Employment Update – Post-Accident Drug Testing

Mansour Gavin LPA congratulates John Monroe, a shareholder and member of the firms’ executive committee, on his recent appointment as President of Euclid City Council.  Mayor Kirsten Holzheimer Gail appointed Monroe in February when Euclid City Council was deadlocked over appointing her replacement.  John is a lifelong resident of Euclid and previously served on Euclid Planning & Zoning Commission as both the Chairman and Vice Chairman.

The Ohio Supreme Court announced that subcontractors enrolled in a self-insured construction project will now find immunity from tort claims made by employees of a different enrolled-subcontractor who are injured or killed while working on the self-insured project and whose injury, illness, or death is compensable under Ohio’s workers’ compensation law.

In Stolz v. J & B Steel Erectors, Inc., The Supreme Court was asked by the US District Court for the Southern District of Ohio, Western Division for clarification on the question of whether “Ohio Rev. Code §§ 4123.35 and 4123.74 provide immunity to subcontractors enrolled in a Workers’ Compensation self-insurance plan from tort claims made by employees of [other] enrolled subcontractors injured while working on the self-insured project.”   In the case before the Federal District Court, plaintiff, an employee for one subcontractor, sued another subcontractor for injuries allegedly caused by the second subcontractor’s negligence. The general contractor had obtained authority to be a self-ensuring employer on the project under R.C. 4123.35(O) and therefore was required to provide workers’ compensation coverage for both its own employees and those of enrolled subcontractors working on the casino construction project. The plaintiff’s employer, a subcontractor, and other subcontractors were enrolled subcontractors.

The Supreme Court answered the question of whether subcontractors enrolled in a Workers’ Compensation self-insurance plan are immune from tort claims made by employees of other enrolled subcontractors injured while working on the self-insured project in the affirmative and held that the subcontractor which allegedly caused the injuries was immune from liability for the claims because it was an enrolled subcontractor. The Court reasoned the statutes created a “legal fiction” wherein a “self-insuring employer is the employer of all covered employees, including employees of enrolled subcontractors, for purposes of workers’ compensation.” This legal fiction, according to the Court, therefore “made clear that for purposes of workers’ compensation, enrolled subcontractors do not have employees working on the construction project.” Thus, the general contractor, not the enrolled subcontractor-employer, is liable for workplace injuries of the enrolled subcontractor’s employees; the enrolled subcontractor is immune. Additionally, referencing tort law, the Court concluded that “a worker who may be compensated with workers’ compensation benefits is prevented from suing a co-employee (any other employee on the job site who is enrolled in the self-insuring employer’s plan), and thus the worker cannot seek to hold the co-employee’s actual employer vicariously liable in order to recover damages in tort.” For these reasons, the Court concluded, enrolled subcontractors were immune from claims of employees of other enrolled subcontractors who were injured or killed while working on the project so long as the event is compensable under Ohio’s workers’ compensation laws.

For more information on this and other matters, please contact Mansour Gavin’s Civil Litigation Group.

The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.

Mansour Gavin both participated in and served as a sponsor of the recent 2016 HeartBeat 5k, presented by the American Heart Association Young Professionals Board.  Held on a recent Saturday at the Cleveland Metroparks Zoo, Team MG reported gorgeous weather and a fun race.  Looking forward to 2017!

Last month, the DOL published proposed rules establishing paid sick leave for federal contractors in accordance with Executive Order 13706 signed by President Obama. The deadline for comments on the proposed rules has been extended to April 12, 2016. A renewal of the Healthy Families Act objectives, the goal is to provide employees working on federal contracts with at least 7 days of paid leave for illness or family care.

Scope. The proposed rules would apply to employees who work on or in connection with new federal contracts awarded on or after Jan. 1, 2017 covered by the Service Contract Act or the Davis-Bacon Act, concessions contracts and service contracts in connection with federal property or lands. In short, contract coverage would be the same as Executive Order 13658, Establishing a Minimum Wage for Contractors, provided the employee spends at least 20% of their working hours in a particular workweek performing work in connection with a covered contract.

Absences Covered.  There are a broad set of limitations in which paid sick leave may be used by an employee resulting in absence. Further, the use of paid sick leave cannot be contingent on the employee seeking paid sick leave to find a replacement. Absences that will result in paid sick leave will include:

*  Physical or mental illness, injury, or medical condition;

*  Obtaining diagnosis, care, or preventative care from a health care provider;

*  Caring for a child, parent, spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, who has any of the conditions or needs for diagnosis, care, or preventative care described above, or is otherwise in need of care.

