COVID-19: State Restricts Medical Procedures and Public Gatherings

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The Alabama State Health Officer imposed widespread restrictions on a number of activities.

On March 19, 2020, the Alabama State Health Officer issued a statewide order “Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19.”  This order follows on the heels of a March 17 order imposing similar restrictions in Blount, St. Clair, Shelby, Tuscaloosa and Walker Counties.

The order restricts in-restaurant dining; elective medical procedures; trips to the beach and more.  The new order has 7 categories of restrictions:

Effective immediately, all elective dental and medical procedures shall be delayed.”  The order gives no clarity on the length of delays.  Presumably, a delay might cause some procedures to transform from “elective” to medically necessary.

Effective immediately, all hospitals and nursing homes /Long Term Care Facilities shall prohibit visitors and non-essential health care personnel, except for certain compassionate care situations such as maternity and end of live.

Effective at the close of the school or business day on March 19, 2020, all schools, colleges and universities are closed.  There are limited exceptions for certain preschools and childcare centers.

Effective at 5:00 PM on March 19, 2020:

-All gatherings of 25 persons or more, or gatherings of any size that cannot maintain a consistent six-foot distance between person, are prohibited.  This Order shall apply to all gatherings, events or activities that bring 25 or more persons in a single room or a single space at the same time.

-All beaches shall be closed.  The definition of “beach” includes “the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points.”

-All restaurants, bars, breweries or similar establishments shall not permit on-premises consumption of food or drink.

a.  Such establishments may continue to offer food for take-out delivery provided social distancing protocols including maintaining a consistent six-foot distance between persons are followed.

 b. Such establishments are strongly encouraged to offer online ordering and curbside pickup of food.

c. Hospital food service areas are excluded provided they have their own social distancing plan.

Effective March 20, 2020, all Senior Citizen Center gatherings shall be closed.

Potentially organizers of events can apply with the State Health Officer for an exemption from these restrictions, but the request must be submitted AT LEAST two weeks in advance of any scheduled event.

The order does not impose an explicit time limit on these restrictions but does say that a determination on whether to extend the order will be made “prior to April 6, 2020.”

Here is a link to a tweet by Chris England with the order: COVID-19 Tweet

Here is a link to the order itself: COVID-19 Order

 

Employers Must Provide Paid Leave Related To Coronavirus.

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In response to work stoppages and slowdowns related to the coronavirus, the United States Congress is requiring small employers to provide employees with paid leave – potentially up to 12 weeks.  On March 14, 2020, the House of Representatives passed House Resolution 6201, the “Families First Coronavirus Response Act.”  After extensive criticism, the House implemented “technical corrections” to the Act on March 16, 2020.  Today (March 18, 2020), the United States Senate approved the House’s legislation, unchanged.  The provisions of the Act were negotiated between Treasury Secretary Steven Mnuchin and Speaker of the House Nancy Pelosi.  President Trump has tweeted his support for the Act and is expected to sign it.

The Act will become effective 15 days after it is enacted.  Therefore, employers need to get ready for the following requirements.

I. Emergency Family and Medical Leave Expansion Act

The first provision of the Act is called the Emergency Family and Medical Leave Expansion Act.  It expands the Family and Medical Leave Act and makes crucial changes to the ordinary framework of the FMLA.   The Emergency FMLA is detailed, but the following are the most important requirements:

Eligible employees.  Under the “traditional” FMLA, an employee must work for a year and at least 1,250 hours to obtain unpaid leave.  Under the Emergency FMLA, an employee only has to work 30 days to be eligible for paid leave.

Covered employers. Under the “traditional” FMLA, all employers with 50 or more employees must provide unpaid leave.  Under the Emergency FMLA, all employers with fewer than 500 employers must provide paid leave.

Qualifying need for leave.  An employee is only entitled to paid leave if they have a “qualifying need” for leave, which means “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to a public health emergency.”  This is a substantial change from the original version passed by the House on March 14 – which was much more expansive.

