Cypen & Cypen
November 10, 2016
Stephen H. Cypen, Esq., Editor
1. MIAMI BEACH TO COPS: TO GET ZIKA WORKERS' COMP, SHOW US SPECIFIC MOSQUITO THAT BIT YOU: In a piece from the Miami New Times, now it appears that applying for Zika-related workers' compensation with the City of Miami Beach might be straight-up impossible. In a letter sent to the Miami Beach Police union president, City Manager Jimmy Morales said cops who want the city to pay their hospital bills will have to pinpoint the exact Zika-carrying mosquito that bit them. "He must show that the exposure/bite took place while on duty and identify the specific infected mosquito," Morales wrote in the letter. It is more than an academic question for some Miami Beach cops. At least two officers have Zika and are certain they caught it while on patrol in the Zika hot zone, says Bobby Jenkins, head of Miami Beach's police union. The first officer, Michelle Sayegh, lives in Broward County, miles from either of the state's two Zika "active transmission zones," which are both in Miami-Dade County. Sayegh works as a cop on Ocean Drive, well within Miami Beach's Zika zone. The police union says that Sayegh was initially granted workers' compensation but that it was yanked from her days later. The second Zika-positive cop, a 20-year veteran, was denied outright. In most cases, employees must pay hospital bills for workers who are injured or become ill while on the job. Jenkins accuses the city of holding its employees to an insane standard to prove they caught Zika at work. The outcome of the fight could have big implications nationally. Labor lawyers warn the first few Zika workers' comp cases in Florida could set a precedent for tropical-disease cases across the nation. The police union provides its members medical insurance. But Jenkins says the two cops with Zika were forced to take sick leave and pay for any of their deductibles. Sayegh was later given her sick days back and placed on paid administrative leave, but Jenkins says the case is more about setting a precedent for all city employees, not just Sayegh or the police department. "If we set the precedent for Zika, no one is gonna take care of it," Jenkins said. He said he has been fighting Miami Beach for two months to get the city to "show benevolence" and develop a process for its employees to get their hospital bills paid if they catch Zika at work. He sent the city a letter demanding changes by Monday, October 31, but the city did not respond until recently. A spokesperson for the Fraternal Order of Police could not immediately comment on Morales' letter. Jenkins himself could not be reached. The city, however, says it is basically impossible to prove that either cop caught Zika on duty. In his letter to Jenkins, Morales said the two cops have not sent the proper medical documents to qualify for workers' comp in the first place. He also said that the city has received "limited/insufficient" medical records from the two cops -- that both officers have not released their records in writing to the city, and one officer has not submitted any test results. Morales also castigated the union for blowing the situation out of proportion. In Jenkins' letter, he stated that infection risks for first responders were "exponential in comparison to the rest of the population," a statement that Morales said was untrue. Instead, he said, Miami Beach residents are forced to deal with the brunt of the virus' effects. He also said the two police officers are not the only city employees who have caught Zika. "To reiterate, unlike heart conditions, there is no presumption that Zika is an occupational disease," Morales wrote. "Miami Beach is applying the workers' compensation law properly, and, based on the existing workers' compensation statutes, a denial of both known recent claims is warranted." He then added, "If the Claimant can produce the proper medical and scientific evidence which is absent at this time, then we will obviously reconsider." So if you work on the Beach and want to get workers' comp for Zika, you better hope the next mosquito that bites you leaves its information before flying away. Or, perhaps, a mosquito registration program would work.
3. PENSION LIABILITIES FOR 50 LARGEST LOCAL GOVERNMENTS JUMP 192% SINCE 2005: Pionline.com reports the adjusted net pension liabilities for the 50 largest local governments totaled $367 billion in fiscal year 2015, up 192% from 2005, said a report from Moody’s Investors Service. Of the 50 municipal entities reviewed, 32 had greater adjusted net pension liabilities than net direct debt in 2015, up from 14 in 2005, Moody’s estimated. The median adjusted net pension liability compared to all governmental revenues across the 50 entities was 147% in 2015, up from 70% 10 years earlier. Those with the highest adjusted net pension liabilities as a percentage of 2015 operating revenue were Chicago at 719%, followed by Dallas at 549%, Phoenix at 434%, Houston at 414% and Los Angeles at 407%. Local governments reporting the lowest adjusted net pension liabilities as a percentage of operating were Wake County, N.C., at 22%; Mecklenburg County, N.C., 25%; Washington, D.C., 38%; Cypress-Fairbanks Independent School District, Houston, 52%; and North East Independent School District, San Antonio, 56%. Regarding pension contributions, the 50 local governments contributed a total of $17.6 billion in 2015, up from $7.4 billion in 2005. The median pension contribution was 5.2% of all governmental revenues in 2015, compared to 3.6% in 2005. Only 24 of the 50 entities surveyed contributed enough to stem unfunded pension liability growth. Moody’s expects adjusted net pension liabilities to increase 6% in fiscal year 2016 and another 31% in fiscal year 2017 due to poor investment performance in 2015 and 2016, and lower discount rates.
