In March 2016, OSHA published its standards for respirable crystalline silica in general industry/maritime (29 C.F.R. § 1910.1053) and in construction (§ 1926.1153), both of which have been phased in.  OSHA has been enforcing the construction standard for about a year (since September 23, 2017), and this summer the standard for general industry/maritime became enforceable (as of June 23, 2018).  Employees in general industry can be exposed to small silica particles during manufacturing (e.g., glass, pottery, ceramics, brick, concrete, and artificial stone) and during other non-construction activities that use sand (e.g., abrasive blasting and foundry operations).   Employers who are involved in such activities, or in construction work, may be affected by the silica standards.

Consequences of noncompliance are serious for employers, not only in terms of potential health risks to their employees, but also risks of enforcement actions by OSHA (and states with OSHA-approved programs).  OSHA has been conservative and generally modest in penalties issued to date, but that is likely to change.  For example, in August 2018, a construction company was cited for violations of the silica construction standard, with a proposed penalty of over $300,000.  Employers in construction and, now, general industry, should heed this warning as a sign of things to come.

Although the two silica standards differ in certain respects, both generally require employers to develop a written exposure control plan, perform an exposure assessment and periodic monitoring, implement feasible engineering and work practice controls, ensure respiratory protection and medical surveillance where necessary, comply with housekeeping measures, and maintain recordkeeping.  The general industry standard also requires demarcation of regulated areas.  It is important that silica hazards are incorporated into an employer’s hazard communication program, as the OSHA Hazard Communication Standard is also incorporated by reference and expanded upon in the silica standards.

Both standards are now subject to enforcement, except for some general industry/maritime requirements for employees exposed at or above the action level, and some requirements for hydraulic fracturing operations in the oil and gas industry.  For enforcement of the general industry/maritime standard, OSHA gave employers an additional 30-day grace period (until July 23, 2018), as long as they were making good-faith efforts to comply.  But the time has come for compliance, inspections, and enforcement.

Employers should be prepared accordingly, consider how to handle an inspection, and consult OSHA’s guidance.  OSHA recently issued various compliance materials on its general industry/maritime webpage, including interim enforcement guidance.  Additional resources  added by OSHA to its construction work webpage include a slide presentation for training construction workers, a five-minute video on protecting workers, a series of short videos for various construction tasks, and an FAQ page.

Even with these compliance materials, the silica standards can be complex and difficult to implement in a practical manner.  Employers should consult professionals to ensure compliance and mitigate any enforcement actions that may arise.

Perhaps the most significant EEO issue percolating through the federal court system right now is whether Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.  There is now disagreement among federal appellate courts on this issue and the U.S. Supreme Court will likely decide the question at some point.  In the interim, the Equal Employment Opportunity Commission has taken the position that Title VII does prohibit discrimination on the basis of sexual orientation and gender identity.  In addition, several federal courts sitting in Pennsylvania have agreed with the EEOC’s position. See EEOC v. Scott Medical Center (W.D.Pa. 2016).

Amidst all the recent focus on how federal courts are interpreting Title VII, little attention has been paid to whether the Pennsylvania Human Relations Act (PHRA) extends protection to the LGBTQ community.  In guidance issued on August 2, 2018, the Pennsylvania Human Relations Commission (PHRC) made its position on the issue clear.  The PHRC’s “Guidance on Discrimination  on the Basis of Sex Under the Pennsylvania Human Relations Act” states that the “prohibitions contained in the PHRA and related case law against discrimination on the basis of sex…prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.”  The Guidance further states that the Commission will accept sex discrimination complaints based on this expanded definition of the term.  The PHRC does not address some of the more thorny related questions, such as whether employer health plans must cover gender transition surgery as a matter of state law.

Notably, the PHRC Guidance further states that respondents (e.g. employers) who believe the PHRA violates their free exercise of religion “are free to avail themselves of the protections found within the Religious Freedom Protection Act (RFPA).”  The Guidance outlines how a respondent should go about raising an objection under the RFPA.  Some may remember that the RFPA was the statutory basis for the Supreme Court to limit the scope of the Affordable Care Act’s “contraception mandate.”

In light of the PHRC’s recent guidance, employers should carefully consider whether it’s time to revise their policies governing harassment and equal employment opportunity.  In addition, it may be advisable to revamp harassment prevention training programs to specifically address LGBTQ concerns.  If you have any questions regarding the PHRC’s Guidance, please don’t hesitate to contact any member of our Labor and Employment Practice Group.

