Tuesday, October 17, 2017

Published:05/18/2017

Going into Thursday the General Assembly had only passed 37 bills including the 16 appropriation bills.  Many hoped and expected the pace to pick up as many bills had been referred to conference committees to negotiate compromises between the versions passed by each chamber.  While the pace did quicken, this year the General Assembly passed 76 bills which is the fewest passed since 1990.

As we have reported previously, the pace of the year's activities was one of the most unusual.  While there were several priorities of the Greitens' administration passed many issues were left unresolved.

Moving into Friday, the House continued to amend and pass Senate Bills, while the Senate pace slowed again. Rumors circulated in the Capitol about the Senate using the previous question motion to bring one or more priority issues which had stalled to a vote in the Senate.

After returning from morning recess, the previous question motion was made in the Senate to force a vote on SS for HCS for HB's 1193 and 1194.  These bills would nullify the minimum wage ordinances approved for St. Louis and Kansas City.

Once the motion was made in the Senate, the Democrats tried to gain control of the floor.  After several parliamentary rulings, the Senate began to vote on the motions to pass the SS for HCS for HB's 1193 and 1194. The voting procedure for SS for HCS for HB's 1193 and 1194 took until 5 pm on Friday leaving only an hour in session. With emotions running high in the Senate following the passage of minimum wage, the Senate adjourned for the session.

Following adjournment of the House and Senate, Governor Eric Greitens held a press conference to discuss the legislative session. There were a number of priorities cited by the Governor which were passed by the General Assembly during the session.  These included the repeal of right to work, minimum wage nullification and tort reform measures.

It's widely believed the Governor is considering calling the General Assembly back in session sometime this summer to deal with as of yet undetermined issues. These rumors have been circulating for the past several weeks.

Senator Dave Schatz was able to bring SB 66 up for debate mid-week.   SB 66 had been amended in the House to include the provisions relating to group trusts.

When taken up in the Senate, Senator Rob Schaaf raised concern about the 24-hour timeframe relating to drug testing.  In the end, he found no other Senators willing to prolong the debate on the bill and it was passed.  The bill now goes to Governor Greitens for his review.   Once the bill is signed it will take effect on August 28.

A summary of the provisions in SB 66 follows.

S CORPORATIONS

This act authorizes, beginning January 1, 2018, a shareholder of an S corporation with at least 40% or more interest in the S corporation to individually elect to reject coverage under the workers' compensation laws by providing a written notice of the rejection to the S corporation and its insurer.

MAXIMUM MEDICAL IMPROVEMENT

Under this act, for the purposes of workers' compensation laws, the term "maximum medical improvement" is defined as the point at which the injured employee's medical condition has stabilized and can no longer reasonably improve with additional medical care, within a reasonable degree of medical certainty.

In the case of temporary total and temporary partial disability benefits, such benefits shall only continue until the employee reaches maximum medical improvement unless such benefits are terminated by the employee's return to work or are otherwise terminated under law. In the case of permanent total disability, compensation shall be paid during the continuance of such disability from the date of maximum medical improvement for the lifetime of the employee at the appropriate weekly rate.

For all compromise settlements offered after a claimant has reached maximum medical improvement, such claimants have 12 months after receiving an initial permanent disability rating from the employer's physician to acquire a rating from a second physician of his or her own choosing. Absent extenuating circumstances, if after 12 months the claimant has not acquired a second rating then any compromise settlement entered into shall be based upon the initial rating. Employers may waive these provisions with or without stating a reason.

REDUCTION OF WORKERS' COMPENSATION AWARD BASED ON USE OF DRUGS

Under current law, if an employee fails to obey any rule or policy of an employer relating to the use of alcohol or non-prescribed controlled drugs in the workplace, the compensation or death benefit available under workers' compensation laws shall be reduced by 50% if the injury was sustained in conjunction with the use of alcohol or non-prescribed controlled drugs.

This act provides that any positive test for a non-prescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption that the tested non-prescribed controlled drug was in the employee's system at the time of an accident or injury and that the injury was sustained in conjunction with such drug if:

The initial testing was      administered within 24 hours of the accident or injury;Notice was given to the      employee of the test results within 14 calendar days of the insurer      receiving actual notice of the results;The employee was given an      opportunity to perform a second test; andThe initial or any subsequent      testing which forms the basis of the presumption was confirmed by mass      spectrometry using generally accepted medical or forensic testing      procedures.

TERMINATION OF DISABILITY PAYMENTS - VOLUNTARY SEPARATION

If an employee voluntarily separates from employment at a time when the employer made work available for the employee which was in compliance with any medical restriction imposed upon the employee as a result of an injury that is the subject of a claim for benefits under workers' compensation, neither temporary total disability nor temporary partial disability benefits shall be payable to the employee.

