Rice Law Office Blog

Part 1: Important Retirement and Disability Benefits for Injured and Ill Workers

NHRS benefits have been changed and amended over the years. Therefore, benefits and eligibility will vary (In some cases significantly) depending upon an employee’s hire date, service date, and date of vesting.

NHRS provides helpful information that guides employees through these changes so that they can better plan and estimate their available benefits. However, you need to know where to look.

Below are links to the summaries of available benefits for Group I employees (Employee and Teacher) and for Group II employees (Police and Fire) based upon service date, vesting date, and hire date. The best time to review this information is before you need it. These benefits are critical not just at the time of retirement, but in case of disability. Therefore it’s a good idea to review this information to determine which category you fit into based upon your hire, service, and vesting dates.

 
Group Information for Group I Employees:
Group I (Employee and Teacher) Member vested prior to January 1, 2012
NHRS (emp and teacher) member vested prior to 1-1-2012 pdf

The wage and hour Division of the federal DOL held a town meeting today to address the Families First Coronavirus Response Act (FFCRA), and we were able to attend remotely. While many questions remain, what is clear is that there are still more questions than answers at this point.

IMPORTANT NOTE and DISCLAIMER:
We are sharing what we learned today and what we have gathered from other coordinating sources, but we do so with the limitation and clear notice that this is not to be considered legal advice and our colleagues should not rely upon this summary in order to provide legal advice.

This is a summary of the new provisions of the Families First Coronavirus Response Act (FFCRA), which is itself, a work in progress, at least with respect to how it will be interpreted and implemented. We are limited by limited information and yet, as this is such an urgent and important issue, we are sharing what we know, or think we know so far.

For the most accurate information we recommend you refer to the bill itself (H.R. 6201) and that you keep checking for the regulations and model notice from the DOL and the Treasury site (as to the applicable guidance for tax and credit issues).

DOL TOWN HALL
The presentation today, 3/20/2020, focused on two provisions of the law: Emergency Medical Leave Exemptions Act and the Emergency Paid Sick Leave. The information provided was very general, the “connectivity” for the remote access was less than optimal, many of us had problems accessing the written materials, and in the end there were far more questions than answers.
MY TAKE:
What the presentation made clear is how little anyone knows about how this law might be implemented.

THE BASICS
• We are told the effective date is 15 days after enactment (3/18/2020),
• By my count that makes the effective date April 2nd.
• The legislation “sunsets” as of 12/31/2020.
• Regulations are pending, but not ready
• The DOL hopes to have a model notice for the required Employer posting requirement in 7 days
• The Legislation generally applies to employers with fewer than 500 employees
• Employers of health care providers and of first responders are excluded
• Employers with fewer than 50 employees may be eligible for an exemptions where compliance would jeopardize the business as a going concern
• There are limitations to right to reinstatement for employers with fewer than 25 employees
• The law provides an extension to the FMLA to eligible employees working for covered employers, that would provide up to 12 weeks of leave for emergency related circumstances including the employees own illness and the need to care for others- as defined by the law
• The legislation provides wage replacement benefits under certain circumstances and in varying amounts as detailed, protection against discrimination and against termination and discipline. There are also certain rights to reinstatement.
• employers pay the wage replacement benefits in the first instance and will be eligible for repayment from the government in ways to be articulated, but likely to include tax credits.


THE DETAILS
The government is working diligently to issue regulations, but not surprisingly, they are not yet available. Indeed, the vast majority of the time spent at this town meeting was focused on receiving questions from participants. The Department of Labor representatives did not, and in fairness, probably could not, answer any of the questions posed. This was simply an effort to offer preliminary guidance in the most general of terms. It was as much an opportunity to raise questions and concerns, which will presumably be passed on to those issuing regulations at the various agencies.

To our clients, friends and colleagues,
We are working hard to stay up to date on the fast changing laws and issues impacting workers in the setting of the Coronavirus so we can share what we learn with you. To that end, we have included another valuable link for information:

Go here https://www.dol.gov/coronavirus for the Federal Department of Labor resources page for Coronavirus Resources for Employees and Employers.

