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February 2017 Archives

It's Your Choice: Pay Attention to Anonymous Complaints Now or Pay Your Defense Attorney Later

Should your company pay any attention to anonymous complaints? I recently heard two people say that anonymous complaints are not worth the paper they are written on. These comments came during a presentation I gave on employee handbooks. I was outlining the elements of a good handbook policy on sexual harassment. One element is a channel for employees to anonymously report harassment.

Whole Body Medical Impairment Threshold under Consideration by WV Supreme Court

Employers across the state of West Virginia are waiting for the West Virginia Supreme Court of Appeals to issue its decision in a case involving permanent total disability (PTD). Argued on February 14, 2017, the case involves the proper application of West Virginia Code § 23-4-6(n)(1), the West Virginia Code of State Rules § 85-20-64.1 (Rule 20), as well as the court's previous holding in Bowles v. The New West Virginia Mining Co., No. 14-1066 (July 9, 2015), as they relate to the required threshold of impairment for PTD.

Senate Bill 55 - Admissibility of Evidence for the Use or Nonuse of Safety Belt in a Civil Action

Senate Bill 55, introduced on February 8, 2017 and referred to the Senate Judiciary Committee. Senate Bill 55 seeks to amend and reenact §17C-15-49 of the West Virginia Code relating to the use, misuse or nonuse of a safety belt as admissible evidence in a civil action for damages.

HB 2345, SB195, SB196 and SB 254 Put Licensing Boards on the Chopping Block

Several Bills have been introduced that would eliminate certain healthcare licensing boards. They are: House Bill 2345, eliminating the State Board of Examiners for Licensed Professional Nurses; Senate Bill 195, eliminating the Medical Imaging and Radiation Therapy Board; Senate Bill 196, eliminating the Massage Therapy Licensing Board; and Senate Bill 254, eliminating the Nursing Home Administrators Board.

Senate Bill 287 - More Proposed Legislation to Address Medical Monitoring Claims

On February 14, 2017, State Senators Blair and Azinger introduced Senate Bill 287 to create a new Code section dealing with Medical Monitoring. It is similar to another Bill, introduced by Senators Trump and Weld that I previously discussed here, SB 236.

House Bill 2145/Senate Bill 47 - Permitting Employers to Discriminate Against Tobacco Users

Since 1992, West Virginia has prohibited employers, public and private, from discriminating against any job applicant or employee in the "compensation, terms, conditions and privileges of employment" based on that individual's use of "tobacco products off the premises of the employer during nonworking hours."

Senate Bill 236 - Limiting Medical Monitoring Damages, When They are Paid and Providing a Refund When Monies Not Used

In another effort at tort reform, Senate Bill 236 seeks to limit medical monitoring damages that can be awarded, how monies will be paid and when monies will be returned to defendants who have paid medical monitoring damages.

House Bill 2159 - Establishing a Claim for Bullying in the Workplace

The issue of bullying has come front and center in recent years, especially with the widespread use of social media and the ability of a person or people to, either directly or anonymously, threaten, demean, or humiliate others.

House Bill 2301 - A Form of Concierge Medicine for West Virginia

In the 2006 Regular Legislative Session, the Legislature enacted the West Virginia Preventive Care Pilot Program, Chapter 16, Article 2J of the West Virginia Code. The purpose of the pilot program was to test the feasibility of patients obtaining direct primary and preventative care from healthcare providers for a pre-paid retainer outside of the traditional health insurance model.

House Bill 2006 - Enhanced Penalties for Retaliation Against Whistle-blowers

West Virginia has enacted legislation designed to protect "whistle-blower" employees of the State and its political subdivisions from retaliation and allows such an employee to bring a civil action for redress if the State or a political subdivision discharges, threatens or otherwise discriminates or retaliates against an employee because the employee makes a good faith report to the employer or an appropriate authority of instances of wrongdoing or waste by a governmental entity.

House Bill 2017 - Mandatory Overtime for Holiday Work

House Bill 2017 is the first introduced legislation of the 2017 Session to address West Virginia's Minimum Wage and Maximum Hour Standards. Specifically, HB 2017 seeks to require that if an employer, public or private, requires an employee to work a state holiday, then the employee is entitled to time and a half for working that day regardless of whether the employee has worked forty (40) hours in the work week.

House Bill 2202 - Expanding the Scope of Human Rights Commission Investigation

A person may file a claim with the West Virginia Human Rights Commission to allege that he or she was the victim of unlawful employment discrimination. By statute, the Commission is required to conduct an investigation into the allegations if the Commission has reason to believe that an unlawful discriminatory practice has been committed.

Senate Bill 224 - Eliminating Wage Payment Bonds for Some Employers

Senate Bill 224, introduced on February 9, 2017, seeks to eliminate entirely a required bond for certain employers in the construction and mining industries to secure payment of wages and benefits for employees.

Senate Bill 77- Prohibiting Discrimination on the Basis of Sexual Orientation

In recent years, many states and municipalities across the United States have sought to enact statutes and ordinances to include "sexual orientation" amongst the classes traditionally protected from discrimination. West Virginia Senate Bill 77, introduced on February 15, 2017, similarly seeks to amend the West Virginia Human Rights Act and West Virginia Fair Housing Act to include "sexual orientation" as a protected class and prohibit discrimination in employment, places of public accommodation, and housing on the basis of "sexual orientation."

Senate Bill 197

Senate Bill 197 was introduced by Senator Tom Takubo on February 8, 2017, and was referred to the Committee on the Judiciary. The bill would amend and reenact § 57-5-5j of the West Virginia Code, and serve to exclude certain medical care amounts from compensatory damage awards. Specifically, the bill would prevent damage awards for medical expenses that the claimant has not - and will not - pay for medical care or treatment.

Senate Bill 4 - Incentivizing Indigent Care

In the past, the West Virginia Legislature has encouraged healthcare providers to donate their time and talents to care for indigent patients, including creating special licenses for retired providers to continue practicing for the limited purpose of volunteering at free clinics and also providing civil immunity for that free care. See e.g. W.Va. Code § 30-3-10a.