AHEAD OF THE GAME: Employer Information Alerts

What’s happened?

Colorado Supreme Court decision in medical marijuana case boost for employers

In the long-awaited decision in Coats v. Dish Network, the Supreme Court of Colorado unanimously held that an employer can fire an employee for using medical marijuana even if the employee is off-duty and abiding by state law. Coats is a quadriplegic who has used a wheelchair since he was a teenager, according to court filings, and he obtained a medical marijuana license in 2009. He argued that the satellite provider fired him illegally for using medical marijuana after work, because he was acting in accordance with Colorado law.

The chasm between state and federal law played a major role in the court’s decision. The core issue before the Court was whether the use of medical marijuana, in compliance with Colorado’s Medical Marijuana Amendment, but in violation of federal law, is considered a “lawful activity” under Colorado’s Lawful Activities Statute.The court reasoned that employees can still be fired because marijuana remains illegal in the eyes of the federal government.

While the court’s ruling is binding in Colorado alone, the decision may portend that states with statutes protecting “lawful” off-duty conduct will still be bound by federal law in what constitutes “lawful” conduct.

Uber driver is employee, not a contractor: California Labor Commission

In a case that could have far reaching implications for the on-demand economy, the California Labor Commission ruled on June 3 that an Uber driver should be classified as an employee, not an independent contractor.The Labor Commission cited many instances in which Uber acted more like an employer, “The reality, however, is that defendants are involved in every aspect of the operation.”

It’s important to note that the case involved one employee and that Uber has appealed the decision. However, it can spur other cases and indicates a vulnerability of Uber.

Costliest hospitals in US identified

Health Affairs released a study of the most expensive hospitals, some charging up to or over 10 times the actual cost of the service. The average across the country is 3.4 times these costs. Of the top costliest 50 hospitals, 49 are for-profit and 46 are owned by for-profit healthcare systems. One single healthcare system, Community Health Systems, owns 25 of the top 50 costliest hospitals. Hospital Corporation of America owns 14.

Since private insurance will pay negotiated rates the typical insured patient will likely be safe from these inflated costs, however, workers’ comp patients often pay the full amount these hospitals charge, therefore, it behooves employers to review the list.

Worker drug use on the rise

A longtime trend of declining drug use among workers was reversed in 2014, according to data from Quest Diagnostics Inc. Traces of drugs – from marijuana to methamphetamine to prescription opiates – were found in 3.9% of the 9.1 million urine tests conducted for employers by Quest Diagnostics Inc. in 2014, up from 3.7% in 2013. The drug most commonly found in workers’ samples is marijuana, which accounts for nearly half of all positive tests. Other common substances were amphetamines, oxycodones, such as OxyContin and benzodiazepines like Xanax.

Legalization of marijuana for medicinal and recreational use may explain some of the increase. Prescription drug abuse is also a factor. Positive tests for amphetamines, which include prescription drugs such as Adderall, essentially doubled between 2008 and 2014 (results are discarded if the worker can verify he or she was prescribed the medication by a doctor).

Employers are responding to the threat by screening for more prescription drugs. Most employment-related drug tests are administered to job candidates, usually after an offer has been extended but before employment begins. More than half of all U.S. employers required tests for all post-offer job candidates in 2011.

Heads up: things to watch

Blacklisting executive order proposed rules raises controversy

Issued on May 28, 2015 by the Federal Acquisition Regulation (FAR) Council,the proposed regulations and the guidance issued by the U.S.Department of Labor for the Fair Pay and Safe Workplaces Executive Order (E.O. 13673), also known as the ‘blacklisting order,’ have employers, attorneys and business associations concerned that a company’s contracting rights might be affected without full due process. The order, which the proposed regulations interpret, applies to prospective and existing contractors with contracts over $500,000. It provides that employers can be denied federal contracts if they have violated or have allegedly violated a number of federal, state, or local labor and employment laws within the past three years.

One particular concern has been how expansively the term “administrative merits determinations” would be interpreted.The guidance’s definition of that term is particularly broad and may jeopardize contractor’s winning new contracts or maintaining current ones. According to the guidance, “administrative merits determination” includes notices and findings that are not yet final as well as determinations that are not the result of “adversarial or adjudicative proceedings.” The notices include, but are not limited to, a WH-56 “Summary of Unpaid Wages” from DOL’s Wage and Hour Division (“WHD”), a citation from OSHA, a show cause notice from the OFCCP, a reasonable cause letter of determination from the EEOC, or any complaint issued by a regional director at the NLRB. In most cases, these notices do not establish a violation of the law.

Federal contractors and companies considering the federal contracting business should familiarize themselves with the provisions of the Executive Order and should consider submitting comments on the proposed regulations. The public has until July 27, 2015 to submit comments on the proposed regulations and the proposed guidance.

Employers anxiously await OSHA’s rule on electronic tracking of injuries and illnesses: expected September 2015

The comment period on the proposed rule that seeks to make changes to the reporting requirements of OSHA’s recordkeeping rule ended in October, and the anticipated publication date of the final rule is September 2015. Employers with 250 or more workers would have to electronically submit information quarterly, and employers with 20 or more workers in certain industries with high injury and illness rates would have to submit information annually.

In addition, a supplemental rulemaking notice last August, which states that discouraging workers from reporting injuries and illnesses through workplace policies and procedures, such as incentive-based safety programs and post-injury drug testing, would be considered a violation subject to civil penalties. Employers that retaliate against workers for reporting injuries and illnesses or failing to report in accordance with workplace policies, for example within 24 hours or at a specified location, could also face a civil penalty.

Major concerns of employers include:

  • The implications of online accident reporting database becoming accessible to the general public creates concern about privacy and unfair “public shaming”.
  • The possibility the rule could upend some employers’ safety programs.
  • The potential to use the rule to erode exclusive remedy.
  • The impact on post-injury drug testing (If a worker who’s under the influence of drugs or alcohol is injured on the job and they know they’re going to be tested, they might choose not to report it, thus, from OSHA’s view the employer is withholding data).

 

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

David Leng, CPCU, CIC, CBWA, CWCA, CRM

Author | Speaker | Certified Risk Manager | Certified Work Comp Advisor

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