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Top Employment and Employee Benefit Issues to Look for in 2017

January 27, 2017


Employers have a lot to think about this year with anticipated changes in employment legislation, which come with an overload of concerns on the minds of employers. Three of Schwabe’s Manufacturing, Distribution and Retail industry group attorneys hosted a seminar this morning to review and dissect these crucial changes.

Jean Back, Leora Coleman-Fire and Wally Miller addressed what employers should really be keeping in mind when it comes to topics such as Oregon Occupational Safety & Health Administration (OSHA) rules, the Affordable Care Act, and employee benefits. Here are a few of the highlights:

Updates for OSHA rules

OSHA has issued a Final Rule that took effect January 1, 2017, that:

    1. Requires employers to electronically submit injury and illness data to record onsite OSHA injury and illness forms;
    2. Clarifies that an employer’s procedure for employee reporting of work-related claims must be reasonable and must not deter employees from reporting;
    3. Requires that employers inform employees of their right to report work-related claims free from retaliation; and
    4. Prohibits retaliation for reporting workers’ compensation claims and allows enforcement of the retaliation provision through the citation process.

OSHA is also questioning the blanket post-accident drug testing that has been in effect. OSHA indicates that, unless required by state or federal law, for example, the Federal Motor Carrier Safety Act, blanket post-accident drug tests may inappropriately deter an employee’s reporting of an accident. “Be careful in policy manuals to make sure there isn’t a blanket drug and alcohol policy or statement,” says attorney Jean Back.

Employers should review their drug testing policies with counsel. Are you legally required to drug test after an accident by state or federal law?  If not, then a blanket post-accident drug testing policy may not be reasonable.

In addition, OSHA is also questioning statements in employee handbooks that require an employee to immediately report a workers’ compensation injury. Ms. Back advised that, as a result, you will need to revise your employment manuals to further explain the workers compensation process, and the difference between accidental injury and occupational disease claims.

New overtime pay rule for manufacturers

Employees working in manufacturing establishments are now guaranteed to receive both daily and weekly overtime. The rule applies to employees who work in a mill, factory or manufacturing establishment.

So, what qualifies as a “manufacturing establishment”?

Any place where machinery is used for “manufacturing purposes,” which includes:

  1. the process of making goods or any material produced by machinery;
  2. anything made from raw materials by machinery; or
  3. the production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, by the use of machinery.

This means that employees who perform their job duties outside of a mill, factory, or manufacturing establishment do not earn daily overtime. For example, administrative staff who work in a manufacturing facility may not qualify for daily overtime.  If these staff members work in a separate space, the daily overtime pay would not apply to them.

Affordable Care Act

With Republicans now making up the majority of the senate, the Affordable Care Act will likely see mass changes over the next four years. Republicans plan on repealing and replacing most of the ACA. Here is a look at what’s on the chopping block:

Elimination of all ACA taxes

  • Individual mandate penalties
  • Employer “play-or-pay” penalties
  • Premium tax credits
  • Cadillac tax
  • 9% Medicare surtax
  • 10% tax on indoor tanning
  • Remove annual health FSA limit (currently $2,600)
  • Remove annual OTC drugs reimbursements prohibition

“One of the key questions on the minds of many people is, ‘Where will the money come from if these taxes are eliminated?’” says attorney Wally Miller. Proposals to replace current ACA provisions don’t actually say how money will come in if the current taxes are repealed.


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