4. DO EMPLOYERS NEED TO ACCOMMODATE IF THE EMPLOYEE DOES NOT ASK?: Most employers are aware of their obligation to explore reasonable disability accommodations when an employee asks for such a measure. But, what if the employee never asks? A new decision out of the United States Court of Appeals for the Eighth Circuit raises the concerning possibility that an employer could indeed be held liable for failing to provide a disability accommodation even if the employee never requested one according to International Foundation of Employee Benefit Plans. In that case, a respiratory therapist at a North Dakota hospital took a leave of absence to undergo spinal surgery. After the surgery, she returned to her job with lifting and work hours restrictions. Not long after her return, the hospital reminded employees of the need to complete a CPR certification test. The respiratory therapist took and passed the written portion of the test, but notified her employer that she could not complete the physical portion until cleared by her physician. Because CPR certification was an essential function of the respiratory therapist position, the hospital terminated her employment. The employee sued under the Americans with Disabilities Act, claiming that the hospital should have allowed her additional time to obtain CPR certification, or transferred her to another position that did not require this certification. In response, the employer noted that the respiratory therapist never requested any such accommodations. The court sided with the employee, determining that a jury could reasonably conclude that she had sufficiently "made her employer aware of the need for an accommodation" -- even if she did not actually request one -- when she informed the hospital of her surgery and resulting limitations. The court reasoned that an employee is not required to "invoke the magic words reasonable accommodation'" to trigger the employer's obligation to explore the need for a reasonable accommodation through the interactive process. ADA issues present many challenges and employers should always be alert and review ADA best practices. Following this case, an employer should not simply wait for an accommodation request. Rather, an employer should begin the interactive process as soon as it learns that the employee has a physical or psychological condition that may be impacting his or her job performance. This has always been a best practice, but is now backed up by the threat of possible ADA liability if not followed. Determining whether a particular situation raises the need to engage in the interactive process can be tricky, and employers are well advised to seek legal counsel when unsure of whether they may have duties to accommodate.
5. CAN PENSION PLANS HELP THE ECONOMY?: Much of the discussion surrounding defined benefit pension plans has centered upon plan level funding issues -- discount rates, liabilities, contribution requirements and participant income security. This discussion has reinforced concerns about the future of DB pensions: underfunding, frozen plans, 401(k) conversions, and little growth in new pension plans offered by employers according to benefitspro.com. These factors, while important, represent “micro,” or plan-level issues and do not paint a complete picture of the role of DB pensions. What should not be lost in the discussion are the potential beneficial impacts of the DB pension system in the overall, or “macro” US economy. Below, are several possible macro benefits of DB pension plans and how pension plans can help the economy.
6. NEW LAW SETS W-2 FILING DEADLINE; SOME REFUNDS COULD BE DELAYED: A new federal law moves up the W-2 filing deadline for employers and small businesses to January 31. The new law makes it easier for the IRS to find and stop refund fraud. It also delays some taxpayer refunds. Those taxpayers claiming the Earned Income Tax Credit or the Additional Child Tax Credit will not see refunds until February 15, at the earliest according to the Internal Revenue Service.
Here are some key points:
7. MYTHS AND FACTS ABOUT SOCIAL SECURITY’S DISABILITY PROGRAM: Social Security Matters blog has given us four myths and facts about Social Security’s Disability Program:
8. FUN WITH WORDS: When a clock is hungry it goes back four seconds.
9. PARAPROSDOKIAN: If you can smile when things go wrong, you have someone in mind to blame.
10. TODAY IN HISTORY: In 1919, first observance of National Book Week.
11. KEEP THOSE CARDS AND LETTERS COMING: Several readers regularly supply us with suggestions or tips for newsletter items. Please feel free to send us or point us to matters you think would be of interest to our readers. Subject to editorial discretion, we may print them. Rest assured that we will not publish any names as referring sources.
12. PLEASE SHARE OUR NEWSLETTER: Our newsletter readership is not limited to the number of people who choose to enter a free subscription. Many pension board administrators provide hard copies in their meeting agenda. Other administrators forward the newsletter electronically to trustees. In any event, please tell those you feel may be interested that they can subscribe to their own free copy of the newsletter at http://www.cypen.com/subscribe.htm.
13. REMEMBER, YOU CAN NEVER OUTLIVE YOUR DEFINED RETIREMENT BENEFIT.
Copyright, 1996-2016, all rights reserved.
Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.