In April 2016 the new Advisory Board for Toxic Substances and Worker Health (ABTSWH) held its first meeting. This Advisory Board has the task of providing advice to the U.S. Department of Labor’s Division of Energy Employees Occupational Illness Compensation (DDEEOIC). Their second meeting was held in October 2016. At the second meeting the Advisory Board provided eight recommendations to the DOL which they believe would improve the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). This week the U.S. Department of Labor (DOL) announced two policy changes based on those recommendations. It is likely these will benefit many claimants. Hopefully, the DOL will accept the other recommendations of the board at a later date.
The first proposed change, and the simplest, is one in which the DOL would hire former U.S. Department of Energy (DOE) facility workers to administer the Occupational History Questionnaire. The board’s perspective is that having people who had some understanding of conditions and work experiences at the nuclear weapons facilities would improve the quality of the information gathered and the DOL agreed. This is important because the Occupational History Questionnaire is one of the tools the DOL uses to gather information on each claimant’s experience at a DOE facility. The DOL has not yet provided information on when this change will take place.
The more complex change recommended by the Board and agreed to by the DOL is to cancel Final Circular 15-06, the Post-1995 Occupational Toxic Exposure Guidance. The DOL has several different types of documents they utilize to decide whether a claim should be paid or not. Final Circulars are one of the resources. The main types of documents the DOL relies on are:
- The Procedure Manual, which provides details on EEOICPA policies used in processing and deciding claims.
- Final Bulletins, which provide additional detail on certain aspects of processing or deciding claims. These bulletins usually become part of the Procedure Manual at a later date. The DOL has said these bulletins carry the same legal weight as the Procedure Manual.
Final Circulars, which provide information to claims examiners and other staff, and according to the DOL are used to provide guidance. In December 2014, the DOL issued Final Circular 15-06. The purpose of this circular was to inform claims examiners on the DOL’s perspective that EEOICPA claimants working after 1995 had little chance of being exposed to toxic substances at work due to DOL improvements to worker safety policies.
The advocates disagreed with this assumption and immediately began working to convince the DOL this was incorrect, but it wasn’t until the board made the suggestion that we saw progress.
What affect will it have on EEOICPA claims when the DOL withdraws this Circular? Basically, it will put workers pre- and post 1995 on a level playing field.
While Circular 15-06 has been in effect, claims examiners have worked under the assumption that it was unlikely workers who worked at DOE facilities after 1995 would have been exposed to enough toxic chemicals to cause diseases. The DOL’s viewpoint is that DOE safety standards were enough to protect the workers in this time period. This made getting a Part E claim approved after 1995 much more difficult.
With the removal of Final Circular 15-06 the claims of all claimants, both before and after 1995, will be treated the same. Claimants will still need to prove their illnesses were caused by toxic exposure at their workplace, but there will no longer be an assumption that workers working after 1995 were in safer conditions than those working before 1995.