H&L Quarterly – January 2020

01 Jan H&L Quarterly – January 2020

How Immigration Debates are Affecting Workers’ Comp in the US

There are a lot of moving parts in the United States’ immigration debate. One of these is the question of who gets workers’ compensation when they are injured on the job? What if the worker is an undocumented immigrant? Should a person have to decide between the risk of unaddressed injuries and the risk of deportation if they seek medical care?

Several states — including Ohio, Colorado, Montana, New Jersey, Georgia, and South Carolina — have attempted to enact laws that limit undocumented immigrants’ access to benefits that would normally be available under the workers compensation system. These laws also sought to close off undocumented workers from using the court system to redress the conditions that resulted in their getting injured in the first place. While these states did not succeed in passing their proposed laws, it was not for lack of effort, and it is likely we have not seen the end of such legislative attempts.

Getting injured at work could even raise an undocumented immigrant’s risk of deportation. When the New Orleans Hard Rock Hotel collapsed in October 2019, Delmer Joel Ramirez, a construction worker on the project, sustained a serious injury. But since he was undocumented, he has moved between detention centers and now faces the risk of deportation. The New Orleans Workers’ Center for Racial Justice has interceded on his behalf by petitioning for a stay on Ramirez’s deportation.

The crux of the debate is what sort of treatment a worker is “entitled to” after they are injured at work. Many states do have laws requiring that any worker who sustains an injury on the job, including undocumented ones, utilize the workers’ compensation system for coverage of qualifying injuries. However, the laws on this subject are a patchwork, with the Supreme Court in Pennsylvania ruling that an undocumented worker has the same rights as a legal one, while the Supreme Court in Wyoming decided the opposite.

As long as immigration remains a hot button topic, it is difficult to see how the 50 states’ views on immigration and workers’ comp will converge anytime soon.

Source: https://intpolicydigest.org/2019/12/17/how-immigration-debates-are-affecting-workers-comp-in-the-u-s/
 

Stay in The Know

The Workers’ Disability Compensation Agency is rolling out a new method of communication, utilizing a system called GovDelivery. The GovDelivery system allows users to receive updates directly to their inbox by signing up for communications based on specific workers’ compensation-related topics.

To sign-up, scroll to the bottom of the main page of the Workers’ Disability Compensation Agency website at https://www.michigan.gov/leo/0,5863,7-336-78421_95508—,00.html­­, enter your email address, and then choose the specific communications they would like to receive. You can choose to receive general updates as well as all publications regarding Health Care Service Rules, Magistrate decisions, and Appellate Commission decisions.
 

Michigan Becomes 8th State to Go Beyond Feds’ OT Rule

Michigan Governor Gretchen Whitmer told the state’s Department of Labor and Economic Opportunity to revise its overtime regulations to boost pay for hundreds of thousands of workers who won’t be helped by a recently finalized federal rule. 

Whitmer asked the department in late October to update regulations that provide employers an exemption which allows them to deny overtime to “executive, administrative or professional” workers who make more than a certain minimum salary.
The governor did not disclose her desired salary threshold for the exemption, but cited a now-defunct Obama administration plan to set the level at about $50,000. The governor’s release also cited a United Way report saying families of four need a salary of $61,000 to make ends meet.

The move makes Michigan the eighth state to take steps toward revising its overtime regulations amid the U.S. Department of Labor’s rollout of a plan to set the federal overtime standard at about $35,000. That proposal is set to take effect on January 1, 2020.

California and New York recently finalized plans to extend overtime protection to workers making as much as about $60,000, while other states including Pennsylvania and Colorado are in the process of revising their rules.

Source: https://www.law360.com/employment/articles/1213108/michigan-becomes-8th-state-to-go-beyond-feds-ot-rule?nl_pk=687d7573-74b4-4206-99d5-49a2d03cf8f6&utm_source=newsletter&utm_medium=email&utm_campaign=employment
 

Federal Agencies Crack Down on Employees’ Opioid Use

Several agencies in the U.S. Homeland Security Department (DHS) are instituting new policies to oversee their employees’ use of opioids, even when it comes in the form of a legal prescription.

Employees at Customs and Border Protection, Immigration and Customs Enforcement (ICE), Transportation Security Administration (TSA), and Secret Service are rarely caught using opioids illegally. In more than 100,000 random drug tests of these employees between 2015 and 2018, just 31 returned positive results, according to a report from the DHS inspector general (IG).

The results do not paint the full picture, however, as the IG noted that medical review officers at laboratories, who handle these drug tests, do not report positive test results to agencies if workers can document a prescription or other valid medical explanation for the positive result. 

That policy is starting to change. ICE will now require labs to notify them even when the positive result stems from a legal prescription and the Secret Service is looking to move in a similar direction by early 2020. TSA, meanwhile, is requiring employees with legal opioid prescriptions to take a “fitness for duty” test.

The number of employees testing positive for illicit opioids—meaning they had no prescription—increased sharply in 2018, though it remained a tiny fraction of the DHS workforce. Zero employees saw positive results in 2015, but in a similar number of tests performed in 2018, there were 18 employees that tested positive for illicit opioids.
The Labor Department said federal employees receiving workers’ compensation benefits will be limited to opioid prescriptions in seven-day increments, for up to 28 days. Under the new policy, all subsequent opioid prescriptions must come with a letter of medical need, which would authorize two additional 30-day supplies of the painkiller. The policy still only applies to new patients with acute issues, not those with chronic conditions.

Source: https://www.govexec.com/management/2019/11/agencies-are-cracking-down-employees-opioid-use-both-legal-and-illegal/161570/