Things you should know
DOL proposes rule to clarify Independent Contractor status
On September 22, 2020, the DOL released a long-anticipated proposed rule addressing when a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The proposed rule would replace the current seven factors in the economic reality test with two "core factors" and three "guidepost" factors for determining if the worker is economically dependent.
The first core factor is the nature and degree of the worker's control over the work. The rule clarifies that contractual requirements such as insurance and OSHA compliance are not an indicator of employee status. The second factor is the opportunity for profit or loss based on initiative or investment.
The three factors that can serve as guides include:
- The amount of skill required for the work.
- The degree of permanence of the working relationship between the worker and the potential employer.
- Whether the work is part of an integrated unit of production.
It's important to note that this change applies within the context of the FSLA. The test for independent contractor status under workers' compensation laws can be different and varies by state. Further, the proposed rule would not override stricter state laws.
Judge invalidates portions of DOL's joint employer standard
A federal judge issued a ruling on Sept. 8 that invalidated substantial portions of the rule that was issued in January of this year for determining when multiple businesses are joint employers and share liability for failing to pay workers minimum wages or overtime. A lawsuit brought by a coalition of state attorney generals claimed the rule weakened critical workplace protections. The Court struck down the rule's application to "vertical" employment relationships in which workers for a staffing company, franchisees, or other intermediary are contracted to another entity. It is very possible that the ruling will be appealed.
CMS clarifies reporting question for workers' comp payers
During a recent webinar, the Center for Medicare and Medicaid Service (CMS) clarified that payers do not have to report indemnity only (no release of medicals) settlements through Section 111 Mandatory Reporting because they are not considered a Total Payment Obligation to Client (TPOC). The webinar also includes reminders of reporting rules.
NCCI report: outpatient services driving up costs
A recent NCCI report found payments for facility services (hospitals and ambulatory surgical centers) contributed 6.6% of the 7.5% overall increase in medical payments per claim from 2014 through 2018. Hospital outpatient payments account for an "increasingly significant" share of medical expenditures as medical advancements such as faster-acting anesthetics and less-invasive procedures have allowed more surgeries to be performed in an outpatient setting.
Subsectors of service industry have high risk of hearing loss - NIOSH
A study by the National Institute for Occupational Safety and Health (NIOSH) found that subsectors of the service industry "have an elevated risk of hearing loss and need immediate hearing conservation efforts." The subsectors include administration of urban planning and community and rural development, solid waste combustors and incinerators industry, custom computer programming services, and elementary and secondary schools.
Most cited violations during Operation Safe Driver Week
During the Commercial Vehicle Safety Alliance's annual Operation Safe Driver Week (July 12 -18), commercial motor vehicle drivers received 2,339 citations and 3,423 warnings for speeding, 1,003 for failure to wear a seat belt, 617 for failure to obey a traffic control device, 269 for texting or using a handheld phone, and 122 for improper lane change.
I-9 temporary policies in response to COVID-19
Due to the COVID-19 pandemic, E-Verify and Form I-9 have created some temporary policies to help employers during COVID-19. Employers with entirely remote workforces as a result of the COVID-19 pandemic have until Nov. 19 to take advantage of relaxed document inspection requirements for the Form I-9 when onboarding new hires.
State News
California
- Workers Compensation Insurance Rating Bureau (WCIRB) amended its rate filing surcharges to account for COVID-19. The filing puts businesses into six sectors based on risk exposure and has surcharges of one, three, six, 12, 18, and 24 cents per $100 of payroll.
- WCIRB posted updated plans and manuals that take effect Jan. 1.
- Medical payments and claims with an opioid prescription declined 3.8% in 2019 according to the WCIRB.
- 9th Circuit court rules that Apple must compensate nonexempt employees who were subject to the bag search policy from July 2019 and who voluntarily brought a bag to work "purely for personal convenience."
Florida
- The NCCI has recommended a 5.7% average decrease in loss costs for the voluntary market, starting Jan. 1. The rate does not reflect the costs of COVID-19.
Minnesota
- The Department of Labor and Industry has published new medical fee schedules, information and instructions.
Nebraska
- Starting Oct. 1, the Workers' Compensation Court will close at 4:30 pm at its Lincoln and Omaha offices according to a recent bulletin.
New York
- The Workers' Compensation Board has finalized new medical treatment guidelines for hand, wrist, and forearm injuries, including carpal tunnel syndrome, and for work-related asthma, which take effect Jan. 1.
- The New York State Sick Leave (NYSSL) law went into effect on Sept. 30, but employees are not entitled to use NYSSL until Jan. 1, 2021.
North Carolina
- The Rate Bureau is recommending a 3.9% average loss cost decrease for the voluntary market and a 4.2% decrease in the residual market rate, both to take effect April 1, 2021. The impact of COVID-19 claims are not reflected in the filing.
Tennessee
- The Bureau of Workers' Compensation will hold a public hearing on changes to claims handling procedures required by the switch to a new electronic reporting standard on Nov. 10 at 11 a.m. in the Occupational Safety and Health Administration Hearing Room.