The Occupational Safety and Health Administration’s (OSHA) electronic reporting rule requires certain establishments to report information electronically from their OSHA Forms 300, 300A and 301. The rule also requires OSHA to create a website that can be used to submit the required information. Under the rule, the first reports are due by July 1, 2017.
However, on a recent update to its recordkeeping webpage, OSHA indicated it will not be ready to receive electronic workplace injury and illness reports by the established deadline. No new reporting deadline has been adopted yet.
OSHA has not officially delayed the July 1, 2017, deadline, but its website will not be ready to receive electronic reports from employers by this time.
Affected establishments should continue to record and report workplace injuries as required by law and should monitor these developments to learn whether a new reporting deadline will be adopted.
- The rule requires OSHA to create and provide a secure website to transmit electronic information.
- Under the rule, OSHA will publicize the information received from the electronic reports.
- The final rule has met significant opposition and its validity is currently being challenged in federal court.
May 12, 2016
OSHA issues its final electronic reporting rule. The first reporting deadline is set for July 1, 2017.
May 16, 2017
OSHA indicates its reporting website will not be ready to receive the first reports by the July 1 deadline.
On May 2, 2017, the House of Representatives passed the Working Families Flexibility Act (also known as H.R. 1180). If approved, H.R. 1180 would authorize private employers to offer compensatory time instead of overtime pay for nonexempt employees who work more than 40 hours per week. H.R. 1180 still needs approval from the Senate and the executive branch before it becomes law.
Compensatory time off is already a common practice for many federal and state employers, but it is not currently allowed by the Fair Labor Standards Act (FLSA) for private employers. H.R. 1180 would amend the FLSA to allow this practice, if certain conditions are met.
Because H.R. 1180 is not yet law, no action steps are currently required of any employers.
This Compliance Bulletin is provided for informational purposes only, to assist employers in understanding the changes H.R. 1180 would bring to current overtime compensation practices in the private sector.
Compensatory Time Off
Currently, the FLSA requires employers in the private sector to pay overtime wages to nonexempt employees for all hours of overtime worked. If approved, H.R. 1180 would amend the FLSA to allow private sector employers to provide either overtime pay or compensatory time off to nonexempt employees who work overtime hours.
H.R. 1180 is proposing that compensatory time off be calculated at the rate of 1.5 hours of compensatory time off for every hour of overtime work. As it stands, H.R. 1180 would expire within five years of its enactment. In addition, the bill would limit the amount of compensatory time off eligible employees may receive to 160 hours.
H.R. 1180 would only apply to private sector employers, meaning that if it were to be adopted, it would not affect current compensatory time off requirements for public sector employees.
Voluntary Agreement and Usage
Under H.R. 1180, both employers and employees would have to agree to compensatory time off instead of overtime wages. In unionized environments, compensatory time off would have to be allowed by any applicable collective bargaining agreement. The agreement would need to be preserved in writing and take place before any compensatory time off begins to accrue.
Finally, the language of H.R. 1180 would prohibit employers from coercing or forcing employees to agree to receive or use compensatory time off instead of overtime wages. This means that employers would not be allowed to directly or indirectly intimidate, threaten or coerce (or attempt to intimidate, threaten or coerce) employees to agree to receive or use any accrued compensatory time off.
Under H.R. 1180, employees would be eligible to receive compensatory time off after 1,000 hours of continuous employment during the previous 12 months.
Payment for Unused Compensatory Time
H.R. 1180 would require employers to allow employees to use any earned compensatory time off within a reasonable period, as long as this does not unduly disrupt the employer’s operations.
However, employers would be required to provide monetary compensation to their employees for any compensatory time off that is not used by the end of the calendar year, although employers would be able to determine a different 12-month period as long as it remains consistent.
Unused compensatory time would need to be paid at a rate that would at least be equal to the employee’s regular wage rate. The employee’s regular rate would be the higher of:
- The regular wage rate at the time the overtime work was performed; or
- The regular wage rate at the time the unused compensatory time off must be paid.
Payment for unused compensatory time off would be required within a month of the end of the 12-month period.
We will continue to monitor the progress of this bill through the legislative process and update you as more information becomes available. In the meantime, contact Scurich Insurance for more information regarding the FLSA and overtime wage payment requirements.
Responsible employers in the construction industry know the importance of implementing a safety and health program to prevent workplace injuries. Effective safety programs have seven core elements.
- Management leadership—provides the resources needed to implement an effective safety and health program.
- Worker participation—allows a program to benefit from the workers’ knowledge base and empowers workers to provide feedback.
- Hazard identification and assessment—identifies the root cause of construction injuries.
- Hazard prevention and control—helps employers provide workers with safe and healthy working conditions.
- Education and training—provides workers and managers with a greater understanding of the safety and health program.
- Program evaluation and improvement—verifies that the program is being implemented as intended.
