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Nevada: Extensive Legislative Updates

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The Nevada Legislature enacted a number of laws in 2019.  Below is a summary of legislative updates that impact employers.

AB 181 | Sick Day Notice.  Effective May 15, 2019, employers cannot require employees to be physically present at work in order to provide notification of an injury or illness requiring sick leave usage.  However, employers can continue to require employees to notify the employer when they are sick and cannot come to work.

AB 192 | Removal of Decriminalized Offenses.  Effective July 1, 2019, any person convicted of a decriminalized offense may request to have records of the offense sealed so they do not appear on background checks.

AB 226 | Microchip Implantation.  Effective October 1, 2019, employers or any other entity or individual cannot require a person to have a microchip implant or other permanent identification marker as a condition of employment.

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California: AB 5 Cements the Dynamex Independent Contractor Test

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January 1, 2020

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In 2018, in Dynamex Operations West, Inc. v. Superior Court (Lee), the California Supreme Court set forth an ABC test for determining when an individual is an independent contractor rather than an employee for wage and hour-related claims. Specifically, the Court stated that a workers is presumed to be an employee unless the business proves: (A) the worker is free from control and direction of the hirer in connection with the performance of the work, based in contract and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The previous Borello standard was left in place for determining independent contractor status for non-wage and hour claims.

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North Dakota: Recent Employment Updates

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August 1, 2019

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North Dakota enacted several new laws before the close of this year’s legislative session; key provisions are summarized below.

Volunteer Emergency Responder Leave. Covered leave now includes all volunteer members of the army or air national guard in any state, not just North Dakota.

Marijuana “Decriminalization”. North Dakota reduced penalties for first-time possession of up to a half ounce of marijuana to only a fine, not jail time. However, possession of larger amounts, repeat offenses, and sales or trafficking can still result in harsher sentences. The lessening of punishment for first-time offenders does not make marijuana legal; it merely treats the infraction more like a traffic ticket.

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Arbitration Agreements Must Exempt NLRA Claims According to the NLRB

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June 18, 2019

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In Prime Healthcare, the National Labor Relations Board (NLRB) stated that an arbitration agreement that did not expressly exclude claims filed with the NLRB was invalid. There, the arbitration agreement simply required that all claims between the employer and employee be subject to arbitration. There were a few exceptions identified for workers’ compensation and unemployment claims, but not for National Labor Relations Act (NLRA) claims processed through the NLRB.

The Board stated that although the arbitration agreement did not expressly state that NLRB claims are subject to the arbitration agreement, because it called for “all claims” to be arbitrated, with limited exceptions, it restricted employees’ access to the NLRB and its processes. The Board ordered the employer to rescind the unlawful agreement and provide notice to current and former employees.

Employers should ensure that arbitration agreements expressly exclude NLRB claims. A general disclaimer excluding anything that would interfere with employee rights may not be sufficient.

Action Items

  1. Have arbitration agreements reviewed with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

New Hampshire: Medical Marijuana May Be a Reimbursable Workers’ Compensation Expense

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March 7, 2019

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The New Hampshire Supreme Court recently stated that a workers’ compensation carrier could not deny an employee’s request for reimbursement of medical marijuana to treat a work-related injury.  In the Appeal of Andrew Panaggio, an employee suffered a lower back injury that resulted in permanent impairment and ongoing pain.  He was prescribed opioids to treat the pain, but due to negative side effects, he was later issued a cannabis registration card authorizing medical marijuana use.  However, the workers’ compensation carrier denied payment of the medical marijuana, alleging that it was not “reasonable/necessary or causally related” to the work injury.

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Wisconsin: Temporary Workers Can Now Sue Employers for Workplace Injuries

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January 26, 2018

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In In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company, the Wisconsin Court of Appeals recently stated that a temporary worker could opt out of making a workers’ compensation claim under the Wisconsin Workers’ Compensation Act (the “Act), and bring a tort claim against the employer instead.

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New York: Paid Family Leave Regulations Released

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January 1, 2018

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On July 19, 2017, the New York Workers’ Compensation Board adopted the final regulations for the state Paid Family Leave (“PFL”) issued by the Department of Financial Services on May 16, 2017.  The regulations stem from Governor Cuomo including the Paid Family Leave Benefits law in the 2016-2017 State Budget on March 31, 2016. The following are key points employers need to be aware of.

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California: Genetic Causes May be Considered in Apportioning Liability for Work Injuries

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April 26, 2017

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On April 26, 2017, the California Third District Court of Appeal stated that genetic causes, including inherited predispositions, may be considered in medical evaluations to apportion the employer’s share of liability for work-related injuries.  This builds further upon the current standard for workers’ compensation injuries in which employers must compensate workers only for the portion of a disability caused by a work-related injury.

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California: New Workers’ Comp Law Expands Coverage Requirements

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January 1, 2017

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AB 2883 revises the definition of “employee” in workers’ compensation insurance policies, adding officers, directors, and working members of partnerships and limited liability companies.  Currently, such individuals are generally not required to be covered under a business’s workers’ compensation policy.   Under AB 2883, such workers will be generally required to be covered; a narrow exclusion permits certain individuals to opt out by signing and filing a waiver with the insurance carrier.

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February Updates

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This HR Alert addresses the following topics:
  1. BIG Changes to California’s FEHA Regulations
  2. Pasadena Approves Minimum Wage Increase
  3. California Workers’ Compensation Claim Form Updated

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Downloads

Form 5020 Employer’s Initial Report of Injury

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Employers are required to report to workers’ compensation within five days of knowledge every occupational injury or illness which results in lost time beyond the date of the incident OR requires medical treatment beyond first aid. For more information on reporting, download the form or visit the CA DIR’s Division of Workers’ Compensation website linked below.

DWC 1 Workers’ Compensation Claim Form

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Provide this form to California employees in the event of a workplace injury or illness.  For more information on employee rights and reporting, download the form or visit the CA DIR’s Division of Workers’ Compensation website linked below.