Amounts of paid and unpaid leave.  The first period of leave required by the Emergency FMLA is a 10-day period of unpaid leave.  During that time, the employee can substitute vacation, personal or sick leave, but the employer cannot require the employee to do so. After 10 days, the employer is required to provide 10 weeks of paid leave, paid at two-thirds (2/3) of the employee’s regular rate of pay.  The revised Act limits the dollar amount of paid leave to $200 per day and $10,00 in the aggregate.

Exception for smaller employers.  The Act authorizes the Secretary of Labor to enact regulations exempting employers with fewer than 50 employees if the leave would jeopardize the viability of their business as a going concern.

Job restoration after leave.  Generally, employers must restore employees to their prior positions after the expiration of their need for leave.  There is an exception for employers with fewer than 25 employees if the employee’s position no longer exists due to operational changes occasioned by a public health emergency (i.e., downturn in business).

II. Emergency Paid Sick Leave Act

In addition to the Emergency FMLA, the new Act also contains the Emergency Paid Sick Leave Act, which implements the following additional requirements.

Eligible employees.  There is no 30-day payroll requirement.  All employees are immediately eligible for this leave.

Covered employers.  Any employee with fewer than 500 employees must provide Emergency Paid Sick Leave.

Qualifying need for leave.  Unlike the Emergency FMLA, there are numerous qualifying reasons for leave.  The employee must be unable to work (or telework) because:

(1) the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

(2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

(3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

(4) the employee is caring for an individual who is subject to quarantine or isolation order, or who has been advised to self-quarantine due to COVID-19;

(5) the employee is caring for a son or daughter whose school or place of care is closed, or the child care provider is unavailable, due to COVID-19 precautions; or

(6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Amounts of paid and unpaid leave.  Full-time employees are entitled to 80 hours (two weeks) of paid sick leave.  Part-time employees are entitled to leave equaling the number of hours the employee works, on average, over a 2-week period.  The rate of pay for paid sick leave is the employee’s regular rate of pay unless the employee takes leave for reasons (4), (5) or (6).  Then, the rate is two-thirds (2/3) of the regular rate.

There are two different monetary limits.  If an employee takes leave for reasons (1), (2) or (3) above (i.e., quarantine or symptoms while seeking diagnosis) leave is limited to $511 per day and $5,110 in the aggregate.  If an employee takes leave for reasons (4), (5), or (6)  (care for others or school closure), leave is limited to $200 per day and $2,000 in the aggregate.

Exceptions.  The Secretary of Labor is authorized to draft regulations: (1) excluding certain health care providers and emergency responders; (2) exempting businesses with fewer than 50 employees where imposition of the paid leave requirements would jeopardize the viability of the business as a going concern; and, (3) ensuring consistency with paid family leave, paid sick leave and tax credit requirements.

Limitations on employers.  The Emergency Paid Sick Leave Act does not expressly require restoration to the same job, but it does prohibit discharge, discipline or discrimination against employees who request paid leave.  The Act also prevents employers from requiring employees to find a replacement or using accrued PTO or sick leave instead of the Emergency Paid Sick Leave.

III.          Tax Credit

The Act includes refundable tax credits for employers who are required to provide Emergency FMLA or Emergency Paid Sick Leave.  Obviously, those credits are only awarded to covered employers and not to larger employers who gratuitously offer such leave.

Burned Home; Shot Dog; False Arrest: Country Music or Civil Rights?

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David Allan Coe could have written the facts of a recent false arrest case from North Alabama.

David Allan Coe once wrote that the “Perfect Country and Western Song” would include lyrics about Mama, trains, trucks, prison and getting drunk.  A recent false arrest decision issued by Judge Madeline Haikala comes close to meeting those requirements in real life.  See Junkins v. DeJong, No. 5:17-cv-00350-MHH, 2020 WL 1083203 (N.D. Ala. Mar. 6, 2020).