- Communication and coordination for employers on multiemployer work sites—encourages employers and contractors to consider how the work they do can affect the safety of other workers at the job site.
The seven core elements are interrelated and are best viewed as an integrated system. Actions taken under one core element can, and likely will, affect other core elements. For example, the education and training core element supports the worker participation core element.
It is important to achieve progress in each core element in order to benefit from a safety and health program. Contact Scurich Insurance for more information regarding recommended practices for safety and health programs in construction.
OSHA Rescinds Walkaround Memo
OSHA has withdrawn its 2013 “Walkaround Letter of Interpretation” that allowed union officials to participate in inspections at nonunionized workplaces.
The letter was viewed by employers as an attempt by the Obama administration to support and expand union representation to nonunion workplaces. However, OSHA has now withdrawn the union policy language featured in the letter, calling it unnecessary.
OSHA compliance officers may still attempt to include outsiders to participate in a walkaround if there is good cause. One example of good cause would be due to the compliance officer lacking technical or language expertise that is necessary to the inspection. Such cases are rare, however, as OSHA usually provides the needed expertise from within the agency.
OSHA Program to Target Southern Auto Part Makers
OSHA has renewed a Regional Emphasis Program (REP) for auto part manufacturers in Alabama, Georgia and Mississippi. The REP was originally established to reduce workplace hazards in the auto parts industry, including electrical, struck-by, caught-in and crushing hazards.
Information released by OSHA revealed that the REP led to 46 safety inspections in 2016, which resulted in 143 violations. Now that the REP has been renewed, OSHA will continue to target auto parts manufacturers in the region for inspections.
Trump Administration Will Not Label China as a Currency Manipulator
President Donald Trump recently announced that his administration will not officially label China as a currency manipulator. This is a reversal from previous statements released by Trump, as he stated during his presidential campaign that he would take steps to label the country as a currency manipulator during his first days in office.
Many experts believe that the Chinese government artificially weakens its own currency to make its goods more affordable for American consumers. However, Trump recently stated that China hasn’t manipulated its currency in months, and that the current strength of the U.S. dollar is hurting exports of domestic goods.
This policy reversal is seen by some as a move to maintain China as an ally against North Korea after recent political unrest in the area. However, the decision to not label China as a currency manipulator has already had an impact. According to S&P Global Platts, an energy information provider, the stocks of 10 major U.S. steel producers fell after Trump’s announcement.
Cyber Insurance on the Rise in Manufacturing
Before now, cyber insurance has usually been purchased by consumer-facing businesses, such as health care providers, retailers and financial institutions. However, cyber attacks are now capable of taking control of manufacturing plants and products, and many businesses in the industry are purchasing cyber insurance policies to protect themselves.
According to Advisen, an insurance data provider, manufacturers paid nearly $37 million in cyber insurance premiums in 2016, an increase of 89 percent compared to 2015. Get in touch with us today at 831-661-5697 to discuss a cyber insurance policy and protect your business.
In the November 2016 elections, the use of medical marijuana was approved through four state ballot measures, bringing the total to 28 states and the District of Columbia that have legalized medical marijuana in some form. Additionally, the District of Columbia and eight states—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington—have legalized recreational use of marijuana in some form.
However, under the Controlled Substance Act of 1970, marijuana is classified as a Schedule I substance with no accepted medical use and a high potential for abuse, making it illegal at the federal level. Amid state and federal law contradictions, many workers’ compensation payers are choosing to deny coverage for medical marijuana. Since medical marijuana isn’t currently included in workers’ compensation treatment guidelines, they have every right to do so.
As such, the future of medical marijuana in workers’ compensation remains unclear, and state and federal lawmakers have their own opinions.
While states have different views on the use of medical marijuana, there are various state rulings that may be setting a new precedent in the workers’ compensation and medical marijuana debate.
New Mexico became the first state to propose a reimbursement rule for medical marijuana in November 2015. The state’s 2016 fee schedule set the maximum reimbursement rate for medical marijuana at $12.02 per gram for injured workers. Under the state’s Lynn and Erin Compassionate Use Act, authorization was considered equivalent to a prescription—requiring employers to reimburse injured workers for medical marijuana. Furthermore, this process allowed insurance carriers to avoid directly paying for a Schedule I substance.
In 2015, Minnesota’s health commissioner decided to include “intractable” pain as a condition that could be treated with medical marijuana. According to the Minnesota Department of Health, intractable pain is defined as, “pain whose cause cannot be removed and, according to generally accepted medical practice, the full range of pain management modalities appropriate for this patient has been used without adequate result or with intolerable side effects.” This decision has opened the door for claimants to request that their workers’ compensation insurers cover the cost for medical marijuana.
The outcome in a workers’ compensation case involving medical marijuana was different than those in New Mexico and Minnesota, when an employee who sustained a back injury while making deliveries requested reimbursement for medical marijuana. According to Maine’s Workers’ Compensation Act of 1992 (MWCA), “an injured worker is entitled to reasonable and proper medical, surgical, and hospital services, nursing, medicines, and mechanical and surgical aids, as needed, paid for by the employer.”