The Third Circuit Court of Appeals, the appeals court that has jurisdiction over federal cases in Pennsylvania, New Jersey, Delaware and the U. S. Virgin Islands, recently held that a public employer violates the First Amendment of the United State Constitution when it retaliates against an employee based on the employee’s union membership.  In reaching its conclusion, the Court distinguished between First Amendment “free speech” claims and First Amendment “association” claims.

Palardy v. Township of Millburn involved a claim by a former police officer, who alleged that the Township refused to promote him to Chief, because of his affiliation with the police officers’ union.  In support of his claim, the former officer presented testimony that the Township’s business administrator made a number of derogatory comments about his role as a union leader.  Interestingly, the former police officer retired before the Chief position actually became vacant, because he believed that he would not be selected for the position.

The Township defended the claim and argued that union affiliation is not a matter of public concern, and therefore not protected by the First Amendment.  The trial court agreed, holding that speech on behalf of the union and association with the union were not constitutionally protected conduct. On appeal, the Third Circuit analyzed and rejected the trial court’s opinion, which also happened to be the same opinion reached by the majority of other circuit courts throughout the United States.

Instead, the Third Circuit adopted the minority view, and concluded that union affiliation is protected by the First Amendment freedom of association clause.  The Court agreed with the Fifth Circuit, which had previously held that the union activity of public employees is always a matter of public concern, and therefore, no additional proof is necessary to establish that the union affiliation is protected.

Accordingly, when an association claim arises from a public employee’s union affiliation, the employee or former employee need not establish that his association was a matter of public concern or that an specific free speech issues are implicated.

Keep in mind that First Amendment claims still require that the plaintiff establish three things: (1) that he engaged in constitutionally protected conduct; (2) the defendant engaged in retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a casual link between the protected conduct and the retaliatory action.  In Palardy, the court only considered the first question, finding conclusively that union-affiliation is constitutionally protected conduct.  The court remanded the case for consideration of the additional two elements.

While we certainly believe that this decision will result in an increase in First Amendment “association” claims (anyone who is a member of a union can now establish the first element), whether any particular plaintiff will be successful will depend on whether he or she can establish the other necessary elements of the claim, and that will still depend on the specific facts of each case.

Two years ago, when the Pennsylvania Medical Marijuana Act (MMA) passed, we advised employers that the Act contained an express anti-discrimination provision providing that:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.  MMA §2103(b)(1).

Since that time, however, there has been little guidance to employers regarding the breadth or impact of this anti-discrimination provision.  This month, that changed.

On September 5th, a Federal District Court in Connecticut ruled on the impact of such an anti-discrimination provision in the hiring context.  Noffsinger v. SSC Niantic Operating Co., LLC. Because the Connecticut Palliative Use of Marijuana Act (PUMA) includes the same anti-discrimination as the PA Act, the Noffsinger decision provides guidance to Pennsylvania employers.

In Noffsinger, the employer, a health and rehabilitation facility, offered plaintiff the position of Activities Manager subject to completion of various pre-employment screenings, including a drug screen.  At that point, plaintiff advised the hiring manager that she was qualified under PUMA to use medical marijuana to treat PTSD.  Plaintiff showed the manager an empty pill container specifying the dosage information for her medical marijuana pills and stated she took the pills each evening to prevent night terrors.  Employer sent plaintiff for the drug screen, which returned positive for THC.  The hiring manager discussed the situation with HR and advised that plaintiff was disqualified from the job because “medical marijuana is not an approved prescription” and “we use federal law, which indicates marijuana is still illegal.”  Employer subsequently rescinded plaintiff’s job offer.

The plaintiff filed suit alleging, among other things, that the employer discriminated against her in violation of PUMA’s anti-discrimination provision.  The relevant portion of PUMA provides “No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.”  Discovery revealed that “plaintiff’s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff’s use of medical marijuana pursuant to her qualifying status under PUMA.”  Accordingly, the District Court granted summary judgment in plaintiff’s favor, unequivocally stating that the employer’s refusal to hire her violated PUMA’s anti-discrimination provision and that the statute contained an implied private right of action.  Notably, the District Court rejected the employer’s arguments that federal law pre-empted PUMA and that the federal Drug Free Workplace Act barred it from hiring plaintiff.

They key take-aways from the Noffsinger case are as follows:

  • The anti-discrimination provision contained in Connecticut’s PUMA provides an implied right of action;
  • A zero-tolerance pre-employment drug testing policy violates the anti-discrimination provision in the Connecticut law;
  • The Drug Free Workplace Act will not save a zero-tolerance policy, because the DFWA only requires federal contractors to “make a good faith effort to maintain a drug-free workplace.” The DFWA does not require drug testing and does not prohibit federal contractors from employing someone who uses medical marijuana outside the workplace in accordance with a program approved by state law.
  • The anti-discrimination provision contained in PUMA mirrors the anti-discrimination provision contained in the PA Medical Marijuana Act.