As Judge Haikala noted, the facts of this case are truly tragic for Richard Junkins.  On March 6, 2015, his family’s mobile home caught fire and burned completely.  The water used to extinguish the fire flooded his yard, and his truck became stuck in the mud when the family returned to the home.  Around 10 or 11:00 p.m., Mr. Junkins saw a car driving down the road beside his house, and the family dog, “Mr. Bear,” gave chase.   Mr. Junkins ran after the dog and waved his arms to get the attention of the driver and prevent Mr. Bear from being struck.  Out of breath, he sat down at the curb by his mailbox as the car turned around. Mr. Junkins began walking back to his house and told the driver to “go on.”

The driver was Madison County Sheriff’s Deputy Daniel DeJong.  Deputy DeJong walked up the driveway with his gun pulled and shone a flashlight on Mr. Junkins.  Mr. Junkins walked towards Deputy DeJong and was 12 to 15 feet away when Deputy DeJong turned his flashlight on Mr. Bear who was laying “beside the area that used to be the door of the home.”  Mr. Bear barked twice, but did not move towards Deputy DeJong, who fired twice, killing the dog. Mr. Junkins “became so overcome with emotion that he passed out.”

Deputy DeJong arrested Mr. Junkins for obstructing vehicular or pedestrian traffic and reported that Mr. Junkins was “extremely intoxicated.”  Nevertheless, Deputy DeJong acknowledged that he did not have a conversation with Mr. Junkins and did not observe any alcohol containers lying around.  Mr. Junkins was acquitted by a jury of the traffic obstruction charge.

Mr. Junkins sued Deputy DeJong for violating his civil rights and committing a false arrest.  Deputy DeJong asked Judge Haikala to dismiss that lawsuit using the legal defense of qualified immunity.  Under that defense, Deputy DeJong would be entitled to dismissal if he had “arguable probable cause” to arrest Mr. Junkins for any offense.  Rather than insisting upon the traffic obstruction charge, Deputy DeJong argued that he could have arrested Mr. Junkins for public intoxication because he “was confronted with an erratically and bizarrely acting Junkins who passed out in front of him for no apparent reason.”  Nevertheless, Judge Haikala reached a different conclusion:

No reasonable officer, knowing that he had just entered a citizen’s property, stood 12 to 15 feet from the citizen, and shot the citizen’s dog dead on the citizen’s property, would conclude that the citizen’s loss of consciousness was the result of intoxication. (Doc. 31, ¶¶ 17–19). A reasonable officer in the same circumstances with the same knowledge likely would conclude that Mr. Junkins passed out because he witnessed his dog being killed beside (it would be reasonable to infer) his still-smoldering house.

Junkins, 2020 WL WL 1083203 at *4.

Thus, Judge Haikala refused to dismiss the false arrest claim and ordered the parties to proceed with the discovery phase of the lawsuit.  Notably, this case was decided on a motion to dismiss filed by Deputy DeJong.  Legally, Judge Haikala was required to believe all of the factual allegations that Mr. Junkins put in his complaint.  Potentially, Deputy DeJong could appeal to the Eleventh Circuit Court of Appeals or he could proceed with discovery and attempt to obtain dismiss with a motion for summary judgment after the “real facts” are discovered.

 

Coronavirus: What Employers Need To Know.

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Employers have fears about the spread of coronavirus in the workplace.

I’ve gotten a few calls this week from clients concerned about coronavirus.  My clients have employees returning from travel to China/Korea/Japan and want advice on protecting the employee, their customers and co-employees.  From a practical perspective, the Centers for Disease Control have issued guidance for business owners on responding to coronavirus in the workplace:  CDC Coronavirus Guidance.

I.  Legal Issues

From a legal perspective, employers have two primary statutes that relate to their employees and coronavirus:  (1) the Occupational Safety and Health Act (“OSHA”); and, (2) the Americans with Disabilities Act.

OSHA has a “General Duty Clause” that requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” In short, employers have a general duty to protect employees from hazards. That’s great, in concept, but how does it apply to coronavirus?

