FirefighterSince 1993, the Ohio Workers’ Compensation Act (O.R.C. §4123), has provided firefighters and police officers additional workers’ compensation benefits. Specifically, it is presumed that firefighters and police officers who suffer from cardiovascular, pulmonary, or respiratory disease after being exposed to heat, smoke, toxic gases, chemical fumes and other toxic substances during the course of their employment, obtained it through the course of and arising out of their employment. Additionally, this section expands the traditional two year workers’ compensation statute of limitations to eight years.

On January 4, 2017, Ohio Governor John Kasich signed the Michael Louis Palumbo, Jr. Act (Ohio Senate Bill 47), renamed after Michael Palumbo, a captain with the Willowick Fire Department who battled with brain cancer after 25 years of service. The Act expands the protections given to firefighters under O.R.C. §4123.68 by adding certain cancers to the list of presumed occupational diseases to firefighters – thus a firefighter who is disabled due to certain cancers will be presumed to have contracted that disease during the course of and arising out of his or her employment as a firefighter.

However, this Act includes specific parameters that must be met to fall under this presumption:

  • The firefighter must be disabled as a result of cancer
  • The firefighter must have had at least six years on hazardous duty (as defined in 5 C.F.R. 550.902: a “duty performed under circumstances in which an accident could result in serious injury or death, such as duty performed on a high structure where protective facilities are not used or on an open structure where adverse conditions such as darkness, lightning, steady rain, or high wind velocity exist”)

As this is a presumption, it may be rebutted with evidence showing the firefighter:

  • Contracted this type of cancer before joining the fire department
  • Has exposure, outside of the scope of their official duties, to tobacco products, or other conditions that would indicate an extremely high risk of that cancer, and that was probably a significant factor in the cause or progression of the cancer
  • Was not exposed to a qualifying cancer
  • Is over 70 years old
  • Has not been assigned to hazardous duty in more than twenty years

Theoretically, a firefighter who has not worked in 20 years could possibly bring a workers’ compensation claim as long as they had at least six years of hazardous duty. It is important for employers to thoroughly document all workplace related injuries and exposure to harmful chemicals or toxins.

Workplace AccommodationOn Monday, December 12, the Equal Employment Opportunity Commission (EEOC) issued a resource document concerning workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA), entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This resource document is part of a series of resource documents issued by the EEOC explaining workplace rights for individuals with disabilities. Earlier in 2016 the EEOC released resource documents addressing the rights of employees with HIV infection and employees who are pregnant.

Through the document, the EEOC aims to educate employers, job applicants, and employees that mental health conditions are no different from physical health conditions under the ADA. Moreover, EEOC charge data shows that claims of workplace discrimination based on mental health conditions are on the rise, with preliminary 2016 data estimating 5,000 mental health discrimination charges within the fiscal year.

Individuals suffering from depression, PTSD, and other mental health conditions are protected from workplace discrimination based on their mental health condition. Thus, employers must be prudent not to rely on stereotypes or jump to conclusions regarding mental health. However, employers are not required to hire or keep employees in jobs they cannot perform or employ individuals who pose a “direct threat” to safety.

The document explains that generally employees with a mental health condition are able to keep their condition private in the workplace. Employers are permitted to ask questions about mental health in only four situations:

  • When an employee with a mental health condition asks for a reasonable accommodation.
  • After the employer has made a job offer, but before employment begins, if everyone entering the same job category is asked the same questions, and the questions are job-related in some way.
  • When the employer is engaging in affirmative action for people with disabilities, in which case the employee may choose whether to respond.
  • On the job, when there is objective evidence that the employee may be unable to perform the job or that an employee may pose a safety risk because of his or her condition.

Moreover, employees with mental health conditions have a right to reasonable accommodations at work. The document provides some examples of acceptable reasonable accommodations for employees with mental health conditions:

  • Altered break and work schedules to work around therapy appointments.
  • Quiet office space or devices that create a less stressful work environment.
  • Changes in supervisory methods, such as written instructions instead of oral.
  • Specific shift assignments.
  • Permission to work from home.

Employers are not required to provide a reasonable accommodation unless an employee requests one. However, if a reasonable accommodation will enable the employee to fulfill his or her job responsibilities, employers are advised by the EEOC to provide one, unless the accommodation involves significant difficulty or expense. Employers may also choose between reasonable accommodations if more than one accommodation is feasible.

Given the complex issues with mental health issues and accommodations for individuals suffering with them, employers should act prudently and engage in the interactive process with affected employees. Experienced employment lawyers can be of great help in this effort.

