On Monday, May 8, 2017, the Missouri Legislature passed Senate Bill 66. Senate Bill 66 amended a number of sections of the Missouri Workers’ Compensation Act. Of significant note for employment litigators, Senate Bill 66 modifies the burden of proof for workers’ compensation retaliation claims under §287.780 R.S.Mo. This change was a direct response to the Missouri Supreme Court’s decision in Templemire v. W&M Welding, Inc., 433 S.W.3d 371 (Mo. 2014).
In Templemire v. W&M Welding, Inc., the plaintiff alleged he was fired in retaliation for filing a workers’ compensation claim. The trial court entered judgment in favor of the employer. The Missouri Supreme Court ultimately reversed and held that to make a submissible claim of retaliation under §287.780 R.S.Mo., “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.” The Templemire decision was regarded by employers in Missouri as controversial. Templemire rejected stare decisis and overturned two prior Missouri Supreme Court cases that had held that a plaintiff asserting a claim under § 287.780 must prove an exclusive and casual relationship between plaintiff’s actions and defendant’s actions. Templemire rejected these prior holdings in favor of the “contributing factor” standard it had adopted for Missouri Human Rights Act claims.
Senate Bill 66 undoes the holding of Templemire, and §287.780 now provides:
No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination. Any employee who has been discharged or discriminated against in such manner shall have a civil action for damages against his or her employer. For purposes of this section, ‘motivating factor’ shall mean that the employee’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.
Senate Bill 66 changes the Missouri Workers’ Compensation Act in other important ways for Missouri employers:
- It provides that a positive test result for a non-prescribed drug shall give rise to a rebuttable presumption that the tested non-prescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested non-prescribed controlled drug under testing requirements set by the Act, which can result in a reduction or forfeiture of benefits.
- It provides that if an employee voluntarily separates from employment at a time when the employer had work available that was in compliance with any medical restriction imposed upon the employee as a result of the injury that is the subject of a claim for benefits under the Act, neither temporary total disability nor temporary partial disability benefits shall be payable to the employee.
If signed by the Governor, Senate Bill 66 will become law on August 28, 2017.
Some practical tips:
If a Missouri employer has an employee who asserted rights under the workers’ compensation act, or who has been our on a long-term workers’ compensation leave, and the employer is contemplating a termination decision, delaying the termination until after August 28, 2017 should be considered. If the employee files a claim under §287.780, the employer will want the benefit of the new burden of proof standard.
- Missouri employers should review their drug-free workplace policies, amend them if necessary, and disseminate to the workforce.
- Missouri employers should review their drug testing procedures and policies to ensure they comport with the new provisions in the Act, so that the employer might seek to reduce or reject benefits to an employee who was injured as a consequence of the use of non-prescribed drugs.
- Missouri employers should look for ways to accommodate medical restrictions of injured employees to manage temporary total disability obligations.
A link to Senate Bill 66 can be found here: http://www.senate.mo.gov/17info/pdf-bill/tat/SB66.pdf