At this stage, employers should take common-sense steps to prevent the spread of contagious illnesses in the workplace. Most employers already have these steps in place. Provide hand sanitizer at multiple locations. Regularly clean and disinfect public areas. Make sick employees stay home. If the cornavirus threat spreads in the United States, there may be increased duties under OSHA for employers to provide personal protective equipment and/or take other measures. But, those are not necessary at this stage.

Generally, the ADA prohibits employers from taking an adverse job action against an employee  who is disabled or “regarded as” disabled.  So, would the ADA prevent an employer from suspending or terminating an employee who is infected with coronavirus or suspected of infection?  I have strong doubts that the ADA would apply.  But, I will give my lawyerly disclaimer:  Only a judge and/or jury can make a final determination on legal liability.  In particular, the transitory nature of any virus is unlikely to amount to a disability under the ADA.  Moreover, the Eleventh Circuit has expressly found that an employer’s fear an employee might develop Ebola in the future does not amount to “regarding” the employee as disabled.  Here’s a link to a blog post that I wrote about that case:Fear of Future Infection and the ADA.  That analysis would seem to apply equally to fear of contraction of coronavirus.

Employers may also want to require their employees to undergo a medical examination.  Even though coronavirus might not be a disability, the ADA generally imposes restrictions on medical examinations regardless of an employee’s status as disabled.  The EEOC previously issued guidance on steps that an employer can properly take under the ADA relating to a pandemic.  Here’s a link to that guidance:  EEOC/ADA Pandemic Guidance.  In general, employers can ask employees about potential exposure to coronavirus; ask employees how they are feeling; and, require symptomatic employees to stay home.

II.  Practical Advice

If one of my Alabama clients has a genuine fear about coronavirus, I have advised them that they should allow asymptomatic employees returning from “hot spots” to work from home, if possible.  If work-from-home is not an option, then consider requiring the employee to stay home — and pay the employee at the employer’s expense.  If overhead makes gratis leave infeasible, consider requiring the employee to use accumulated paid leave.  Employers should consult with counsel before requiring an asymptomatic employee to take unpaid leave.

Medicare Secondary Payer: Insurance Fails to Protect Medicare

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The Eleventh Circuit removed one potential defense that insurance companies possessed to defending claims under Medicare’s Secondary Payer provisions.

The Eleventh Circuit just made it easier to sue insurance companies that fail to protect Medicare’s interest as a secondary payer.  See MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., No. 18-14980, 2020 WL 728625 (11th Cir. Feb. 13, 2020).  By law, Medicare is a secondary payer.  That means Medicare does not pay for medical bills if somebody else is responsible for the bill.  This is an important requirement for insurance companies.  For example:  Driver A runs a red light and strikes the car operated by Driver B.  Driver B is a Medicare beneficiary.  Driver B goes to the hospital and Medicare pays for the hospital bills.  But, Driver A (and his/her insurance company) are responsible for the injuries.  Because Medicare is a secondary payer, it is entitled to recover its payments from Driver A’s insurance.

Over the last decade or more, Medicare has become increasingly assertive in recovering its payments.  As a result, many insurance companies take active measures to protect Medicare’s interest.  In almost any type of case (including employment disputes), those companies will take active steps to ensure that Medicare has not paid medical bills and will not be required to pay medical bills related to the dispute in the future.  Or, if Medicare has paid bills, the insurance company ensures that Medicare is repaid.

Some insurance companies are not as diligent as others, however.  For example, in MSPA Claims, Kingsway Amigo Insurance settled a car-wreck claim with a Medicare beneficiary for $6,667, but failed to consider that Medicare had paid $21,965 in medical bills.  MSPA Claims sued Kingsway Amigo on behalf of Medicare.  But, Kingsway Amigo was able to convince a federal judge that the lawsuit should be dismissed because of the following provision of the Medicare Secondary Payer Act:

Notwithstanding any other time limits that may exist for filing a claim under an employer group health plan, the United States may seek to recover conditional payments in accordance with this subparagraph where the request for payment is submitted to the entity required or responsible under this subsection to pay with respect to the item or service (or any portion thereof) under a primary plan within the 3-year period beginning on the date on which the item or service was furnished.