On December 19, the United States Department of Labor issued comprehensive new guidance making it clear that it intends to continue to aggressively pursue employers who misclassify employees as independent contractors. The transmittal message for the new guidance, entitled “Misclassification Affects Everyone,” states the DOL’s position that “The misclassification of employees as independent contractors is a huge problem for workers, employers who play by the rules and our economy.” Although the document states that the DOL supports valid independent contractor arrangements, the definite direction of the DOL is to limit many common ways businesses use independent contractors rather than employees.

The DOL’s new guidance is accessible through a web page and provides quotes from misclassified workers, including one who compares his job as a taxi driver to “modern day slavery.” Although the approach may seem overly dramatic, the web site does provide a variety of useful tools, such as a section entitled “Myths About Misclassification,” which addresses twelve commonly held misconceptions about independent contractor arrangements.

The DOL’s overall direction under the incoming presidential administration cannot be predicted with complete certainty, but employers can safely predict that their classification of workers as independent contractors will continue to be closely scrutinized—not just by the DOL, but also by state and local taxing authorities. Employers should therefore consider auditing their independent contractor arrangements by using the DOL’s new guidance and by consulting with their employment counsel.

Green Marijuana PlantOn December 15, 2016, the Board of Pharmacy issued draft regulations placing a limit of 40 dispensary licenses, and providing for rules on obtaining dispensary licenses, operating dispensaries and licensing of employees. The State Medical Board regulations provided steps physicians have to undertake in order to be able to recommend medical marijuana. The Department of Commerce made some increases to cultivator limits.

Board of Pharmacy

The Board of Pharmacy will only issue “up to” 40 provisional dispensary licenses by September 8, 2018, with no licensee being issued more than 5 dispensary licenses at any time. There is a $5,000 non-refundable license application fee and an $80,000 fee to be paid every other year. In order to be eligible, a prospective dispensary owner must have at least $250,000 in liquid assets. Although there is no date yet, the Board of Pharmacy will provide notice of a request for applications to operate a dispensary.

The Board of Pharmacy also issued regulations regarding licensing of employees working for a dispensary, including thorough background checks and maintaining a valid employee identification card. Employees will have to report all purchases to the OARRS controlled substances database within five minutes of purchase.

There are also rules regarding dispensary operation, such as the requirement to hire and maintain a pharmacist, nurse, physician or physician’s assistant as the dispensary clinical director. The clinical director must train employees, develop patient educational materials, and be on the premises at all times or on call at all times.

State Medical Board

The State Medical Board issued rules that only allow physicians to recommend marijuana for medical purposes if they have an active and unrestricted license “to practice medicine and surgery or osteopathic medicine and surgery.” Before they can recommend, physicians must take a two-hour educational course on medical marijuana. Other than that, the process to obtain a certificate to recommend will follow the current licensure structure and require no additional fee and no separate background check. Physicians may only recommend marijuana to treat one of the 21 listed qualifying medical conditions.

Physicians may not have any ownership interest in or compensation agreement with another medical marijuana entity.

Department of Commerce

The Department of Commerce made changes to the original proposed cultivator rules that were issued on November 1, 2016. The major changes included increasing the number of Level II small business licenses from 6 to 12, increasing the maximum cultivation area for Level I licensees from 15,000 square feet to 25,000, and increasing the maximum cultivation area for Level II licensees from 1,600 square feet to 3,000 square feet. Also, beginning on September 9, 2018, upon approval, a Level I cultivator may expand an existing facility to an area not to exceed 50,000 square feet, and a Level II cultivator may expand an existing facility to an area not to exceed 6,000 square feet.

These proposed regulations are nowhere near finalized because final rules are not due until September 8, 2017 for the Board of Pharmacy and State Medical Board, and May 6, 2017 for the Department of Commerce. Also, as was the case with the cultivator regulations, the dispensary and physician regulations are subject to change after public comments.

Work Injury Claim Form on desk with glasses and pen
Work Injury Claim Form on desk with glasses and pen

On November 28, 2016, the United States District Court for the Northern District of Texas denied industry employers’ efforts to enjoin OSHA from beginning to enforce portions of OSHA’s May 2016 final rule that purports to prohibit, among other things: 1) disciplinary action against employees for not immediately reporting work-related injuries or illnesses; and 2) blanket, automatic post-accident/injury drug and alcohol testing.