Go here for information on the Families First Coronavirus Response Act (FFCRA) https://www.natlawreview.com/article/senate-passes-families-first-coronavirus-response-act-what-employers-need-to-know

Stay well.
Rice Law Office, PLLC

Follow this link for important information regarding services and benefits related to COVID-19

https://blog.ssa.gov/a-covid-19-update-from-our-commissioner/

Go here https://www.dol.gov/coronavirus for the Federal Department of Labor resources page for Coronavirus Resources for Employees and Employers.

Follow this link for important information regarding H.R. 6201 – Families First Coronavirus Response Act

THE NH DOL HAS ISUSED THE FOLLOWING NOTICES REGARDING LOWER LEVEL HEARINGS AND REGARDING CAB HEARINGS:

Update from the NH Department of Labor: Effective immediately, all hearings will either be conducted telephonically or continued. There will be no in-person first-level hearings (workers’ compensation or wage claims) conducted at the Department. The above policy will be revisited after four (4) weeks.

Update from the NH Workers’ Compensation Appeals Board:
Please be advised that, effective March 23, 2020, all Workers’ Compensation Appeals Board (CAB) hearings and pre-hearings will either be conducted telephonically or continued. There will be no in-person CAB hearings or prehearings conducted at the Department for the next four weeks, following which this policy will be reviewed.

The implications of Covid 19, commonly referred to as Coronavirus, are unprecedented and far reaching. Undoubtedly, we are first and foremost concerned about the potential impact of this virus on the health of our community and more particularly upon those most vulnerable, but then there are the economic and practical implications of our wide spread social distancing policy. 

Fortunately we have health care experts to guide us through the medical considerations while individuals and families will decide how best to protect themselves and others when it comes to calculations of risk and exposure. 

From the law’s perspective, there is also guidance and protections available for those at risk and for those financially effected by the Covid 19/Coronavirus pandemic. 

Dear Friends, Colleagues, and Clients,

With a careful eye on the circumstances surrounding COVID-19 and the evolving recommendations regarding “social distancing,” we at Rice Law Office are taking steps to ensure continuing service and accessibility while limiting in-person contacts.

We have been hard at work with our technology team establishing greater opportunities for connectivity, web meetings, remote document sharing and ways to connect with our clients and those we work with regularly in a way that limits in-person interaction.  The plan is to do this while simultaneously limiting disruption as much as possible. That said, we do anticipate changes to the way we normally do things and we ask for your patience and suggestions if you have them!

You may be receiving an increase in your social security benefits as of 2019.

Each year social security announces the annual cost of living adjustment (COLA). Some years there is no increase, but usually there is an increase in the SSI benefit amount people receive . This is because the law requires that the federal benefit rates increase when the cost of living rises, as measured by the consumer price index for urban wage earners and clerical workers.

In general, this index rises when prices increase for the things the average consumer buys. This helps beneficiaries keep up with the changing cost of living. We all know prices have been rising and its harder and harder to keep up so the good news is, there will be a COLA for 2019.

Due to the rising index and cost of living, this year, in 2019, many Americans will see their social security and SSI benefits increase by 2.8%.  Every little bit counts.

COVERAGE FOR INJURIES INCURRED OUTSIDE NH

Even if an employee is injured while working outside the geographic boundaries of the state of New Hampshire, he or she still may be eligible to receive Worker's Compensation benefits under our laws. 

An injured employee is entitled to Worker's Compensation benefits even if the injury takes place outside of New Hampshire If the employee can show that he or she would've been entitled to Worker's Compensation benefits had the injury taken place in this state AND that the following is true:

1)The employer is engaged in business in this state;

2) The contract of employment was made in this state; and

3) The contract of employment was not expressly for services exclusively outside of the state of New Hampshire.

