Wage Calculation of H-2A Visa Workers in Washington

The United States H-2A visa program allows employers to bring foreign nationals into the country to fill temporary agricultural positions. Due to labor shortages, it has become common for employers in Washington to hire temporary agricultural workers through the H-2A visa program. Wage calculation in workers compensation cases involving H-2A workers has become a frequent issue. The rate of time loss benefits a worker is due depends in large part on their gross monthly wages at the time of injury (or manifestation of occupational diseases. RCW 51.08.178 dictates how wages are calculated based on the workers employment pattern. Workers with a regular and continuous employment pattern fall under RCW 51.08.178(1) (“Subsection 1”). Under Subsection 1, wage calculations generally involve averaging… Continue reading

Oregon Workers’ Compensation Mental Health Presumption of Compensability

Presumption—it’s a scary word in the world of Oregon workers’ compensation. Last year Oregon passed Senate Bill 507—now codified at ORS 656.802(7)—creating a presumption of compensability of certain mental health claims filed by first responders working for public entities. A careful look at the presumption created by ORS 656.802(7) reveals it actually applies in limited circumstances and may not be so scary after all. Covered Employees The presumption applies to limited group of employees employed by public employers. Only those employees that are full-time paid firefighters, emergency medical services providers, police officers, corrections officers or you corrections officers, parole or probation officer, or emergency dispatcher or 9-1-1 emergency operated are covered by the presumption. Further, the employee in question must… Continue reading

Getting Back to Work in a COVID World

As we all begin to return to work following the loosening of restrictions, it is important to take stock and prepare for the future. By now it should be clear to all of us that COVID will likely be with us for a while. Not only must employers prepare to conduct business in this new environment, it is also important to forecast potential legal challenges. To do so, businesses must take stock of practices and policies that have served us well and those that must be discarded or modified. Below I discuss the three most important actions you can take to protect your business and employees in a COVID world. Evaluate your Policies in Light of the “New Normal” As… Continue reading

Trial Attorneys and Unions Pushing for COVID-19 Presumption Legislation

On June 23, 2020, Governor Brown directed the Management-Labor Advisory Committee (MLAC) to explore any gaps in our current workers’ compensation system related to COVID-19, including at looking to whether a presumption of compensability is needed to ensure workers are protected under the current system. The governor instructed the committee to provide a response by mid-July to prepare for an upcoming legislative session. MLAC held six meetings to take testimony from workers, attorneys, employers, insurers, administrators, and state officials discussing a list of potential issues. The issues were categorized into worker’s compensation issues MLAC could address and health/safety issues that MLAC could make recommendations, but ultimately would need to be addressed by other agencies. Ultimately, MLAC could not reach a… Continue reading

Oregon employers: are you ready for the Workplace Fairness Act?

The Workplace Fairness Act goes into full effect on October 1, 2020. This Act adds to Oregon’s existing discrimination and harassment laws, extending statutes of limitations and requiring employers to have specific policies and practices in place to address workplace discrimination. While it arose out of the #MeToo movement, it is not limited to sexual harassment and broadly covers discrimination on the basis of race, age, disability, gender, religion, marital status, etcetera – all the protected classes within ORS 659A.030. Under the Workplace Fairness Act, all Oregon employers need to have a policy including specific provisions to give employees at hire and when a complaint is made. BOLI has now posted a sample policy on its website, available here. If… Continue reading

Oregon OSHA will Adopt Rules Addressing the COVID-19 Emergency

stephen verotskyRecently, Oregon OSHA announced it has begun work on temporary rules addressing the COVID-19 emergency. The target date for the rules is September 1st and is expected to remain in effect through February 2021. The rules will be completed in consultation with the Oregon Health Authority (OHA), Public Health and other technical advisors and affected stakeholders. Although Oregon OSHA has only begun its rule making process, it has been actively investigating COVID-19 related complaints. Since early March, Oregonians have filed approximately 5,500 workplace complaints related to the pandemic. For example, numerous complaints relate to employees not utilizing face coverings and not maintaining physical distancing. These complaints can translate into inspections and costly citations for employers. Oregon OSHA does not currently… Continue reading

The Oregon Court of Appeals doubles down on the two-prong Roseburg Forest test making it easier for a presumptively responsible employer to shift responsibility

In April 2020, the Court of Appeals issued a significant decision regarding responsibility cases. In NAES Corporation v. SCI 3.2, Inc., 303 Or. App. 684 (2020), the issue was whether the Board erroneously focused on “probability” and not “possibility” of contribution in determining that claimant’s prior work exposure was the sole cause of his hearing loss such that the presumptively responsible employer could successfully shift its responsibility backwards. Claimant worked as a boilermaker for various employers from 1966 through 2012 when he retired. At that time, he was working for NAES. Following his retirement, claimant worked seasonally for SCI fabricating parade floats from 2013 through 2016. This seasonal work involved sawing, welding, grinding, and hammering. In 2014, claimant was diagnosed… Continue reading

SBH Video Series: PPP Loans and Return to Work

SBH is excited to announce it will be producing a series of short videos addressing various issues employers are facing during the COVID-19 Crisis and beyond. Join Megan Vaniman as she discusses PPP loans and forgiveness. Slides used in the video are available here. The video is also available on SBH’s YouTube Channel.    

Washington State Announces 2020 COLA Increase; Affects Temporary Disability Payments Starting July 1st

Under RCW 51.32.075 temporary disability benefits are recalculated July 1st of each year to reflect changes in the states average wage. According to the Washington State Employment Security Department, the statewide average wage for 2019 was $69,700. This represents a 6.7% increase from 2018 average wage of $65,301; the largest increase since 1999. The Department of Labor and Industries has provided updated information on how to apply the COLA here. Please note the COLA does not apply to temporary disability payments until the second July after the date of injury, unless a worker’s temporary disability rate is set at the minimum or maximum temporary disability rate. Have questions about this year’s COLA increase? Feel free to contact me at 503-595-6110 or dwhite@sbhlegal.com.
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