Legislature(1997 - 1998)
04/04/1997 03:25 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 214 - WORKERS COMP:TEMP. ASSISTANCE/MED. CONDIT Number 105 CHAIRMAN ROKEBERG announced the committee would hear HB 214, "An Act relating to an employer's knowledge of an employee's physical condition for purposes of the Alaska Workers' Compensation Act; excluding certain participants in the Alaska temporary assistance program from coverage under the Alaska Workers' Compensation Act; and providing for an effective date," sponsored by Representative Pete Kott. Number 137 GEORGE DOZIER, Legislative Assistant to Representative Pete Kott, Alaska State Legislature, came before the committee to present the sponsor statement. He informed the committee that HB 214 does two things. It clears up an inconsistency that currently exists between the Americans with Disabilities Act (ADA) and the Alaska workers' compensation laws. He said when an employer is covered by the ADA, it is illegal for the employer to inquire into the prospective employee's disabilities prior to making a hiring decision or a conditional offer of employment. After a conditional offer of employment has been made then the employee can be required to fill out a medical questionnaire asking him to reveal his/her disabilities and prior injuries, but until that point it's illegal. Mr. Dozier informed the committee that under current Alaska law, employees are denied workers' compensation if they lie about their physical condition in an application for employment or in a pre- employment questionnaire. Obviously, they can't be asked this question under the ADA. So consequently there is an inconsistency here. Under the Supremacy Clause of the United States Constitution this could be deemed to be unconstitutional. Section 1 of HB 214 corrects this problem and makes Alaska statute consistent with the requirements of the ADA. Number 245 MR. DOZIER informed the committee that under current Alaska law, employers are accorded relief from the second injury fund if they hire or retain an employee after learning of a initial injury. That also suggests an inconsistency between Alaska law and the ADA in that it seems to require the employer to know of the initial injury prior to the hiring decision. Section 2 corrects this problem by removing the "hired or" language and simply requires that the employee was retained in employment after the employer acquired the knowledge of the initial injury. MR. DOZIER referred to Sections 3 and 4 and said they clear up a question that has been presented since the recent enactment of welfare reform by the legislature. He explained under welfare reform, recipients of welfare or temporary assistance may be required to engage in work-like activities. This has presented a question as to whether those individuals who are engaged in these activities must be covered under workers' compensation. Mr. Dozier said HB 214 settles that issue and says that if the individual is not receiving compensation for his/her activities, then that individual is not covered by workers' compensation. He said he would be happy to answer questions. Number 464 CHAIRMAN ROKEBERG asked, "When you invoke the Supremacy Clause of the U.S. Constitution, were you talking about the concept of primacy or what?" MR. DOZIER indicated the answer is yes. Number 502 PAUL GROSSI, Director, Division of Workers' Compensation, Department of Labor, came before the committee to testify on HB 214. He said the department supports the bill which basically includes technical amendments to clarify some potential discrepancies and coverage. Mr. Grossi said the first two sections of the bill deal with the potential preemption. They allow the employer to obtain necessary information about an employee's physical condition, but also allows the employee to maintain his or her rights under the ADA. The employer can obtain the information that they need to have the potential coverage that Section 2 talks about, which is coverage under the second injury fund. Mr. Grossi informed the committee that the second injury fund is a dedicated fund that preexisted statehood. The purpose of it was to allow employers to pool money. If they hire or retain an employee who has a permanent physical disability and is later on involved in a second injury, after a certain amount of compensation is paid, they're reimbursed for those compensation benefits. This bill allows that to be maintained. MR. GROSSI said Section 3 clarifies who is covered and who isn't covered under the welfare reform changes. He said there are people who are involved in the public assistance program who would be covered, but there are traditional workers who are involved in an employee/employer relationship where they get paid by the employer to perform the job. All others who are involved in activities that are required so that they can maintain their public assistance or Alaska temporary assistance benefits are not covered under the act. The reason this is necessary is because these things could be involved in litigation. Number 733 REPRESENTATIVE JOHN COWDERY said, "This just excludes part of the ATAPP people or not all of them?" MR. GROSSI responded all of them who are receiving just their benefits under that program. There are those who are eligible for coverage under workers' compensation, but they're traditional employees. There are those who went out and got a job, or what they call it in the law, "unsubsidized work," which is really a job or subsidized work on the job training. "Subsidized" is a job that the employer may have received some grants to help pay wages. It basically covers those who were traditionally covered under the Workers' Compensation Act and excludes those who aren't really employees under the act. CHAIRMAN ROKEBERG asked if there are any other definitions in Alaska Statutes of "on the job training." MR. GROSSI