However, the employer argued that medical marijuana-related services should not be covered under the MWCA, and that by covering such services, the employer would be in violation of federal law and subject to the risks of prosecution. In support of its argument, the employer also cited Maine’s medical marijuana statute, which states that it may not be construed to require a government medical assistance program or private health insurer to reimburse an individual for costs associated with the medical use of marijuana. The employer won the case.
Other states, including Arizona and Montana, are in agreement with Maine and have taken the position that a workers’ compensation insurance carrier cannot be compelled to pay for medical marijuana because the possession and use of marijuana is still illegal under federal law.
Workers’ compensation payers rely on evidence-based guidelines when making treatment decisions. Since medical marijuana is considered a Schedule I substance and is not included any workers’ compensation treatment guidelines, many payers are opting to deny coverage.
Benefits of Covering Medical Marijuana
There is significant interest in using medical marijuana as an alternative to opiates for the management of chronic pain. Furthermore, alternative treatments may pave the way for medical marijuana, as meditation, exercise, mindfulness, yoga and cognitive behavioral therapy have proven successful in eliminating opioid use. However, insurers have historically been more likely to pay for opioids than alternative treatments.
Drawbacks of Covering Medical Marijuana
In states that have legalized medical or recreational marijuana, workplace safety is a concern. It is the employer’s responsibility to foster an environment devoid of harmful hazards. If a company employs a medical marijuana user, this person might experience side effects that could lead to a workplace injury.
Furthermore, drug-free workplace policies could be affected since marijuana continues to be categorized as a Schedule I substance. For example, although an employee may be authorized to use medical marijuana, he or she could still be terminated if found positive for marijuana in a random drug test.
It’s too early to anticipate President Donald Trump’s official policies with regards to medical marijuana. However, on the campaign trail, he said he was in favor of rescheduling marijuana as a Schedule II substance, which is in contrast to the Obama administration’s stance. In 2016, former President Barack Obama claimed that more research was needed into the drug’s possible medical benefits.
New legislation and court decisions are continuing to develop, which will affect workers’ compensation treatment decisions. For example, on Aug. 29, 2013, the Department of Justice published a memorandum authored by former Deputy Attorney General James Cole, outlining a new set of priorities for federal prosecutors operating in states which had legalized the use of marijuana. The “Cole memo” encouraged law enforcement agencies to focus on the most critical federal priorities, such as preventing the distribution of marijuana to minors. By doing so, the federal government is taking a more hands-off approach in jurisdictions that have enacted laws legalizing marijuana.
Also protecting the marijuana industry is the Rohrabacher-Farr amendment, which prohibits the federal government from spending money to target medical marijuana businesses. However, the federal government could still go after small businesses that don’t have the resources to fight. And if this amendment isn’t renewed by Congress annually, the protection will disappear, and the industry could be set back for years.
Until the discrepancy between state and federal law is resolved—particularly in regard to drug-free workplace policies—Scurich Insurance will continue to monitor the landscape for new developments that could have ongoing ramifications for the industry and could forecast marijuana reclassification.
Professional liability insurance is essentially there to protect your reputation as a professional.
Things happen. There are unforeseeable circumstances that can botch even the easiest job in the most capable hands. When that happens, most contractors, consultants, professionals and business owners are more than happy to help cover the cost to the client, to injured parties and so on. That’s why the insurance policy is there.
Professional liability is there to protect specifically against claims of negligence by covering the court costs. These are the cases that we fight not because we don’t want to foot the bill, but because a reputation is on the line, and at the end of the day, all any professional really has to lean on is a trusted name. That is the foundation of success in any field. You can lose your office space, you can lose your clients, you can lose some of your best employees, and you can always rebuild from there. Once your name has been stripped of value, however, there’s not much left to do. Top talent will avoid the association with a negligent employer and clients and customers will jump ship.
These are the cases that you want to fight even at a financial loss. Even if you know that you’re not at fault for a visitor who suffered an injury on your property, it may make more sense to take responsibility than to fight it in court and spend more money in front of the judge than you would have on the doctor bill. The more comprehensive your professional liability policy, the less likely you are to have to do this when your reputation is on the line.
Of course, you can’t always have the case dismissed, so professional liability will cover the costs awarded to the plaintiff in a civil suit should you lose the case, meaning that you will be covered even where general liability coverage does not kick in. However, the real value in the policy is in allowing you to defend yourself against that civil suit in the first place, and, wherever possible, protecting your reputation within your industry.
Medical professionals rely on malpractice insurance for the same reasons, while insurers and lawyers will rely on errors and omissions, or E&O insurance. In any field where a professional mistake can prove incredibly costly or harmful, you will find some form of professional liability insurance being sold.