Based on the Noffsinger decision and the similarities between the PUMA and the PA MMA, PA employers should take caution.  Refusing to hire an applicant, who is a certified to use medical marijuana under PA law, simply because he/she has failed or will fail a drug screen likely violates the anti-discrimination provision of the PA MMA.  Instead, we recommend that employers engage in an interactive process with the employee to determine if his/her use of medical marijuana, outside of work, can be accommodated (i.e. whether the employee’s use of medical marijuana will affect the employee’s ability to perform work in a safe and productive manner).  We also recommend including exception language in your pre-employment drug testing policy.

We are glad to help you work through the interactive process, to assist with the review and revision of your policies or to otherwise discuss with you the impact of the PA MMA on your workplace.

Over the past fifteen years, wellness programs have generated more than their fair share of litigation and regulatory scrutiny – primarily over the issue of whether they comply with the Americans with Disabilities Act.  A related compliance issue that has attracted relatively little attention from courts and regulators is whether, under the Fair Labor Standards Act (FLSA), employees must be paid for time spent participating in wellness-related activities.  This question was addressed in an Opinion Letter (FLSA2018-20) issued by the U.S. Department of Labor’s Wage and Hour Division on August 28, 2018.

Opinion Letter 2018-20 specifically addresses whether an employer must pay employees for time spent in the following activities:

  1. biometric screenings (blood pressure, cholesterol levels, nicotine usage) both during and outside of their regular work hours;
  2. wellness activities such as nutrition classes, employer-facilitated gym classes, telephonic health coaching, participation in Weight Watchers and Fitbit challenges;
  3. attendance at benefits fairs to learn about employer-provided benefits, financial planning and college attendance opportunities.

The Opinion Letter concludes that employees need not be compensated for participating in the above activities if: a) their participation is purely voluntary;  b) they perform no job-related duties while participating; and c) the activities predominantly benefit the employee and not the employer.   In concluding that the activities were predominantly for the employees’ benefit, the DOL noted that participating employees may enjoy lower health insurance deductibles while also learning how to make “more informed decisions” about non-job related health issues.  Moreover, since employees were relieved of all job duties while participating, they were “off duty” as that term is defined in DOL regulations.

This Opinion Letter is helpful assurance for employers who are considering implementation of wellness programs.  If employee participation is strictly voluntary and no work is performed during the course of participating, the time will likely be deemed non-compensable under the FLSA.  However, as many employers have learned, it can be difficult to generate strong employee participation in wellness programs.  Although paying employees for their participation may not be required by the FLSA, some employers choose to do so as an incentive for participation.

If you have any questions regarding wellness programs or the Fair Labor Standards Act, please contact any member of our Labor and Employment Practice Group.

In an effort to combat opioid addiction, the Wolf Administration recently rolled out a set of opioid prescribing guidelines to assist health care providers treating workers’ compensation patients. Highlighting the need for reform, Governor Wolf stated: “[i]n 2017, there were more than 174,216 workers’ compensation claims made in Pennsylvania, and our state ranks third highest in the nation in the percentage of injured workers who become long-term opioid users.” The Administration reported that workers who received longer-term opioid prescriptions for work-related lower back injuries had a substantially longer duration of temporary disability.

Accordingly, it is no surprise that the average lost time claim for injured workers, prescribed with opioids, is 900% higher than injured workers who were not prescribed the drug. To improve these numbers, the Administration identified the following objectives for the guidelines:

  • To promote the delivery of safe, quality health care to injured workers;
  • To ensure patient pain relief and functional improvement;
  • To be used in conjunction with other treatment guidelines, not in lieu of other recommended treatment;
  • To prevent and reduce the number of complication caused by prescription medication, including addiction; and
  • To recommend opioid prescribing practices that promote functional restoration.

The guidelines include recommendations for the treatment of acute, sub acute, post-operative pain, and chronic pain. The Wolf Administration released a detailed seven-page instruction on how health care providers should approach treatment for such conditions. Generally, under the guidelines, opioid prescription should be done in combination with other treatment options, at the lowest dose, and for the shortest length of time possible.

While the Administration’s newly issued guidelines are an important step toward fighting opioid addiction in the Commonwealth, it is important to remember that they are just that—guidelines. They are not legally binding and are intended only to supplement, not replace clinical judgment. By following these guidelines, however, health care providers will play a significant role in promoting safe and effective treatment for injured workers so that they may return to work as soon and as safely as possible.