42 U.S.C. 1395y(b)(2)(B)(vi).

According to Kingsway Amigo, that provision required Medicare to notify Kingsway Amigo of its payments within three years of making those payments.  Because Medicare failed to do so, Kingway Amigo argued that it could not be sued under the Medicare Secondary Payer Act.

On appeal, the Eleventh Circuit rejected that argument.  At this point, I will note that MSPA Claims contains a lot of legalese, and the author of the opinion, Judge Newsom, does a fantastic job of making the decision understandable.  In short, he found that the three-year requirement of the Act “doesn’t operate as any sort of prerequisite — for anyone.  Rather than imposing a strict requirement, the provision simply allows Medicare to overcome any time limits prescribed by an employer’s group health plan that might otherwise prevent it from requesting reimbursement.  Put simply, the claims-filing provision is a ‘get to’ not a ‘have to.'”  MSPA Claims, 2020 WL 728625 at * 6.  In other words, Medicare is not barred from suing an insurance company simply because it failed to notify that insurance company of claims within three years of making payments.

The MSPA Claims decision simply reinforces that insurance companies and their lawyers need to ensure that Medicare has not made any payments to a claimant/plaintiff before settling a claim.  If an insurance company fails to protect Medicare’s interest, at least one defense has now been rejected by the Eleventh Circuit.

 

 

Winning! Alabama Supreme Court Rules In Favor of My Client.

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The Alabama Supreme Court recently ruled in favor of the Cleburne County Commission in a dispute with its former County Engineer.

It feels good to win! And, if you operate an employment law blog and win, you should be able to talk about the case.  So, that’s what I’m doing here.  My client, the Cleburne County Commission, recently won a decision from the Alabama Supreme Court in a dispute with its former County Engineer.  See Robbins v. Cleburne County Commission, No. 1180106, 2020 WL 502541 (Ala. Jan. 31, 2020).

Shannon Robbins was the Cleburne County Engineer.  He signed an employment contract with the Cleburne County Commission for the five-year period of February 1, 2011 to January 31, 2016.  The contract also contained an option provision by which Mr. Robbins could extend the contract to a sixth-year if he provided at least 60 days notice of his desire to extend.  On October 13, 2015, Mr. Robbins attempted to exercise that sixth-year option.  But, the County Commission claimed that the option was not valid and terminated his employment effective January 31, 2016.

Mr. Robbins sued the Commission for breach of contract and I was retained to represent the Commission.  In the trial court, I moved to dismiss the complaint because Alabama’s general law for County Engineers provides that counties can only contract with engineers for five-year terms, and Mr. Robbins’ option created an invalid six-year contract.  See Ala. Code § 11-6-1.  Mr.  Robbins countered that the Alabama Legislature passed a special statute for the Cleburne County Engineer under which the engineer must be employed “at the pleasure” of the Commission.  See Ala. Code § 45-15-130.01.  He argued that the County’s “pleasure” was to employ him for six years.

I was able to convince the trial court that the phrase “at the pleasure” actually meant that Mr. Robbins must be an “at will” employee.  As a result, any written contract for a specific term violated the statutory mandate that Mr. Robbins be employed “at will.”  After the trial court granted my motion to dismiss, Mr. Robbins appealed to the Alabama Supreme Court.

The Alabama Supreme Court ordered the parties to appear for oral argument in Montgomery on December 4, 2019.  During that argument, some of the Justices appeared concerned that Cleburne County’s local statute might be an invalid, unconstitutional variance from Alabama’s general statute on County Engineers.  I argued that, regardless of the constitutionality of the local act, my client should win.  If the local act was unconstitutional, then Alabama’s general five-year limit on engineer contracts controlled and Mr. Robbins’ lawsuit for a sixth-year was impermissible.  If the local act was valid, then the phrase “at the pleasure” required “at will” employment — invalidating the contract and the breach of contract lawsuit.

In its decision, the Supreme Court effectively adopted that argument.  Instead of ruling on the constitutionality of the local act, the Court found that the Cleburne County Commission was entitled to prevail under either statute.