In May 2016, OSHA published a new record keeping rule that included, among other provisions, an express anti-retaliation prohibition. Commentary to OSHA’s final rule suggested that employer policies requiring immediate reporting of injuries could have a chilling effect on employees reporting slow-developing or chronic injuries or illnesses. According to OSHA, to be reasonable, the policies must allow for reporting within a reasonable time after the employee realizes that he or she has suffered a work-related injury instead of requiring reporting immediately following the occurrence of an injury. The Commentary also implied that post-incident drug or alcohol testing under a blanket policy could constitute prohibited retaliation. Instead, OSHA instructed employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

The National Association of Manufacturers and similar industry groups and employers filed a lawsuit in the Northern District of Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D) shortly after the final rule was published, challenging the rule’s anti-retaliation provisions and seeking a preliminary injunction to prevent OSHA from beginning to enforce the provisions until the Court decided their underlying legal challenge. Although the original effective date for the rule had been August 10, 2016, OSHA voluntarily postponed its enforcement of the anti-retaliation provisions until December 1, 2016 to allow the Court to rule on the request for preliminary injunctive relief.

The Court has now denied the employers’ request for injunctive relief on narrow grounds, holding that the employers could not demonstrate immediate, irreparable harm if enforcement of the anti-retaliation rule became effective. The Court’s decision was limited to the element of irreparable harm, and did not reach the underlying merits of the claim that the new rule creates an unlawful enforcement scheme under OSHA. In short, the Court has allowed OSHA to implement the new rule without deciding whether the rule is valid.

The Texas District Court’s ruling means that OSHA’s regulations are now in effect, allowing OSHA to investigate complaints by employees who have suffered retaliation under blanket drug and alcohol testing policies or who have suffered adverse or disciplinary action for “late” injury reporting. In addition to ongoing litigation, additional complications may result from additional/different regulatory changes made by the incoming new presidential administration early next year. For now, however, OSHA’s regulations are fully in effect. They have not been “approved,” however, so employers cited under them are able to challenge the citation based upon the rules’ invalidity. Employers are urged to consult with counsel to determine whether immediate changes to their accident reporting and drug testing policies and programs are needed, and, of course, whenever they receive a citation under these rules.

 

 

Small Business Owner Green Road Sign and Clouds
Small Business Owner Green Road Sign and Clouds

Within the many pages of the 21st Century Cures Act, just passed by Congress and awaiting signature by President Obama, is the Small Business Healthcare Relief Act. This creates a new health benefit plan for small employers called Qualified Small Employer Health Reimbursement Arrangements (“QSEHRA’s”). It allows employers to provide pretax reimbursement to employees who obtain health insurance for themselves, such as through Affordable Care Act exchanges. If an employee has either individual or group health coverage (such as through a spouse’s employer’s plan) that meets the ACA’s definition of Minimum Essential Coverage, it also provides for reimbursement of eligible unreimbursed medical expenses. Prior to this taking effect, the Internal Revenue Service had specifically outlawed this benefit, and provided devastating penalties for employers who tried to help out their employees in this way.

There are a few points to keep in mind. First, the employer must be a small one, defined as under the fifty employee threshold. Second, the employer can’t be offering group coverage to any of its employees. Third, only the employer can contribute, and must do so on a non-discriminatory basis. The maximum annual support is $4,950 for single coverage and $10,000 for family coverage, prorated by months of coverage. The QSEHRA premium reimbursement is only for the purchase of individual, not group coverage, and is tax free for unreimbursed medical expenses if the employee is enrolled in a plan that meets the minimum essential coverage requirements under the Affordable Care Act. Finally, QSEHRA reimbursements will not count towards the Cadillac Tax if that ever goes into effect.

This could be a welcome opportunity for small businesses to provide a significant health care benefit to their employees without the hassle of purchasing group coverage. For employees, subject to the minimum essential benefit requirements, they can purchase coverage most suitable to their own situations, rather than what is best for the employer’s entire workforce.

For a more detailed explanation of QSEHRA programs, see this White Paper.

family-getty-crop-600x338As the results of the November 2016 election confirmed, there is a growing push throughout the country to require employers to provide certain types of paid leave to their employees. To date, we have witnessed the imposition of paid leave requirements through ballot initiatives, legislation, and executive orders. The most popular forms of paid leave currently being discussed include paid sick leave and paid parental leave. Some of the recent paid leave initiatives also cover things such as time off for child care under certain circumstances and domestic violence or other similar situations.

In terms of paid sick leave, voters in two states—Arizona and Washington—approved ballot initiatives last month requiring employers to provide paid sick leave to employees who work within those states. Arizona and Washington now join five other states (California, Connecticut, Massachusetts, Oregon, and Vermont) and the District of Columbia, all of which currently require or soon will require employers to provide some type of paid sick leave to their employees. Several counties and municipalities throughout the country have also imposed such requirements on employers.

With respect to paid parental leave, as we previously noted, President-Elect Donald J. Trump has offered a proposal whereby employers will be required to provide their female employees with paid maternity leave. Male employees are not included in President-Elect Trump’s proposal. Should President-Elect Trump follow through on his proposal, it will be the first paid maternity leave mandated at the federal level for private employers. It will also follow similar requirements imposed, or promised to be imposed, in a handful of states (California, New Jersey, New York, Rhode Island, and Washington), the District of Columbia, and a few other major cities in the country (e.g., New York and San Francisco).

