as well as other flavorings.

The disease also strikes workers in coffee processing plants who are exposed to the chemicals from the roasting and grinding of unflavored coffee, as well as the flavoring of coffee with nuts and other types of additives.

“It is hard to diagnose because breathing tests and X-rays can be normal even when affected workers have chest symptoms, and sometimes a biopsy is required to make the diagnosis,” Kreiss said.

“The disease can come on with only months of employment and can progress very rapidly to severe impairment.”

Manufacturers should limit worker exposures to artificial flavors containing diacetyl and related chemicals by providing additional respiratory protection until engineering controls are implemented, such as exhaust ventilation of potential sources of exposure, she said.

“The disease can come on with only months of employment and can progress very rapidly to severe impairment.” — Kathleen Kreiss, field studies branch chief for the division of respiratory disease studies at the National Institute for Occupational Safety and Health

Moreover, to ensure that affected workers are identified early — before they have severe lung problems — manufacturers should institute medical surveillance to check for chest symptoms and conduct spirometry tests to assess conditions that affect breathing, Kreiss said. Medical practitioners should also evaluate if spirometry measurements are falling excessively over time, even in workers who still do not exhibit symptoms or breathing problems.

Workers have successfully sued their employers for failing to adequately protect them against such exposures. In 2004, Eric Peoples and more than 30 of his co-workers at a Jasper, Mo., popcorn plant won a $20 million verdict against International Flavors and Fragrances for severe lung injuries, and other workers at that plant obtained additional verdicts totaling $17.7 million.

Ace Group’s ESIS Health, Safety and Environmental Services in Chicago advises its manufacturing clients to first consider substituting a less hazardous ingredient with a safer alternative, said David Duffy, a certified industrial hygienist and principal consultant for ESIS.


“That’s a very powerful way to solve the problem but it’s easier said than done to find something that tastes similar to what the manufacturer has tried to achieve,” Duffy said. “It has been done, so if a company can do this, it’s a very strong and positive way to protect workers.”

If a substitution is not possible, manufacturers should then consider alternate work assignments for workers who are particularly sensitive to certain chemical compounds, he said. They should also limit exposure by engineering closed production processes that minimize employees’ exposure to potentially dangerous chemical compounds. However, this can be challenging for plants with older equipment, particularly those facilities that still rely on a lot of manual operations.

“In those cases, companies should consider engineering to reduce exposure,” Duffy said. “They need to use a team approach to figure out ways to adjust the process — they can ventilate the area, automate the process or incorporate new engineering concepts and design and retrofit the equipment.”

Alternatively, many manufacturers are implementing new processes that have been designed with the engineering controls in place, “which is a huge benefit,” he said.


Manufacturers should also implement work practices and training programs to ensure safe handling and storage of these compounds, particularly since the sophisticated equipment in manufacturing today takes trained personnel to operate, Duffy said. However, one of the main challenges has been making sure older employees who have been used to working with safer chemicals adapt to the different practices required for handling riskier chemicals.

“It’s very hard to change those behaviors and mentality by incorporating safety concepts,” he said.

“It can be done, but when a company has new processes or chemicals, oftentimes it’s tough for some older employees to modify what they have been doing for years. They don’t understand that handling chemicals today should be different than how they handled chemicals years ago.”

For some organizations, combining engineering such as exhaust systems with employee training and education “can go a long way,” Duffy said.


“The problems we are finding … have to do in a lot of cases with some of the new chemicals being put into the stream of commerce and through the manufacturing process,” Duffy said.

“It’s very difficult to assess risks associated with new chemicals that don’t have established exposure limits or ways for us to monitor airborne levels or employee exposures. So we are back to dealing with unknowns — which makes these steps and other safety and health measures even more important.”

JoAnn Sullivan, a San Jose, Calif.-based senior vice president and managing consultant at Marsh Risk Consulting’s workforce strategies practice, said that manufacturers should be used to managing exposures to chemicals that have been shown to be risky at concentrated levels during manufacturing, as issues related to food additives and chemically altered products were first identified in the 1960s.

There was quite a lot of press on certain food colorings in soft drink mixes and other products, which led to changes in how these products were manufactured for consumption, Sullivan said.

“Risk managers have a very strong commitment to adhering to OSHA regulations and best practices to prevent exposures to employees in manufacturing processes that handle highly concentrated products,” Sullivan said.

“Employees could get exposed if they ingest the chemical in any way, including if it gets on their hands and then they eat a sandwich, if they breathe it or it gets into any of their mucous membranes or even their ears.”

The chemicals that make up the additives are required to be identified on safety data sheets that are used in the plants, so employees can review and understand the potential exposures to the chemicals they are working with, she said.

“It’s very difficult to assess risks associated with new chemicals that don’t have established exposure limits or ways for us to monitor airborne levels or employee exposures.” — David Duffy, a certified industrial hygienist and principal consultant for ESIS.