The Robbins case is also important for two reasons.  First, Alabama’s appellate courts had not previously ruled that an option-year for a contract would be considered an extra year for purposes of statutes limiting the length of government contracts.  There were several opinions from the Alabama Attorney General supporting that proposition.  But, Robbins clearly holds that an option year is an impermissible extension.  Second, the Court clearly found that the phrase “at the pleasure” mandates “at will” employment.  I relied upon an older case from the Alabama Court of Appeals and more-recent cases from other states to support that proposition.  The Robbins case is the first decision from the Alabama Supreme Court on the issue.

Now that I’ve celebrated, it’s time to get back to representing other clients.

OSHA: Contractors Liable for Conditions in Client’s Facility

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OSHA can hold contractors liable for defects in facilities that they do not own.

A recent decision from the Eleventh Circuit Court of Appeals demonstrates that independent contractors should actively communicate with their clients about dangerous work conditions.  See Packers Sanitation Services, Inc. v. Occupational Safety and Health Rev. Comm., No. 19-11537, 2020 WL 115472 (11th Cir. Jan. 10, 2020).  Packers Sanitation Services, Inc. (“Packers”) provides sanitation services to poultry processing facilities.  When a facility closes for the night, Packers employees enter the facility and clean the equipment.  A Packers employee was cleaning a piece of equipment at a Pilgrims Pride facility and suffered a partial amputation of a finger.

OSHA commenced an investigation and investigators met Packers representatives at the Pilgrims Pride facility.  Those representatives agreed that investigators could view the machine that caused the injury.  While walking to the machine, an investigator noticed a series of drains in the floor that lacked adequate covers.  A Packers manager told the investigator “that the drains had been in that condition for at least a year.”  OSHA added an additional citation against Packers for failure to maintain safe walking-working surfaces.

After losing its case before an Administrative Law Judge, Packers appealed to the Eleventh Circuit.  Among other things, it argued that it could not be liable for failure to repair the drains because the drains were owned by Pilgrims Pride.  The Eleventh Circuit rejected that argument, finding that “[t]he fact that Packers does not itself own the drains does not eliminate its responsibility to provide its employees with a safe working place.”

There are two primary lessons for Alabama employers to learn from the Packers decision.  First, take OSHA investigations extremely seriously and vigorously prepare for them.  OSHA investigators are not entitled to engage in a random tour of a workplace.  But, if an employer gives access to any part of a facility, investigators can issue citations for any violations that are in “plain view.”  Additionally, anything that an employees says to an OSHA investigator can be used against the employer.  Hindsight is 20/20.  But, in this case, Packers would have been well-advised to ensure (if possible) that all parts of the facility that an investigator might enter would be in good condition.  Moreover, employees accompanying the inspector should have been instructed to limit all communications.

The second lesson to be learned focuses on the need for communication between contractors and their clients.  Potentially, Packers may have been reluctant to point out safety violations to its client, Pilgrims Pride.  Nevertheless, the Eleventh Circuit’s decision makes clear that a contractor can be liable for unsafe work conditions — even if the contractor does not own the facility where the conditions occur.  Again, in hindsight, Packers should have communicated with Pilgrims Pride about rectifying the defective drains.

OFCCP is Updating Its Rules on Compliance Evaluations

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OFCCP is proposing to clarify its standards for compliance evaluations.

The United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is updating its rules for evaluating compliance by federal government contractors with equal employment opportunity laws.  On December 27, 2019, OFCCP issued a Notice of Proposed Rule Making (“NPRM”), which can be found here:  OFCCP NPRM.  According to a Press Release, the purpose of the NPRM is to “provide federal contractors with greater certainty and transparency about the procedures that OFCCP follows during compliance evaluations to resolve employment discrimination and other material violations.”

This is good news for federal contractors because the new rules will make some aspects of an OFCCP compliance evaluation mandatory.  Typically, evaluation procedures are guided by OFCCP’s Federal Contract Compliance Manual (“FCCM”).  Yet, the agency makes clear that the FCCM “does not establish substantive agency policy.”  In other words, OFCCP can depart from the FCCM without violating the law.  The FCCM can be found here.