Notably, and consistent with the trends discussed above, Democrats introduced a bill in the Ohio legislature earlier this year that would have required employers to provide twelve weeks of paid family leave to Ohio employees. Although the bill did not garner much support in the Republican-dominated Ohio legislature, should Republicans at the federal level suddenly support President-Elect Trump’s paid leave proposal, or other similar proposals, there may be renewed interest amongst Republicans for similar legislation at the state level.

In summary, this year’s election should remind employers that paid leave requirements will likely be imposed upon them in the near future, if they are not already required to provide certain forms of paid leave to their employees now. With both political parties expressing support for paid leave requirements, future changes in this regard are highly probable.

BlockedIn a much-welcomed eleventh-hour ruling yesterday, the United States District Court in the Eastern Division of Texas issued a preliminary injunction enjoining the United States Department of Labor (“DOL”) from implementing changes to overtime rules under the Fair Labor Standards Act (“FLSA”) (the “Final Rule”). The Final Rule, which nearly doubles the salary threshold for the overtime exemption, was scheduled to take effect on December 1, 2016. The injunction blocks the Rule, for now. For more information on what the Final Rule would mean for you or your company, click here.

In his Memorandum Opinion and Order, Judge Mazzant found that the Final Rule’s salary increase has the effect of excluding from the exemption some 4.2 million workers who are performing exempt-type work, and that this exclusion conflicts with the FLSA.

The Court imposed the injunction nationwide, not just within its jurisdiction. Thus, the injunction blocks (or at least delays) the Final Rule for all employers.

This is not the end. The judge’s ruling is only temporary, and could be overturned later by the same court or a higher one (including the United States Supreme Court). What is certain, however, is that the Final Rule will not go into effect on December 1, 2016 as previously expected.

So what should employers do now?

If you have already changed your compensation structure to conform to the new rule, it might be unpopular to reverse those changes, although you may have the right to do so-at least temporarily. Conversely, if you were waiting until December 1 to make any changes, you may now wait until the courts (or Congress) render a final decision. It will definitely be worth watching to see what action the new administration takes with regard to defending or disowning the Final Rule, since the litigation is certainly not going to be completed before January 20, 2017.

Marijuana w Black BackgroundPresident-elect Donald Trump has nominated Senator Jeff Sessions from Alabama as the new Attorney General. Senator Sessions has previously expressed his opposition to the legalization of marijuana. Therefore, it seems that the Cole Memo may be revisited. The Cole Memo is a major reason why marijuana continues to be legal medically and/or recreationally in 29 states, but still illegal under federal law.

On August 29, 2013, Deputy Attorney General James M. Cole published Guidance Regarding Marijuana Enforcement (the “Cole Memo”). In light of the legalization of medical and recreational marijuana occurring in many states, the Cole Memo sought to clarify the Department of Justice’s (“DOJ”) enforcement priorities. Some of the most important DOJ enforcement priorities with respect to marijuana are the prevention of:

  • Distribution to minors
  • Interstate movement
  • Use of firearms in connection with marijuana
  • Drugged driving
  • Organized crime

Outside of the above enforcement priorities, the DOJ relies on state and local law enforcement to address marijuana activities.

However, under the incoming Attorney General, the Cole Memo might be revisited. Senator Sessions has been on record as saying there is a need to foster “knowledge that this drug is dangerous, you cannot play with it, it is not funny, it’s not something to laugh about… and to send that message with clarity that good people don’t smoke marijuana.” Further, he has also been critical of President Barack Obama even mentioning marijuana:  “You can’t have the President of the United States of America talking about marijuana…You are sending a message to young people that there is no danger in this process. It is false that marijuana use doesn’t lead people to more drug use. It is already causing a disturbance in the States that have made it legal.”

One potential way to steer clear of Senator Sessions’s statements that marijuana is dangerous and addictive might be to focus on cannabidiol (“CBD”), and not tetrahydrocannabinol (“THC”). THC is the main psychoactive component of marijuana, and one of the reasons it might be labelled “dangerous.” However, CBD has no psychoactive effects and is used for relief from seizures, anxiety, and inflammations.

In the end, because marijuana is now legal medically and/or recreationally in 29 states, it is possible incoming Attorney General Jeff Sessions will be hesitant to abrogate the Cole Memo and undo all of the progress in this arena, and shutter nascent small businesses with the resultant employment loss and loss of tax revenue. However, based on his prior statements and stances, we are in uncertain times.