Third-party administration companies handling workers’ compensation programs for manufacturers are looking for controls in the work environment, which could include engineering fume hoods, negative-pressure workrooms in which hazardous vapors are constantly being removed, or rooms that constantly draw chemical residue away from the work area, Sullivan said. Employees might also wear full-body Tyvek suits, or “bunny suits” if they are working in areas where there are high concentrations of certain chemicals.

Marsh also recommends that manufacturing clients have medical surveillance programs for their employees, based on the type of toxins or exposure, she said.

“Such programs may tests employees’ lung function, blood or urine on a periodic basis, and they let them know that they will do this when they hire them,” Sullivan said.


For some additives, the European Union’s safety standards currently list stricter controls, testing procedures and requirements than the United States, so multinational companies operating there need to make sure they comply with those rules, she said.

As for Marsh’s manufacturing clients, Sullivan believes they have demonstrated that they have taken these risks seriously by putting into place very strong industrial hygiene programs, good quality control methodology and the right people to oversee safety programs.

“They don’t want to have workers’ compensation or product liability claims and bad press,” she said. “Most are doing a bang-up job, but that said, there are new technologies all the time such as nanotechnologies to distribute chemicals, and the jury is still out about the impacts. Companies, watchdog groups and the government are continually monitoring those new technologies.”

From a consumption standpoint, watchdog groups are looking for complete and truthful labeling on products, as it is not enough that chemical additives, which enhance flavors or increase the longevity or stability of a product, are included on the ingredient listing on the packaging, Sullivan said.

“Companies might put down certain additives followed by several others, but they don’t indicate that they’ve been mixed together, or they don’t list the quantity of a certain item,” she said.

Katie Kuehner-Hebert is a freelance writer based in California. She has more than two decades of journalism experience and expertise in financial writing. She can be reached at riskletters@lrp.com.
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Labor Law Update

Workplace Regulations Increase

Three recent pro-union decisions by the NLRB make it more difficult for employers.
By: | March 2, 2015 • 2 min read

The National Labor Relations Board surprised virtually no one when it issued a trio of pro-employee decisions as 2014 drew to a close, according to employment-law experts.


But a coalition representing an array of industry sectors and businesses filed suit in the U.S. District Court for the District of Columbia to stop the NLRB from moving forward with its “ambush-elections” rule, which it issued on Dec. 12. It’s anyone’s guess what the outcome will be.

In each of the board’s decisions — regarding employee use of company email for union organizing, the NLRB’s so-called “quickie-election” rule; and the changing standard for deferral to arbitration awards — the board basically told affected employers they will have to adjust to the enhanced union organizing efforts within their workforces.

Steve Bernstein, a partner in the Tampa, Fla., office of Fisher & Phillips, said the email decision was “seven years in the making,” with labor unions working to get a Bush administration NLRB rule overturned since the day President Barack Obama took office.

“This decision is the culmination of those efforts,” Bernstein said.

Patrick Muldowney, a partner at Baker Hostetler in Orlando, Fla., said the main takeaway on that decision is that employers are losing even more control over what occurs in their workplaces, including the ability to enforce their email policies.

Muldowney said employers must tread carefully when reviewing or even becoming aware of employees’ emails, especially regarding employee discipline. They need to know if an email is an exercise of Section 7 rights.

“You might say this gives an employee another bite at the apple if they are not happy with an arbitration outcome.” — Patrick Muldowney, partner, Baker Hostetler

As for the NRLB’s “quickie election” rule that goes into effect on April 14, some legal experts said that reducing the time between the filing of a petition and a union election denies employers an adequate chance to stage an anti-union campaign prior to employee voting.

The average time for the election process is now somewhere between 38 and 42 days, experts said. The new rule can drop that number to as few as 10 or 20 days, which critics contend, creates an “ambush-election” scenario — and is a serious setback for employers trying to respond to worker demands and union promises.


The third key decision gives the NLRB more discretion in deferring to arbitration procedures and awards for employees alleging they suffered retaliation or reprisal for engaging in union and/or protected concerted activity, in violation of the National Labor Relations Act.

“The standard used to be deferring to an arbitration award when it wasn’t clearly repugnant to the NLRA,” Muldowney said. “You might say this gives an employee another bite at the apple if they are not happy with an arbitration outcome. The board has said it no longer needs to automatically defer to arbitration decisions.”

Tom Starner is a freelance business writer and editor. He can be reached at riskletters@lrp.com.
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Sponsored: Aspen Insurance

A Modern Claims Philosophy: Proactive and Integrated

Aspen Insurance views the expertise and data of their claims professionals as a valuable asset.
By: | March 2, 2015 • 4 min read

According to some experts, “The best claim is the one that never happens.”

But is that even remotely realistic?

Experienced risk professionals know that in the real world, claims and losses are inevitable. After all, it’s called Risk Management, not Risk Avoidance.

And while no one likes losses, there are rich lessons to be gleaned from the claims management process. Through careful tracking and analysis of losses, risk professionals spot gaps in their risk control programs and identify new or emerging risks.

Aspen Insurance embraces this philosophy by viewing the data and expertise of their claims operation as a valuable asset. Unlike more traditional carriers, Aspen Insurance integrates their claims professionals into all of their client work – from the initial risk assessment and underwriting process through ongoing risk management consulting and loss control.