The proposed rule making clarifies the circumstances in which OFCCP will issue  a Predetermination Notice (PDN) of discrimination to contractors.  If OFCCP finds an employment or compensation disparity during a compliance evaluation, it will determine:  (1) if that disparity is “both practically and statistically significant”; and, (2) where relevant, whether nonstatistical evidence demonstrates an intent to discriminate.  If OFCCP cannot corroborate statistical evidence with nonstatistical evidence, it will issue a PDN only where the statistical evidence is significant at a confidence level of 99% or higher, which equates to three or more standard deviations. Currently, OFCCP pursues compensation audits based solely on statistically-significant disparities below this threshold.

So, the NPRM is good for employers because it limits the circumstances in which OFCCP will rely solely upon statistical evidence to make a predetermination finding of potential discrimination.  But, the NPRM also clarifies the types of nonstatistical evidence OFCCP will rely upon to bolster statistics that, on their own, would not warrant a PDN.

Nonstatistical evidence may include testimony about biased statements, remarks, attitudes, or acts based upon membership in a protected class; differential treatment through review of comparators, cohorts, or summary data reflecting differential selections, compensation and/or qualifications; testimony about individuals denied or given misleading or contradictory information about employment or compensation practices; testimony about the extent of discretion or subjectivity involved in making employment decisions; or other anecdotal or supporting evidence.

This portion of the NPRM is not as favorable for contractors. It provides no standards on how OFCCP will weigh any particular type of nonstatistical evidence.  Moreover, by including “discretion or subjectivity” in its definition of nonstatistical evidence, OFCCP is implicating the vast majority of employment decisions.  Almost every hiring or promotion decision relies, in some part, on discretion or subjectivity by the decision maker.

If OFCCP issues a PDN to a contractor, the contractor must respond within 15 calendar days unless OFCCP grants an extension “for good cause.”  That is a short window to respond.  If the contractor does not respond or provide a “sufficient response,” OFCCP may issue a Notice of Violation (NOV).  If OFCCP issues a NOV, it may offer the contractor the opportunity to enter into a conciliation agreement. That agreement “shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies noted, including, where appropriate (but not necessarily limited to), remedies such as back pay and retroactive seniority.”

Finally, OFCCP’s proposed rule includes an “expedited conciliation option.” Under that option, a contractor can enter into a conciliation agreement before OFCCP issues a PDN or NOV.  Compliance evaluations and responses to PDNs can be extremely costly in terms of time and money.   The expedited conciliation option will provide contractors a procedure to remedy compliance issues without as much time or expense.

OFCCP is accepting public comments on the NPRM through January 29, 2020.  Instructions for submitting a comment can be found at this link:  OFCCP Comments

 

Medical Marijuana in Alabama: What Employers Need to Know

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The Alabama Medical Cannabis Study Commission has drafted proposed legislation that would permit certain types of medical cannabis in Alabama.

The Alabama Medical Cannabis Study Commission is proposing legislation that could impact Alabama employers.  Here is a link to an article from AL.com discussing creation of the Commission and its work on medical marijuana: Commission Votes to Approve Medical Marijuana

Most notably, the Commission is opening the door to medical cannabis use, but its proposed legislation (which can be found here) takes great pains to educate the public that it does not condone “traditional” marijuana use.  For example, the synopsis of the proposed act (which is proposed for codification at Ala. Code §§ 20-2A-1 et seq.) says:  “this bill would prohibit the ingestion of any raw plant material, and would prohibit any smokeable or vaping product.”  To that end, the term “Medical Cannabis” in the legislation does not include:

  1.  Raw plant material.
  2. Any product administered by smoking, combustion, or vaping.
  3. A food product that has medical cannabis baked, mixed, or otherwise infused into the product such as cookies or candies.

Moreover, only a limited set of conditions will qualify for treatment by medical cannabis/marijuana, including: cancer; Crohn’s Disease; epilepsy; fibromyalgia; and, HIV/AIDs-related nausea or weight loss.

