MO: Employment Discrimination and Opiate Abuse Enforcement in Workers' Comp Bill Package

St. Louis, MO (WorkersCompensation.com) – The “Show Me State” is showing how they make workers’ comp reform happen.

Senate Bill 66, introduced by Sen. David Shatz (R-Franklin and West St. Louis Counties), was an initiative Shatz felt strongly about due to his underground utility family business, according to Dan Kleinsorge, Chief of Staff to the Senator’s office.

“He was looking (at) workers’ compensation reform, now that we have a Republican governor and there are a number of issues that have been put off for years,” Kleinsorge said of the legislative package the Senator’s office worked on with the Missouri Chamber of Commerce.

Some prevalent changes in the package relate to contributing/motivating factors of employment discrimination based on a Supreme Court ruling, medical limitations, and the abuse of opiates while on workers’ compensation.

Nationwide law firm attorney Bryan Cave recently reported on the bill in a Lexology article, noting how in Templemire v. W&M Welding, the Supreme Court ruled that for the submittal of a reprisal claim, “an employee must demonstrate his or her filing of a workers’ compensation claim was a ‘contributing factor’ to the employer’s discrimination or the employee’s discharge.”

Senate Bill 66 dissolves that ruling.

Bryan Cave Employment Labor Esquire Charles Jellinek, partner at the St. Louis firm, said in an email to WorkersCompensation.com that since the Templemire v. W&M Welding case, there has been a noticeable increase in the filing of claims for retaliation under the Missouri Workers’ Compensation Act.

“The Court in Templemire made the burden of proof so low that many claimants’ workers’ compensation lawyers began filing retaliation lawsuits for any injured employee who was terminated because, under the lower burden of proof, employers were forced to settle even the most meritless of cases lest they face an expensive trial,” he said.  

Jellinek added the Missouri legislature fixed the system by enacting a middle-ground approach, which now requires a plaintiff claiming retaliation to prove that an exercise of rights under the Workers’ Compensation Act was “the motivating factor” for the termination decision. 

“With the motivating factor standard, the Missouri Legislature struck a good balance between protecting employee rights to be free from retaliation, and protecting Missouri employers from frivolous and expensive claims,” the attorney said, adding that the legislation attempts to correct a perceived imbalance following the Supreme Court decision.

“It is a huge reform package and it was a pretty big deal to get that done,” Kleinsorge said, noting the discrimination part of the package was especially vital since “it is really kind of the intersection of workers’ compensation and tort reform.”

“If you have a situation where if someone had any claim in their history of a papercut, and they got fired and they could somehow tie that claim to their termination, they would have a discrimination suit,” he explained. “So that was very concerning and getting that done was a really big deal.”

The Senator’s Chief of Staff said every state would do well in being cautious with workers’ compensation and tort issues, to strike the right balance between the plaintiff and defendant, and Workplace Fairness Executive Director Paula Brantner agrees.

“Organizations like Workplace Fairness in employment discrimination and workers’ compensation are important because people don’t know about or think about what their rights are until something bad happens, which is especially true in the workers’ compensation situation because you hopefully have never been injured before,” she said.

“Or don’t think you will be injured at work; and so when this suddenly happens to you, you are thrown into the workers’ compensation system that you don’t know anything about,” Brantner said. The director said the not-for-profit has materials for injured workers and employment discrimination on hand and online. “We are here 24/7, 365 days of the year free of charge. You don’t have to wait for lawyers’ office to open or agree to represent you.”

Lastly, SB 66 deals with drug testing and workers’ compensation, Kleinsorge said. “For example, if you test positive for a drug test, within 48 hours you will be found to be taking drugs in conjunction with your injury, your award will be decreased 50 percent, but that can be rebutted with proponent’s evidence,” he said, noting the matter can be argued before an administrative law judge in undecided cases.

Jellinek said the use of controlled substances by employees has long been a concern of employers, in Missouri and elsewhere. “While workers’ compensation laws exist for the protection of the employees who suffer a workplace injury, laws on the books now and those that were just passed in Missouri make a clear statement that an employee’s use of drugs in the workplace will have consequences to the employee,” he said.

The law now provides that a confirmed positive test of controlled substances in an employee’s system will be presumed to have impacted an alleged workplace injury, which can result in a reduction or forfeiture of benefits, explained Jellinek. 

“The new law supports employers who implement drug-free workplace policies, safety policies and drug testing policies by saying to employers ‘we are not going to hold you responsible for injuries to employees who come to work impaired,’” he said.

Jellinek said that the Missouri law regarding the definition of maximum medical improvement provides for the termination of temporary total disability benefits if an employee resigns or quits when the employer has work available for the injured employee that meets medical restrictions. 

“Workers’ compensation attorneys in Missouri should certainly review these important changes, but the bulk of Missouri law remains unchanged,” he said. The legislation will become a mandate in a matter of months.

“You have to be able to operate in an environment of reasonable certainty and that is the balance we were trying to strike with this reform,” Kleinsorge said of the Aug. 28 implementation date. “That will become the law of the state and that will be a good deal for us.”

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