Tag Archives: portable benefits

No, you don’t need to burn your PTO to get workers’ compensation benefits.

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Employees do not need to exhaust paid time off (PTO) to receive workers’ compensation benefits in Nebraska. Employers in Nebraska must carry workers’ compensation insurance. But in Nebraska, employers aren’t required to pay PTO. Workers compensation pays out benefits whether you have paid leave or whether you have health insurance.

If you injure yourself at work and someone in management or HR tells you that you need to exhaust your paid leave before you collect workers’ compensation benefits, one of three things might be happening.

1. Someone at your company is misinformed about workers’ compensation.

2. Your employer is misleading you about how workers’ compensation works.

3. Maybe you misunderstood what you were told.

So why do some people think you need to exhaust paid leave before you receive workers’ compensation?

Short-term disability and exhaustion of leave

Many short-term disability policies require that employees exhaust paid leave before claiming short-term disability. My wife was required to burn her paid time off in order claim short-term disability during her maternity leave. White collar employers tend to have more short-term disability claims than workers compensation claims. (They tend to shift work injuries on to short and long-term disability, but that’s another story.) So a white collar HR department that lacks knowledge of workers compensation may, wrongly, assume that injured workers need to exhaust paid leave before receiving workers’ compensation.

The stigma of workers’ compensation

Employers who believe that employees need to burn paid time off before workers’ compensation benefits, may also believe this is necessary because they believe it should be necessary. Burning your paid time off before receiving workers’ compensation would be the same as paying a deductible before health insurance pays. Employers who think PTO should serve as a workers’ compensation deductible may believe that workers’ compensation and workers’ compensation claimants are illegitimate. Forcing employees to burn PTO before receiving workers’ compensation is one way to “hold employees accountable.”

Paying a quasi-deductible to receive workers’ compensation benefits is the cornerstone of a portable benefits scheme dreamed up by Obamacare architect Jonathan Gruber. (Portable benefits are touted as a replacement for workers’ compensation —- particularly for gig economy workers. Bad portable plans shift the cost of work injuries onto injured workers.)

Misinformed or mislead: A distinction without a difference

I know some high-injury employers actively misinform employees about workers’ compensation. These employers may tell injured workers they need to use paid time off before they can collect workers’ compensation to discourage injured employees from taking time away from work. Employees may work through pain to avoid missing work and losing out on paid family leave and or paid vacation time.

Employee misunderstanding

Nebraska law requires a one-week delay period before an injured worker who is off work can collect temporary disability. If disability lasts longer than six weeks, the employer must pay that first week. . Some employees may take this statement to mean that they need to exhaust their paid leave or PTO to receive workers’ compensation. Many employees don’t want to take the chance of missing out on a week of pay Bluntly many employees may need to draw paid leave or PTO while they are waiting for workers’ compensation benefits to start.

Can you collect workers’ compensation for times you took PTO in Nebraska? Yes you can.

The Nebraska Court of Appeals ruled in Godsey v. Casey’s General Stores that an employee can collect temporary total disability for periods when they took PTO. The court reasoned that since paid leave was a benefit ready earned by the injured worker that an injured worker could collect workers compensation and PTO.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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A PROblem with the PRO Act

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Image courtesy of the UAW

The House of Representatives passed the Protecting the Right to Organize or PRO Act last month. If the bill is enacted, it would make it much easier for workers to form unions.

The bill also used the worker-friendly ABC test to define employees under the National Labor Relations Act. (NLRA) The ABC test is the cornerstone of California’s Assembly Bill 5 which extends employment protections, including workers’ compensation, to gig economy workers.

I support the PRO Act. Our firm works with many unions on workers’ compensation claims. Union workplaces tend to be safer workplaces and unions give employees job security above and beyond what non-union employees have under the employment at-will doctrine.

But I don’t think the PRO Act went far enough. I believe the PRO Act should have applied the ABC test for the purposes of federal taxes like unemployment, Social Security and Medicare. I believe that for a few reasons.

One, more tax revenue to those programs would help maintain their solvency. Two, while states control who is an employee for the purposes of workers’ compensation, the fact that an employer pays taxes on an employee makes it more likely an employee will be defined as an employee. Federal tax laws can be a thumb on the scale for workers under state laws like workers’ compensation.

I think the PRO Act’s silence on Social Security and Medicare opens the door for mischief if it is enacted as drafted. Gig economy workers organized into a union without the benefit of basic social insurance programs may be forced to accept cut-rate “portable benefit” packages in lieu of standard mandated benefits like workers’ compensation. Poorly designed portable benefit plans can shift the cost of work injuries onto workers – particularly those are not covered under state workers’ compensation laws. The tech industry has collaborated with former SEIU President Andy Stern to support these types of weak portable benefit programs.