Section 20-2A-6 of the proposed legislation is designed to give businesses some comfort level with medical cannabis by stating that the proposed act does NOT :

 (1) Require an insurer, organization for managed care, health benefit plan, or any person who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the use of medical cannabis.
(2) Require any employer to permit or accommodate an employee’s possession or use of a medical cannabis product, to allow the use of medical cannabis in the workplace, or to modify the job or working conditions of an employee who engages in the use of medical cannabis that are based upon the reasonable business purposes of the employer.
(3) Prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s possession or use of medical cannabis.
(4) Prohibit an employer from establishing and enforcing a drug testing policy or from implementing a drug-free workforce program established in accordance with Article 13, commencing with Section 25-5-330, of Chapter 5 of Title 25.
(5) Interfere with any federal restrictions on employment, including, but not limited to, regulations adopted by the United States Department of Transportation in Title 49, Code of Federal Regulations.
(6) Permit an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to use of medical cannabis.
(7) Require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the use of medical cannabis.

Section 6 above is good for Alabama employers, because its says that they cannot be sued for taking an adverse job action (like termination) against an employee because of their use of legal, medical marijuana.  Nevertheless, Section 2 raises some questions for me.  The first part of that section says that employers are not required to accommodate an employee’s use of medical cannabis.  In other words, employers don’t have to allow employees to use medical marijuana on-the-job.  But, the very final phrase of that section tacks-on the words: “that are based upon the reasonable business purposes of the employer.” I’m not sure what the purpose of that phrase was intended to be.  It’s possible, however, that somebody could argue that employer are required to allow medical cannabis on the job, unless they can demonstrate a “reasonable business purpose” for prohibiting its use.  Hopefully, this phrase will be cleaned-up in the legislative process.

Finally, the legislation would also alter Alabama’s Workers Compensation Act:

An employee who is injured or killed while using medical cannabis is ineligible to receive any compensation under Chapter 5 of Title 25, Code of Alabama 1975, if the injury or death was caused by an action or inaction of the employee, even if the employee was in full compliance with Chapter 2A of Title 20, Code of Alabama 1975, at the time of injury or death.

Potentially, that section makes it more difficult for users of legal, medical cannabis to recover workers’ compensation benefits than users of illegal drugs.  Alabama Code Section 25-5-51 currently provides: “no compensation shall be allowed for an injury or death caused by … an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs.”  Under that law, an employer attempting to deny workers’ compensation benefits must show that an employee was intoxicated and that the intoxication caused the accident in question.  Under the Medical Cannabis Commission’s legislation, employers would not be required to prove intoxication.  Instead, if an employee is prescribed medical cannabis and suffers an injury caused by the employee’s “action or inaction,” benefits could be denied.

The Alabama Legislature returns to session on February 4, 2020.  This proposed legislation will unquestionably be one of the hot topics of that session.

Overtime Salary Exemption Set at $35,568

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FLSA DOL overtime exempt exemption Alabama Employment Law
The DOL’s final overtime rule certainly deserves your attention.

Yesterday, the United States Department of Labor Wage and Hour Division issued its final rule with updates to the Fair Labor Standards Act’s overtime requirements.  The most-awaited update was the dollar amount for an employee to be considered exempt from overtime.  DOL set the exemption at $684 per week — which is equivalent to $35,568 per year.  Here is a link to DOL’s summary of the new rule:  DOL Overtime Rule.

Regular readers may recall that DOL, under the Obama administration, proposed raising the exemption from $23,660 to $47,476 in 2016.  Here is a link to a summary of that proposed rule: 2016 Overtime Post.  Implementation of that rule was halted in court and the DOL under the Trump administration later rescinded it.

The new rule is effective January 1, 2020.  Hopefully, Alabama employers have already reviewed their exempt employees to ensure that they comply with the imminent changes to the FLSA.  If you have not done so, you need to immediately review all of your exempt employees to ensure that they comply with the new rule.