The regulations also expand paid sick leave for an illness, injury or condition of the employee, or for the employee to obtain care for an illness, injury or condition, where the condition or care results from domestic violence, sexual assault, or stalking; for those seeking assistance from a victim services organization or to prepare or commence legal action as a consequence of domestic violence, sexual assault, or stalking; or to assist an individual related to the employee who is a family member who undertakes any of these actions as a result of domestic violence, sexual assault or stalking.

Requirements for requesting leave. Under the proposed regulations, paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least seven (7) calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.

Employer Responsibilities. The proposed rule provides two options for accruing paid sick leave, an accrual method and a “lump-sum” method. Under the accrual method, the employee will accrue not less than one hour of paid sick leave for every 30 hours worked on all covered contracts plus nonworking time on which the employee is paid. For full-time exempt employees, accruals can be calculated on actual hours worked (if tracked) or on an assumed 40 hours worked each workweek. Under the “lump sum” method, an employee must be provided with at least 56 hours of paid sick leave at the beginning of each accrual year. Paid sick leave will carry over from one accrual year to the next and carried over sick leave will not count toward any limit the contractor sets on annual accrual. However, an employer can place a limit on the amount of paid sick time an employee can accrue, provided that the cap is not less than 56 hours of paid sick leave per accrual year. The proposed rule allows the employer to select the 12-month period to use as the accrual year.

Further, the proposed rule requires federal contractor employers to inform their employees of their accrued sick leave balances no less than monthly.

Enforcement. No private right of action is created under the proposed regulations. Complaints for noncompliance must go through the DOL’s administrative process. Penalties can include backpay and reinstatement of last wages and benefits, liquidated damages in an amount equal to all other monetary relief ordered, and debarment.

While many employers already provide paid sick leave benefits, those who are federal contractors are encouraged to review their policies in light of the proposed regulations and either amend their existing policy or be prepared to adopt a new paid sick leave policy. For further information, please contact Mansour Gavin’s Labor and Employment Practice Group.

LEGAL DISCLAIMER

The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.

Mansour Gavin would like to congratulate Swagelok Company employment and compliance counsel, Adrienne Stemen, for being a selected honoree at yesterday evening’s Women Honoring Women reception! The event was put on by the Women in Law section of the Cleveland Metropolitan Bar Association, and Adrienne was recognized in the In-House category for both her professional and community activities.  We’ve had the pleasure of working with Adrienne for the last couple of years as outside counsel for Swagelok, and can say first-hand that the award was well-deserved. Other award recipients included Ann M. Porath, The Legal Aid Society of Cleveland, in the Public Sector category; Kerin Lyn Kaminski, Giffen & Kaminski, LLC, in the Law Firm category; Kristen Cavin, Forest City Enterprises, Inc., in the Rising Star category; and Maria L. Shinn, Shinn Lanter, LLP, in the Small Firm/Solo Practitioner category. We extend our congratulations, as well, to all of the talented female attorneys who were honored.

We took a short break from work and enjoyed some puppy snuggle time on Friday, February 12th!  The fun came courtesy of a Valentine’s Day promotion that Uber and the Cleveland Animal Protective League put on from 11 a.m. to 3 p.m., which was geared toward raising awareness for pet adoption and shelter animals. Downtown Cleveland offices could request a 15-minute visit from the puppies.  We wanted them longer!

In support of Go Red for Women, Mansour Gavin participated in “National Wear Red Day” on Friday, February 5, 2016.

By: Jeffrey M. Embleton

 Following the recent lead of the National Labor Relations Board (“NLRB”), on January 20^th, 2016 the U.S. Department of Labor (“DOL”) issued a new guidance document which signals a more aggressive approach to holding joint employers responsible for wage and hour violations, including unpaid overtime pay. Under the new guidance document, DOL’s Wage & Hour Division will attempt to hold those employers who “share” employees or use temporary or leasing agencies to staff positions liable for wage and hour violations committed by another employer. This guidance document follows on the heels of the NLRB’s decision in Browning-Ferris Industries of California, 362 NLRB No.186 (2015), which expanded the definition of joint employment for purposes of union recognition and possible violations under the National Labor Relations Act. We expect that other federal agencies, such as the Occupational Health and Safety Administration, will shortly follow the DOL’s lead.