HEARINGS FOLLOWING TERMINATION OF WORKERS' COMPENSATION BENEFITS

Under current law, the Division of Workers' Compensation is required to set a hearing for any dispute over the termination of workers' compensation benefits within 60 days of an employee making a request for a hearing. This act requires a hearing to be set within 30 days.

DEATH BENEFITS AND BURIAL EXPENSES

This act modifies the definition of "dependent" for purposes death benefits and burial expenses available under workers' compensation laws. The term "dependent" is modified to mean only the claimant's spouse or the claimant's natural, posthumous, or adopted child or children, including any stepchild claimable by the deceased on his or her federal tax return at the time of injury, who are under the age of 18 years or over that age but physically or mentally incapacitated from wage earning. The act additionally eliminates partial dependents from the definition of "dependent."

LINE OF DUTY COMPENSATION

Under current law, the estate of a deceased law enforcement officer, emergency medical technician, air ambulance pilot, air ambulance registered professional nurse, or firefighter who is killed in the line of duty is eligible to receive $25,000 in compensation. Under this act, such compensation shall be awarded as follows:

If there are no children, the      surviving spouse shall be awarded the compensation;If there is at least one      eligible child and a surviving spouse, the child shall receive 50% and the      surviving spouse shall receive 50%, provided that if there are multiple      children, the children shall receive equal shares of 50% of the      compensation;If there is no surviving      spouse, any eligible surviving children shall receive equal shares of the      compensation.If there is no surviving spouse      or qualified surviving child, compensation shall be awarded to the      individual who has been designated by the deceased in the most recent      designation of beneficiary that is on file with the public safety      organization; provided that if there is no such designation, compensation      shall be awarded to the individual designated as beneficiary under the      most recently executed life insurance policy of the deceased;If there is no beneficiary of a      life insurance policy of the deceased, compensation shall be awarded to      the surviving parent or parents, in equal shares;If there are no surviving      parents of the deceased, compensation shall be awarded to the children of      the deceased who are over 18 years of age, in equal shares.

TRUST SELF-INSURERS

The act allows self-insured trusts to submit proof of payment of 25% of the estimated annual premium to the Division of Workers' Compensation. It also allows for proration of premiums paid to the the trust. Self-insured trusts are further permitted to invest surplus moneys from a prior trust year not needed for current obligations.

DISCHARGE AND DISCRIMINATION

Under current law, no employer or agent shall discharge or in any way discriminate against any employee for exercising any of his or her rights under workers' compensation statutes. This act modifies that provision so that no employer or agent shall discharge or discriminate against any employee when the exercising of such rights is the motivating factor in the discharge or discrimination.

As we reported in a prior legislative update there were eight administrative law judge positions eliminated during this budget cycle. Those reductions will take effect with the new fiscal year beginning on July 1st.

There were several other legal related measures passed this session.  We have included summaries in the report for them as well.

HB 153 -- EXPERT WITNESSES

This bill specifies that a witness who is qualified as an expert may testify in the form of an opinion or otherwise if the expert's specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.  If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, such facts or data need not be admissible for the opinion to be admitted. However, if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

An expert opinion is not objectionable just because it embraces an ultimate issue.  In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.

The bill specifies the provisions do not prevent a landowner from testifying as to the value of their land. Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or data. However, the expert may be required to disclose those facts or data on cross-examination. Certain actions are excluded from the provisions of this bill, including actions in the family courts, juvenile courts, the probate division, and all other actions or proceedings in which there is no right to a jury trial.

SS for SCS for HCS for HBs 339 & 714 - SETTLEMENT OF TORT CLAIMS

This bill provides that a time-limited demand to settle any claim for personal injury, bodily injury, or wrongful death must be in writing and sent by certified mail to the tortfeasor's liability insurer, and it must include various material terms specified in the bill.  Additional information, as provided in the bill, must accompany the demand including authorizations to allow the party to obtain records from all employers and medical care providers.  Upon receipt of a time-limited demand, a recipient may ask for clarification of the terms without it being considered a counteroffer or rejection of the demand.

After acceptance of the time-limited demand, the defendant may provide payment to the claimant in the form of cash, money order, wire transfer, cashier's check, draft or bank check, or electronic funds transfer.  A claimant may require payment within a specified period of time, but cannot be less than 10 days after written acceptance of the time-limited demand.

This bill does not apply to offers made within 90 days of the trial

HB 452 -- ACTION AGAINST HEALTH CARE PROVIDERS

The bill creates a definition for the term "employee" and repeals the definition for the term "physician employee" in provisions relating to causes of action for damages against a health care provider for personal injury or death. With certain exceptions, no health care provider shall be liable to any plaintiff for the negligence of another entity or person who is not an employee of the health care provider.