Should you have a question regarding this article, please feel free to reach out to a member of our Labor and Employment Group.

 

Another Obama-era National Labor Relations Board policy may be on the ropes.  Four years ago, the Board issued its controversial Purple Communications decision.  In that case, it determined that employees have the right to use employers’ email systems to unionize and engage in other activities protected under the National Labor Relations Act. You can access our break down of Purple Communications here.

On August 1, the Board approved an invitation to file briefs on whether Purple Communications should be modified or overruled altogether.  Some interpret this approval as a signal that employees’ ability to use their employer’s email systems to unionize and engage in non-business, protected activity could soon be in jeopardy.

In other words, another employer-friendly NLRB ruling could be on its way.  We’ll continue to follow the issue and updates will be reported here.  Stay tuned!

The Commonwealth Court issued several interesting “unreported memorandum opinions” in the past several weeks.  The Court revised its Internal Operating Rule 414 several years ago, allowing unreported or unpublished opinions to be cited and relied upon by counsel, for persuasive value, but not as binding precedent in future cases.  Thus, it is sometimes important to pay attention to unreported cases, which the Court has chosen not to circulate more broadly, to advance arguments and defenses in pending cases.

In McKee v. WCAB (Geisinger Medical Center), the employee, a nursing assistant, sustained an admitted right knee meniscus tear, while moving a patient from a wheelchair to a stretcher.  She underwent an arthroscopic surgery two months later, followed by a total knee replacement, another three months after that.  The employer refused to accept the total knee replacement, and the employee sought to amend the injury description to include “aggravation of pre-existing osteoarthritis.”  Her medical records revealed a lengthy history of knee complaints, which included as part of the work injury, at least two prior surgeries.

The employer offered medical evidence, found credible by the WC Judge, that the work incident, despite causing a discrete meniscal tear, did not cause or materially worsen the underlying arthritic condition. In legal terminology, the work incident was not a “substantial contributing factor” in her needing a knee replacement.  Specifically, Claimant’s medical expert could not provide a credible explanation of any “biomechanical, biochemical, tissue or cellular changes in the knee” that would demonstrate an aggravation of the knee osteoarthritis, which necessitated the joint replacement surgery.

In a second unreported case, Kozlowski v. WCAB (Lehigh Valley Imaging), the Court found that a medical secretary who works in a seated position while scheduling and checking in patients, answering phone calls, filing and faxing, did not sustain a work injury, when she spontaneously experienced a sudden onset of low back pain while scheduling patients at work.  The employee had injured her low back several years prior (but could not recall how that injury occurred).  The medical evidence she submitted to support her claim, reflected only the history that “her chair is very uncomfortable and is the cause of her pain.”  Her physician also noted that her radiating low back pain was “related to repetitive activity” and “prolonged sitting” at work.

The employer’s expert diagnosed a non-work related, non-specific low back pain with leg pain and numbness, and pre-existing symptomatic mild lumbar disc degeneration.  He felt that there was no precipitating event, trauma or repetitive activity to suggest that Claimant suffered a work-related lumbar spinal injury.  The Court found no error in the Judge’s acceptance of the employer’s evidence because Claimant failed to meet her burden of proof by presenting unequivocal medical testimony establishing a causal connection between her injury and the alleged work-related cause.  Such evidence was necessary, because there was no obvious connection and no “act requiring force or strain” that had caused her pain.

The above fact patterns are fairly typical in today’s aging workforce and the holdings in these cases, may be helpful in defending against various non-work-related conditions or circumstances.

Should you wish to discuss a particular workers’ compensation case or issue, please do not hesitate to contact Paul Clouser, Denise Elliott or Micah Saul, in our Lancaster office.

This morning the Supreme Court issued its long-awaited opinion in Janus v. AFCSME , holding that requiring public sector employees to pay fair share fees to unions violates the First Amendment. As we discussed in our prior posts , a fair share fee (sometimes called an agency fee) is a fee that non-union members must pay to the union to cover the expenses incurred by the union while representing bargaining unit employees.

Until this morning, fair share fees were legal under most state laws, and required by many collective bargaining agreements. This was true despite the fact that the employees paying the fees had intentionally opted not to join the union, because the union still had a legal obligation to represent all employees within the bargaining unit, regardless of whether the employee is a member of the union. These laws became common after the Supreme Court issued its 1977 opinion Abood v. Detroit Bd. of Educ., which held that fair share fees were constitutional and maintained labor peace by preventing “free riders.”