New Hampshire does not require employers give paid sick leave to their employees, and that can lead to some complicated situations as we enter flu season. The flu can pose an inconvenience for any employer by impacting employee availability and productivity, but it also poses a challenge from a legal perspective as employers sort through how to manage absences and flu shots.

Certainly many employers provide their employees with paid sick time voluntarily. This practice is good business for several reasons which go beyond philanthropy.  With the lowest employment rates in the country, New Hampshire employers have to remain competitive to attract and keep the best employees, and fair and even generous benefit packages are part of this effort. The other reason, of course, is that employers who might not want to offer paid sick leave as a cost savings measure may find they have made a penny wise, pound foolish decision.  The fact is, employers are more likely to lose money when they scrimp on sick leave by encouraging sick employees who can’t afford to lose a day’s pay to come into work, spreading their germs for all to share.  Many would argue the small cost of a well-managed paid sick leave policy more than pays for itself in greater employee satisfaction and less disruption to productivity.  

As an added measure to reducing the impact of flu season, some employers also offer flu shots to employees.  Still other employers go so far as to make vaccinations mandatory.  While mandatory vaccination policies are generally viewed as lawful, there must be exceptions available. Specifically, employees may seek to opt out of vaccinations on the basis of religious beliefs and the protections offered under Title VII of the Civil Rights Act.  Employees may also opt out if they have a qualifying medical issue that would be exacerbated by the flu shot.  If your employer requires flu shots and you’d rather not participate, ask if there is an ability to opt out.

For employees who need more than just a few days off from work, there may be other benefits or protections available to supplement sick leave. Extended illness or injury that is considered serious of disabling may qualify an employee for disability insurance payments and or job protection under the Family Medical Leave Act or the state or federal laws on discrimination. Employees who have been employed one year, have worked 1250 hours, and work for an employer at a location with more than 50 employees within 75-mile radius, are eligible for up to twelve (12) weeks of unpaid leave under the FMLA. The ADA and NH’s Disability Protection Statute RSA 354-A may offer right to accommodations or protection from unfair treatment related to your disability.  

Finally, employees who become ill or are injured in and during the course of work may be eligible for workers’ compensation, which offers not only payment for lost wages and medical bills, but compensation for permanent injuries and job protection in the form of alternative work and right to reinstatement.

Recent OSHA rule discourages blanket post-injury drug testing policies as an impermissible deterrence to proper reporting of workplace injury and potential retaliation.

OSHA 29 CFR 1904 - Final Rule to Improve Tracking of Workplace Injuries calls for employers to electronically submit injury and illness data to OSHA. The new rules also included anti-retaliation protections which prohibit employers from retaliating against employees for reporting workplace injury or illness. The goal of the new rule, which became effective December 1, 2016, is to promote “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.”

OSHA states that “blanket post-injury drug testing policies deter proper reporting.” Therefore, post-accident drug testing must be limited to tests based on an “objectively reasonable basis” that drug use by the reporting employee was a contributing factor to the reported injury or illness. In other words, there must be a reasonable possibility that drug use was a causal factor in the incident. Drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be “objectively reasonable” because the drug use could not have contributed to the injury.

Exceptions to the new rules on blanket post-injury drug testing include certain employees regulated by the Department of Transportation, and where blanket post-accident drug testing is allowed by state workers’ compensation law or other state or federal law.

On June 28, 2017, under President Trump’s new Secretary of Labor, R. Alexander Acosta, the Department of Labor published a Notice of Proposed Rulemaking (NPRM) which reflected that “OSHA intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule.” However, to this date the administration has not taken any action. Therefore, under current interpretations of the Final Rule (with the aforementioned exceptions), blanket post-accident drug testing policies should be considered potentially retaliatory and therefore violate the rule.

Follow this link for a great article of interest for all of our municipal and state employees in the New Hampshire Retirement System: 

NHRS realizes 13.5% investment return in FY 2017

 It's important to see a doctor right away after you've been involved in a car accident even if you think you didn't sustain any injuries. 

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