The PRO Act is DOA in the Senate. I think it is unlikely the President would sign the bill on the off-chance it did pass through the Senate. But there is an election coming up in November. It is well within the realm of reason that come next year there could be a Democratic president and a Democratic congress. Would Democrats enact something like the PRO Act if they had the opportunity next year or in 2022?  It probably depends on who the Democratic president would be.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Thanks for reading Nebraska Workers’ Compensation Watch

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My article in Trial Magazine started out as a post on this blog

If you are a member of The American Association of Justice (AAJ) you can read my article “Portable Benefits and The Gig Economy” in this month’s edition of Trial Magazine. If you are a plaintiff’s lawyer and not an AAJ member, you can click here to join AAJ.

If you are a non-plaintiff’s lawyer reader of this blog you can click here or here for what amount to rough drafts of the Trial article. (Sorry the article is copyrighted to AAJ and only available to members)

Briefly, the main takeaway from my article is that while the fight over worker misclassification as it relates to the gig economy is an old fight, the move to develop a separate employee benefits scheme is a new issue. Of course, some more senior practitioners, namely Tom Domer, have pointed out privately that remedies like today’s “portable” benefits” proposals were proposed in the late 19t/early 20th century when workers’ compensation laws were being proposed, debated and drafted.

I assume that I will be writing more about portable benefits in the future as events and time warrant. But for now, my next big blog project is going to be exploring how employment risk fits in within the so-called “grand bargain” of workers’ compensation. My thesis is that workers’ compensation developed in response to new risks from the newly industrializing economy of the late 19th century. Farm and domestic workers were excluded from those laws as judges in the late 19th century thought risks of those occupations where inherent. Putting aside legitimate concerns about how this excluded women and African-Americans from workers’ compensation, I think this exclusion is why employment risk is such a hotly contested issue as industrial jobs decline and service jobs increase.

This exclusion of workers from workers’ compensation, which is inherent in workers’ compensation, is one reason why I don’t like the term “grand bargain” in describing the origins of workers’ compensation. My dislike of the term grand bargain will probably be fleshed out over the next few months as well.

So thanks for continuing to read Nebraska Workers’ Compensation Watch. Thanks to all the attorneys, whether on the worker or management side, who take the time to write original content based on their experience in practice. I gain insight from what you write and I will continue to try to provide insight to lawyers and non-lawyers alike about workers’ compensation and employment law.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Possible Medicaid expansion could impact workers’ compensation, labor markets

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State Sen. Adam Morfeld of Lincoln has helped lead the charge for Medicaid expansion in Nebraska.

Nebraska voters will likely vote on Medicaid expansion in November after Insure the Good Life turned in 135,000 signatures earlier this month. Insure the Good Life estimates 98,000 Nebraskans who aren’t eligible for Medicaid but can’t afford coverage on the ACA exchanges will would get insured if the measure passes in Novmeber.

If Medicaid expands in Nebraska, it could impact the  employee-employer relationship and workers compensation in the state.

Workers Compensation

Expanded health insurance means that more people will have access to medical care and have a relationship with a general practitioner. Oftentimes injures employees don’t have family doctors, so they let their employers pick their doctor by default. Letting an employer pick a doctor in a workers’ compensation claim can be harmful to an injured employee’s workers compensation case.

Access to primary care can also help an injured worker manage chronic conditions such high blood pressure and diabetes that can hinder recovery from a work injury.

An employee who has their workers compensation claim denied and isn’t working is usually unable to afford COBRA coverage — assuming their employer offers health insurance in the foirst place. An injured worker in that situation who is covered by Medicaid can continue to get the medical care they need to recover and develop their workers compensation case.

Employee-Employer relations

Employees often put up with abusive employers solely for the sake of health insurance. The option of enrolling in Medicaid would give more employees to take their job and shove it. This concern is part of the allure of portable benefits for employee that I have written about before. Less reliance on employers for health insurance could improve labor mobility and push up wages.

My opinions about the impact of Medicaid expansion in Nebraska come with some caveats. I have long believed the expansion of health insurance leads to more doctor choice for injured workers. But some studies of the ACA show it has lead to consolidation in the medical industry. This consolidation could gut any formal right employees have to chose their own doctors under workers compensation laws because there is less overall choice of doctors. This issue may have to be addressed by more vigorous anti-trust law enforcement

Also, just because a state expands Medicaid by referendum doesn’t mean the elected branches of government will implement the expansion. That is what is happening in Maine. The whole structure of the Affordable Care Act could be altered through another court challenge to the ACA. Finally the Nebraska Medicaid petition has been challenged by opponents of the expansion

But even with those caveats, I believe Medicaid expansion would be a good thing for injured workers and employees in Nebraska.

 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Medicaid, Nebraska, portable benefits, Workers Compensation and tagged , , , , .