In recent years, there have been increasing challenges to the constitutionality of fair share fees and the validity of Abood. Back in 2014, we discussed the Supreme Court’s ruling in Harris v. Quinn. The Court in Harris began to question the validity of Abood and its supporting rationale. As we noted, the Court came close to overruling Abood but ultimately decided Harris on its specific facts. It held that collection of the fair share fees in the specific context (personal assistants in Illinois) violated the First Amendment. In 2016, another challenge made it to the Court, but we got a 4-4 split decision, due to Justice Scalia’s passing shortly after oral argument

Now, with Justice Gorsuch on the bench, as was foreshadowed in Harris, the Court ruled that fair share fees violate public sector employees’ right to free speech. As a basic premise, the Court recognized that the right to free speech includes the right to refrain from speaking at all. Thus, “[c]ompelling individuals to mouth support for views they find objectionable violates the cardinal constitutional command, and in most contexts, any such effort would be universally condemned.” Accordingly, forcing employees to pay fair share fees (i.e., compelling employees to speak in support of the union when they may otherwise remain silent) violates the First Amendment. Finally, the Court overruled Abood, dissecting and dismantling its labor peace and free rider justifications.

The end result of the Court’s holding is clear: “States and public-sector unions may no longer extract agency fees from nonconsenting employees. . . . Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor may any other attempt be made to collect such payment, unless the employee affirmatively consents to pay.”

The Court recognized that the loss of these fair share payments would cause unions to “experience unpleasant transition costs in the short term,” but it did not think that such a challenge justified continued constitutional violations. Rather, it pointed out that such a disadvantage must be weighed against the considerable windfall that unions received in fair share fees for the 41 years after Abood.

Surely, there will be many questions that follow and we will be here to help our public sector clients navigate this new territory.

In a recent case, decided on June 19, the Supreme Court of Pennsylvania granted appeal to clarify the scope of subrogation reimbursement under the Pennsylvania Workers Compensation Act (the “Act”).

By way of background, the Act makes an employer liable for paying disability benefits and medical expenses of an employee who sustains an injury in the course of his/her employment, regardless of whether the employer was negligent. Under Section 319 of the Act, however, employers are entitled to reimbursement for certain expenses where a third party caused the employee’s injury. Specifically, an employer (or its insurance carrier) has the absolute right to collect the workers’ compensation benefits it paid if the employee recovers from the third party who caused the injury. This is known as subrogation.

The Supreme Court in its recent decision addressed the scope of the reimbursement under Section 319 of the Act. Section 319 states, in pertinent part:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right the employe…against such third to party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe…Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe…and shall be treated as an advance payment by the employer on account of any future instalments of compensation.

The critical question the Court addressed was whether the term “future instalments of compensation” encompasses both future disability benefits and payment of future medical expenses. In other words, the Court addressed whether an employer can credit the excess third part recovery against both future disability and future medical payments.

The Commonwealth Court, our intermediate appellate court, concluded that the term “instalments of compensation” encompasses both disability and medical expenses. The Commonwealth Court reasoned that since the objective of subrogation is to protect the presumably innocent employer from ultimate liability, the credit should apply to both medical expenses and disability benefits.

In its June 19th ruling, the Supreme Court disagreed. The Court’s assessment of the issue was in some ways quite straightforward, but it requires an understanding of how an employer must pay disability and medical expenses. The long and short of it is that disability benefits are required to be paid in installments, while medical expenses are not. Accordingly, the Court found that the term “instalments of compensation” under Section 319 spoke for itself and meant “compensation that is paid in installments” which can only include disability benefits, not medical expenses.

In a nutshell, the Court found that when a workers’ compensation claimant recovers proceeds from a third-party settlement under Section 319, the employer (or the insurance carrier) is limited to drawing down against that recovery only to the extent that future disability benefits are payable to the claimant.

What does this mean in plain language?

If the third-party recovery exceeds the employer’s accrued subrogation lien (workers’ compensation payments made prior to resolution of the third-party claim), the employer can treat the excess recovery (which will be paid to the employee) as a credit against future workers’ compensation payments. However, the credit may only be taken against future disability (aka wage loss or indemnity) benefits. There may be no credit taken against future medical benefits.

For this reason, employers looking to settle with an employee who has sustained a serious work injury that was caused by the negligence of a third party should proceed with caution! This is especially true when only the wage loss portion of the claim is resolved in the settlement and the medical portion is left open (either indefinitely or for some set time in the future). When resolving a claim in this way, employers must remember that no excess recovery credit can be taken against future medical benefits. This new reality should be factored into the valuation of the case.

If you need any assistance with subrogation rights or have any questions regarding this Article, please feel free to reach out to any member of our Labor and Employment group for assistance.