Senate Bill 268, the Employment Law Uniformity Act

The first hearing for sponsor testimony on Senate Bill 268, the Employment Law Uniformity Act, will be held tomorrow, April 13th, at 2:30PM or immediately following the Senate session. At this hearing, Senator Seitz, the sponsor of the bill, will explain why this legislation is needed to harmonize Ohio’s employment discrimination laws with federal law.

Here is an overview of Senate Bill 268.

Also, read below for an interesting blog post from Jon Hyman-Myers, emphasizing the importance of Senate Bill 268.

D&M

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ENDORSING THE EMPLOYMENT LAW UNIFORMITY ACT

For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.

Yesterday, Senate Bill 268 was formally introduced in the Ohio Senate. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms, S.B. 268:

• Creates a universal 365-day statute of limitations for all employment discrimination claims.
• Eliminates individual statutory liability for managers and supervisors.
• Caps non-economic and punitive damages based on the size of the employer.
• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
• Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission or filing a discrimination lawsuit in court, with the filing of the former tolling the statute of limitations for the latter.
• Prioritizes mediation and conciliation for all charges filed with the OCRC, such that all but the most difficult of cases can be resolved efficiently and cost-effectively.
• Establishes an affirmative defense to claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.

This bill presents a tangible opportunity to fix a broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive business disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 268 restores balance and predictability for Ohio employers, while, at the same time, preserving the crucial right of employees to be free from discrimination in the workplace.

Focusing on the elimination of individual liability for discrimination claims, vocal opponents of S.B. 268 have already labeled this legislation as protecting sexual harassers. Nothing could be further from the truth. The legislation leaves intact all common-law remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, and invasion of privacy—along with the possibility criminal sanctions for the most egregious of misconduct. S.B. 268 merely brings Ohio in line with federal law and the law of almost every other state on this issue. It also harmonizes Ohio law on this issue, as the Ohio Supreme Court has already eliminated individual supervisor and manager liability for public officials.

Now comes the hard part—getting this bill passed. If you believe S.B. 268 presents the necessary reform of a broken system, call or email your state senator and urge him or her to support this bill. Getting S.B. 268 passed is a battle worth fighting to bring meaningful reform to a broken system.

BWC Seeks to Cut Opioid Use by Ohio’s Injured Workers - by Rita Price, Columbus Dispatch

This is a very interesting article from Yesterday's Columbus Dispatch. The Ohio Bureau of Workers' Compensation wants to be the first in the nation to put guidelines for prescribing opiods into the state administrative code. The hope is that such action will reduce opioid dependency by reducing and regulating the Bureau's role in prescribing such prescriptions. Follow the link above or read below. D&M.

The numbers were stunning, even to those who already knew that scores of injured workers were being prescribed potentially dangerous amounts of painkillers.

More than 9,300 workers — nearly 20 percent of claimants receiving medication paid for by the Ohio Bureau of Workers’ Compensation — had prescriptions sufficient to render them physically dependent on opioids.

At least 60 workers were at doses equivalent to 200 Vicodin tablets a day.

“We had to draw a line in the sand,” said John Hanna, the bureau’s pharmacy program director. “ Injured workers do not go back to work when they’re medicated into a stupor. They don’t go back when they’re dead.”

That and other alarming data, gathered as the nation sank deeper into an opioid medication crisis, prompted the bureau to create a pharmacy management program that includes a closed formulary for prescription drugs. Since it was implemented in 2011, total opioid doses for injured workers have declined by 41 percent, and the average daily opioid load per injured worker in 2015 was below the 2003 level, officials say.

The number of workers considered to be opioid dependent based on their prescriptions (the equivalent of at least 12 tablets of 5 milligrams of Vicodin per day for 60 days) has dropped from 9,343 in 2011 to 4,723, Hanna said.

“Part of that is attributable to the formulary; part of that is education,” he said.

Ohio and Washington are the only states that have a closed formulary, which essentially means that there is a list of permitted drugs and dosages for workers’ comp cases. Taxpayers also have saved millions of dollars, although Hanna said the motivation for Ohio’s tightened policies is clinical, not fiscal.

The Ohio bureau wants to go further, becoming the first in the nation to put guidelines for prescribing opioids and rules for workers’ comp cases into the state administrative code. In addition to requiring doctors to develop a treatment plan, monitor it and document whether the worker is improving, the proposed administrative rules also would include guidelines and assurances for weaning injured workers off opioids.

“I don’t know of any other place in the nation that has a rule that says, ‘We’ll pay for your treatment for 18 months,’” Hanna said. “We’ll pay for counseling.”

Pain-management specialist Dr. Kort Gronbach of Mount Carmel Health, who serves on the bureau’s pharmacy and therapeutics committee, praised the efforts. “Everyone on the committee is trying to do the best thing for injured workers,” he said.

The challenge is to make sure the pendulum doesn’t swing too far for chronic-pain patients with debilitating conditions, some of whom can no longer find doctors willing to manage their care, Gronbach said. Some doctors have even posted signs at their offices saying they don’t take pain patients.

“It’s as sad as I’ve ever seen it,” Gronbach said. “It’s been so vilified that my patients, on a daily basis, come in crying.”

One of the trickiest sections in the proposed administrative rule focuses on the “clinically meaningful improvement in function” that must be documented to justify keeping a worker on opioids for many weeks after the injury or surgery.

“Nobody can measure pain,” Gronbach said. “We don’t have a tool for that.”

Still, bureau officials and others say, there is little doubt that liberal prescribing of drugs once largely reserved for cancer, end-of-life or postoperative care has hindered the recoveries of untold numbers of workers in Ohio and elsewhere, resulting in dependence, addiction and fatal overdoses.

“I am 100 percent sure that opioids have contributed to long-term disability in the workers’ comp system,” said Dr. Gary Franklin, medical director at the Washington State Department of Labor & Industries. “People are losing their lives because we haven’t figured out how to take good care of people in pain.”

Franklin spoke during the bureau’s medical and health symposium last month, along with Dr. Jane Ballantyne, a pain expert at the University of Washington.

“The reason opiates don’t work very well long term is because of tolerance and dependence,” she said, so many patients don’t wind up with good pain relief anyway. “Probably 90 percent of pain that’s treated with opiates shouldn’t be.”

Dr. Stephen Woods, medical director for the Ohio Bureau of Workers’ Compensation, said officials have made the most progress curbing excessive prescribing during the acute phase of an injured workers’ case, or when injuries are relatively minor.

“What’s more challenging is the people who have been on opioids long term,” he said.

Hanna expects plenty of discussion as the proposal moves to the bureau’s board of directors and on to a bipartisan legislative panel for review. Officials are open to adjustments but committed to change.

“You’ll never mop your way out of it,” Hanna said, “if you don’t shut off the water.”

rprice@dispatch.com

@RitaPrice