SS#2 for SCS for SB 43 - UNLAWFUL DISCRIMINATORY PRACTICES

Currently, under the Missouri Human Rights Act (MHRA), a practice is unlawful when the protected classification is a contributing factor in the decision to discriminate. This act changes that standard to the motivating factor. The motivating factor is defined to mean that the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action. The person must further prove that such action was the direct proximate cause of the claimed damages.

EMPLOYERS AND EMPLOYMENT AGENCIES UNDER MHRA

Currently, persons acting in the interest of employers are considered employers under the MHRA and are each liable for discriminatory practices. This act modifies the definition of employer to exclude such individuals. The act similarly excludes certain entities from the definition of employment.

Under current law, any person acting in the interest of a person or agency that regularly undertakes to procure employees for an employer or to procure for employee's opportunities to work for an employer is considered to be an employment agency. This act repeals that provision.

UNLAWFUL DISCRIMINATORY PRACTICES

This act provides that the entities subject to prohibitions on certain unlawful discriminatory practices are limited to employers, employment agencies, labor organizations, or places of public accommodations.

EXCLUSIVE REMEDY

The act provides that the MHRA, the Workers' Compensation chapter, and the general employment law chapter shall be the exclusive remedy for any and all claims for injury or damages arising out of the employment relationship.

FILING OF COMPLAINTS WITH THE COMMISSION

Current law provides that any person claiming to be aggrieved by an unlawful discriminatory practice may make, sign, and file with the Missouri Human Rights Commission a verified complaint in writing. This act stipulates that such persons are required to file such a complaint as a precedent to filing a civil action under the MHRA. Furthermore, the failure to timely file a complaint with the Commission shall deprive the commission of jurisdiction to investigate the complaint. Complainants shall file such complaint with the Commission within 180 days of the alleged act of discrimination. Failure to timely file may be raised as a complete defense by a respondent or defendant at any time.

Current law provides that the Commission shall issue to aggrieved persons a "right to sue" letter in the following circumstances:

If the person has filed a      complaint with the Commission and the person requests such a letter in      writing; orIf after 180 days from filing a      complaint with the Commission, the Commission has not completed its      administrative process and the person has requested such a letter in      writing.

This act stipulates that the Commission may not at any other time or for any other reason issue a letter indicating a complainant's right to bring a civil action.

JUDICIAL INTERPRETATION

The act abrogates McBryde v. Ritenour School District, recommends the use of the burden shifting analysis used by the U.S. Supreme Court in McDonnell-Douglas Corp. v. Green when it is not a case involving direct evidence of discrimination and expressly abrogates all existing Missouri approved jury instructions concerning the MHRA.

RELIEF AVAILABLE UNDER MHRA CASES

Parties to a discrimination case under the MHRA have a right to a jury trial.

Damages awarded for employment cases under the MHRA shall not exceed back pay and interest on back pay and:

• $50,000 for employers with between 5 and 100 employees;

• $100,000 for employers with between 100 and 200 employees;

• $200,000 for employers with between 200 and 500 employees; or

• $500,000 for employers with more than 500 employees.

WHISTLEBLOWER'S PROTECTION ACT

The act creates the "Whistleblower's Protection Act." Employers are barred from discharging the following persons:

an employee of an employer who      reports an unlawful act of the employer; an employee of an employer who      reports to an employer serious misconduct of the employer that violates a      clear mandate of public policy as articulated in a constitutional      provision, statute, or regulation promulgated under statute; an employee of an employer who refuses      to carry out a directive issued by an employer that, if completed, would      be a violation of the law; or an employee of an employer who      engages in conduct otherwise protected by statute or regulation where the      statute or regulation does not provide for a private right of action.

RELIEF AVAILABLE UNDER WHISTLEBLOWER CASES

Employees have a private right of action for actual but not punitive damages under the act unless another private right of action for damages exists under another state or federal law. Parties to an action under this provision may demand a jury trial. Remedies allowed are backpay, reimbursement of medical bills incurred in treatment of mental anguish, and double those amounts as liquidated damages if it is proven by clear and convincing evidence that the employer's conduct was outrageous because of the employer's evil motive or reckless indifference to the rights of others. The liquidated damages shall be treated as punitive damages and backpay and reimbursement shall be treated as compensatory damages in a bifurcated trial if requested by a party. Attorney's fees may be recovered upon a showing that the case was without foundation.

The bill contains a severability clause.

The final bill summary and status report below.  Should you have questions, please don't hesitate to contact us.


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