This proactive and integrated approach results in meaningful reductions to the frequency and severity of client losses. But when the inevitable does happen, Aspen Insurance claims professionals utilize their established understanding of client risks and operations to produce some truly amazing solutions.

“I worked at several of the most well known and respected insurance companies in my many years as a claims executive. But few of them utilize an approach that is as innovative as Aspen Insurance,” said Stephen Perrella, senior vice president, casualty claims, at Aspen Insurance.

SponsoredContent_Aspen“We do a lot of trending and data analysis to provide as much information as possible to our clients. Our analytics can help clients improve upon their own risk management procedures.”
— Stephen Perrella, Senior Vice President, Casualty Claims, Aspen Insurance

Utilizing claims expertise to improve underwriting

Acting as adviser and advocate, Aspen integrates the entire process under a coverage coordinator who ensures that the underwriters, claims and insureds agree on consistent, clear definitions and protocols. With claims professionals involved in the initial account review and the development of form language, Aspen’s underwriters have a full sense of risks so they can provide more specific and meaningful coverage, and identify risks and exclusions that the underwriter might not consider during a routine underwriting process.

“Most insurers don’t ever want to talk about claims and underwriting in the same sentence,” said Perrella. “That archaic view can potentially hurt the insurance company as well as their business partners.”
SponsoredContent_AspenSponsoredContent_AspenAspen Insurance considered a company working on a large bridge refurbishment project on the West Coast as a potential insured, posing the array of generally anticipated construction-related risks. During underwriting, its claims managers discovered there was a large oil storage facility underneath the bridge. If a worker didn’t properly tether his or her tools, or a piece of steel fell onto a tank and fractured it, the consequences would be severe. Shutting down a widely used waterway channel for an oil cleanup would be devastating. The business interruption claims alone would be astronomical.

“We narrowed the opportunity for possible claims that the underwriter was unaware existed at the outset,” said Perrella.


Risk management improved

Claims professionals help Aspen Insurance’s clients with their risk management programs. When data analysis reveals high numbers of claims in a particular area, Aspen readily shares that information with the client. The Aspen team then works with the client to determine if there are better ways to handle certain processes.

“We do a lot of trending and data analysis to provide as much information as possible to our clients,” said Perrella. “Our analytics can help clients improve upon their own risk management procedures.”
SponsoredContent_AspenFor a large restaurant-and-entertainment group with locations in New York and Las Vegas, Aspen’s consultative approach has been critical. After meeting with risk managers and using analytics to study trends in the client’s portfolio, Aspen learned that the sheer size and volume of customers at each location led to disparate profiles of patron injuries.

Specifically, the organization had a high number of glass-related incidents across its multiple venues. So Aspen’s claims and underwriting professionals helped the organization implement new reporting protocols and risk-prevention strategies that led to a significant drop in glass-related claims over the following two years. Where one location would experience a disproportionate level of security assault or slip & fall claims, the possible genesis for those claims was discussed with the insured and corrective steps explored in response. Aspen’s proactive management of the account and working relationship with its principals led the organization to make changes that not only lowered the company’s exposures, but also kept patrons safer.


World-class claims management

Despite expert planning and careful prevention, losses and claims are inevitable. With Aspen’s claims department involved from the earliest stages of risk assessment, the department has developed world-class claims-processing capability.

“When a claim does arrive, everyone knows exactly how to operate,” said Perrella. “By understanding the perspectives of both the underwriters and the actuaries, our claims folks have grown to be better business people.

“We have dramatically reduced the potential for any problematic communication breakdown between our claims team, broker and the client,” said Perrella.
SponsoredContent_AspenSponsoredContent_AspenA fire ripped through an office building rendering it unusable by its seven tenants. An investigation revealed that an employee of the client intentionally set the fire. The client had not purchased business interruption insurance, and instead only had coverage for the physical damage to the building.

The Aspen claims team researched a way to assist the client in filing a third-party claim through secondary insurance that covered the business interruption portion of the loss. The attention, knowledge and creativity of the claims team saved the client from possible insurmountable losses.


Modernize your carrier relationship

Aspen Insurance’s claims philosophy is a great example of how this carrier’s innovative perspective is redefining the underwriter-client relationship. Learn more about how Aspen Insurance can benefit your risk management program at http://www.aspen.co/insurance/.

Stephen Perrella, Senior Vice President, Casualty, can be reached at Stephen.perrella@aspen-insurance.com.

This article is provided for news and information purposes only and does not necessarily represent Aspen’s views and does constitute legal advice. This article reflects the opinion of the author at the time it was written taking into account market, regulatory and other conditions at the time of writing which may change over time. Aspen does not undertake a duty to update the article.


This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Aspen Insurance. The editorial staff of Risk & Insurance had no role in its preparation.

Aspen Insurance is a business segment of Aspen Insurance Holdings Limited. It provides insurance for property, casualty, marine, energy and transportation, financial and professional lines, and programs business.
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