Legislatures in many states have new issues to deal with regarding workers compensation insurance, but more importantly, workplace safety.
The elephant in the room is medical marijuana. Now that states have legalized medical marijuana, is it legal to drug test for that substance? Certainly the reasons for testing have not changed. Can employers test for it and then require any positive test be backed up with a doctors prescription? Legislatures struggle with the consequences of these laws now, and will for the next few years.
Somewhat connected to the medical marijuana question is drug formularies. Formularies are essentially a list of preferred drugs to use including generics. Doctors treating workers’ compensation injuries are required in some states to follow the guidelines and prescribe the pre-approved medication only, not the branded version of the drug. The cost savings has proven to be small, but worth pursuing.
Companies opting out of workers compensation is under review. So far, only two states have an opt out provision, and so few participants do not allow a meaningful analysis. Texas and Oklahoma allow opt outs, but both states are currently reviewing changes to the program. South Carolina and Tennessee are considering this option. The new workforce of part-time and independent contractors will muddy these waters even more.
Over the last decade, more attorneys have become involved in workers’ compensation claims. Originally and still essentially a no fault system, minimum litigation is a goal. States are considering capping legal fees in workers compensation cases, which, on the surface, suggests the most outrageous employer behavior will be difficult to fight. The over-litigated smaller claims will continue being pursued. This topic is worth watching in the state courts.
The most common cost containment legislation involves fee schedules. Overall, the medicare fee schedule acts as a basis for workers’ compensation allowable fees. With the Affordable Care Act inception, this model may change. Cost containment is, however, a universally important issue.
Allowable drugs in the workplace, cost containment, and corporate financing of costs lead the legislative agenda for workers’ compensation this year.