indicated there aren't. He noted AS 23.30.265 relates to definitions. Number 869 CHAIRMAN ROKEBERG asked if the above mentioned definitions are exclusions in AS 23.30.230, which is the workers' comp title. MR. GROSSI said that is true. Number 938 REPRESENTATIVE BILL HUDSON asked Mr. Grossi if he has heard from anyone who against the bill. MR. GROSSI said he doesn't know of anybody against the bill. REPRESENTATIVE HUDSON said, "If we didn't pass this, should we expect an awful lot of people who are going through this temporary assistance program, in may cases unpaid, would have -- and then probably exercise some sort of a claim. Don't you have to have some sort of an income in order to base a claim?" MR. GROSSI responded they do have an income in the sense that they're receiving their public assistance. It's questionable whether they would win, but they would still have the right to file a claim and litigate. REPRESENTATIVE HUDSON said if they're working on this transitionary type of a program and they're injured, why wouldn't we want to provide them with an opportunity for workers' compensation. MR. GROSSI explained workers' compensation was designed to take care of a loss of income and medical costs. They wouldn't lose those; they would receive their temporary assistance of benefits regardless of whether they're able to work or not. He noted they would also be entitled to medical benefits. REPRESENTATIVE HUDSON pointed out that he wasn't in the legislature when the temporary assistance program was enacted. CHAIRMAN ROKEBERG said it is a new program resulting from the Welfare Reform Act. It becomes effective July 1, which is why there is a need for the enactment of the legislation. Number 1211 REPRESENTATIVE JERRY SANDERS asked if this would apply only to someone who lied on an application. MR. GROSSI said the first section applies to making sure that employees give employers correct and accurate information so the employer knows about the physical condition of the employee for several reasons, obviously safety would be one of them. REPRESENTATIVE SANDERS said if they lie, they're not covered. MR. GROSSI said is correct. REPRESENTATIVE SANDERS asked why anyone would lie. He asked what would be gained. MR. GROSSI said he doesn't know why they would lie. He said they might feel that they would gain some employment that they might not gain if they hadn't lied. REPRESENTATIVE SANDERS said, "If someone gets a job and they're on some kind of assistance that's paying for it for a period of time, then that goes away later doesn't it?" MR. GROSSI said Sections 1 and 2 are not really connected to Section 3, only in the sense of a general way that they would be connected to all employment. Section 3 relates to welfare reform and Sections 1 and 2 have to do with potential preemption as a result of the ADA. REPRESENTATIVE KUBINA said Section 1 speaks to someone who has a preexisting condition and lies on his employment application. They would not be eligible for workmens' compensation because they lied. They might already have a back problem before they go to work and then claim they got just got it. That has nothing to do with anybody being on assistance. For the people on assistance, Section 3 defines who is covered on assistance. Some people don't need to be covered because they're already receiving a benefit through the other programs. So they don't need workmens' compensation and there is no sense for an employer to be charged with it. REPRESENTATIVE SANDERS said the object of them going to work is to get them off of the other program. MR. GROSSI said Section 3 just deals with those participants in the temporary assistance program. Once they enter the actual work force, they're covered as any other employee is. If they're in the program and they're involved in an actual job, they're covered. REPRESENTATIVE KUBINA said the bill makes it clear that people who are on the job training are covered. Number 1518 REPRESENTATIVE HUDSON said, "This is conjuring up an awful lot of memories of similar discussions on this workers' compensation from the past and the false statement by the employee. By beefing this up here I think you may be hopefully reaching into an awful lot of employees, for example, in the timber industry. I remember some years back when folks would tell me that there is an awful lot of what they called `gypo timber operators' that would come up from the Lower 48 and get involved in the trees, hire up a bunch of people, destroy their back and their lungs and God knows everything else, and then those people would leave there, knowing that they're just about ready for workers' compensation, switch to another employer and would go right on it. So what you've done here is, at any rate, it looks like to me you've beefed up that provision. It should make it tougher for employees, at any rate, to move knowing that they've got this injury than they have in the past. So somebody may have some additional costs because they're is going to be some additional medical examinations and there is going to have to be somebody that is going to be monitoring or investigating these kinds of things, but apparently not." MR. GROSSI explained it would give the employer the right to get that information. Now whether they use it or not, that's up to them. He noted that particular section of statute has been in existence since 1988. It would conform with provisions in the ADA. Number 1625 REPRESENTATIVE COWDERY made a motion to move HB 214 out of committee with the accompanying zero fiscal note and individual recommendations. CHAIRMAN ROKEBERG asked if there was an objection. Hearing none, HB 214 moved out of the House Labor and Commerce Standing Committee. CHAIRMAN ROKEBERG called for an at-ease at 3:50 p.m. He called the meeting back to order at 3:55 p.m.
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