Webinar 5/13 | Challenges for EMS Employers in a Time of Legalized Marijuana

Canna-Business Decisions: Challenges for EMS Employers in a Time of Legalized Marijuana

Regular Price: $250.00 | Member Price: $0.00
May 13, 2021 | 14:00 | Free to Members

Speakers: Scott Moore, Esq. & Margaret Keavney, Esq.

There has been a wave across the U.S. of legislation that has legalized medicinal and recreational marijuana. This wave has caused considerable challenges for EMS employers given the nature of the work performed by the EMS workforce. In many instances, the state law prohibits an employer from discriminating or taking other disciplinary action against workers for their off-duty marijuana use. Many EMS employers are federal contractors or grantees and must abide by the Drug Free Workplace Act of 1988. However, due to the newness of legalized marijuana, the application of the state and federal law has not played out in the courts allowing employers to understand how to ensure compliance with laws that appear to contradict each other. EMS attorneys, Margaret Keavney of Keavney & Streger, LLC and Scott Moore, AAA HR and Operations Consultant will host a point-counterpoint town meeting where they will discuss the intersection of current law and will provide recommendations for EMS leaders to ensure that they are providing a safe working environment for both employees and patients.

Register Now

EMS Industry Targeted in Program Implemented by OSHA to Protect Employees from COVID

One of the first actions taken by the Biden Administration the day after the Inauguration was to issue an Executive Order directing OSHA to focus their efforts on protecting the American workforce. Following that Executive Order, OSHA has implemented a National Emphasis Program (NEP) to ensure that employees in high-hazard industries, including EMS providers, are protected from contracting COVID-19. The NEP is intended to augment OSHA’s educational and enforcement efforts with unprogrammed, COVID-19 related activities, including complaints, referrals, and severe incident reports. The March 12, 2021 announcement also states that it is updating the Interim Enforcement Response Plan to prioritize on-site workplace inspections. The NEP also includes plans to ensure that workers are protected from retaliation. Lastly, states that have an OSHA-approved state-level plan, have 60 days to notify OSHA if they already have the equivalent to an NEP plan or will adopt the federal plan.

What does this mean for EMS providers? 

This should serve as an alert to EMS agencies that they should revisit their safety and risk programs, including their Respiratory Protection Programs, to ensure that they are prepared for a visit from OSHA.

Respiratory Protection Programs

At many EMS agencies, this is part of the bloodborne and airborne protection policies that have been in place for decades.  I caution agencies to review their existing plan against OSHA’s Respiratory Protection Regulations.  Under the regulations, all individuals who are mandated to wear an N95 or other respirator must complete a medical questionnaire that is reviewed by a physician or other healthcare provider prior to the employee having to donning the mask while working.

The regulation provides elements of a Respiratory Protection Program that includes identifying a Respiratory Program Administrator (RPA) that is designated by a Medical Director who will be responsible for developing, maintaining, and ensuring compliance with policies, procedures, and practices relative to the selection, storage, use, and maintenance of respirators.  Additionally, the RPA is responsible for conducting or coordinating all training, fit testing, and recordkeeping required by the regulations.

OSHA has published a Small Entity Compliance Guide for the Respiratory Protection Standard.  This is a 124-page document that outlines the Respiratory Protection Standards and provides sample templates and checklists that can be utilized by employers to assist with compliance.  Like with patient care documentation, be sure that your Respiratory Protection Program documentation is sufficiently detailed and includes:

  • A written copy of all current, and past Respiratory Protection Program documentation (P&Ps, etc.)
  • The name of all current and past RPAs
  • All medical determinations (Fit Testing Medical Questionnaire reviewed by MD)
  • All Fit Testing records
  • All Respiratory Protection Program training records
  • Personal Protection Equipment Hazard Assessments
  • All Risk Assessments post employee exposure (Unprotected Exposure Investigation Forms)
  • All exposure control records
  • Documentation demonstrating the method utilized to communicate safety related information to employees.

What do I do if I receive a call from OSHA?

It is unnerving to receive a phone call from a local, state, or federal oversight agency.  However, contact from an oversight agency does not always mean that they have received a complaint.  All U.S. Department of Labor agencies perform outreach in the various regions to educate and engage employers and different industry groups.

That being said, the U.S. DOL is a busy agency, especially during the pandemic.  Most likely, if your organization is being contacted by OSHA, it is due to a complaint, referral, or data targeting run.  The first two are self-explanatory.  A data targeting run is the identification of a specific employer through analysis of data submitted to the agency.  This is typically information such as electronically submitted workplace injury and illness data.

If you receive a call from OSHA, my recommendation is to listen more than you speak. Take copious notes and document the conversation immediately following the call.  The OSHA representative will tell you why they are calling and will likely request various documents or other evidence be sent to their office. Do not expect that they will tell you who complained, and I would not ask.  My suggestion, request that the representative email or fax over a letter identifying the representative, the documents or other information they are seeking, the date that you must furnish the information, and the method upon which they want the information sent.

You may not have firsthand knowledge of the issue or incident that led to the complaint to OSHA. That is okay. You can tell the representative that you and your team will investigate and/or compile the requested information following the call and respond. The investigator does not expect that you will necessarily have all the answers at the time of the call. You should be courteous and responsive but remember that a response that is carefully considered and crafted is likely to lead to the best result.  Do not wing it!  Lastly, no matter whether you know who complained or not, do not take any action that can be viewed as retaliatory against employees.

What do I do if an OSHA Investigator appears at my workplace?

Generally speaking, an OSHA Investigator will not just appear in your workplace.  Not to say that they cannot.  They certainly can.  If an OSHA Investigator comes to your workplace you do have certain rights, but so does OSHA.  OSHA has the right to arrive unannounced, gain access to the workplace without significant delay, and question employees privately.  They will show you their OSHA credentials and you should ask for a business card.

An employer has the right to demand to see an inspection warrant.  This is the document that is the basis for OSHA’s probable cause for the inspection.  However, I do not recommend demanding the inspection warrant.  This will most certainly put you and the OSHA investigator in an adversarial position.  As they say, this can go one of two ways, hard or less hard.

An employer has the right to an opening conference. Many important things can happen during the opening conference. First, you can learn the nature of the complaint and related investigation and attempt keep the scope of the investigation as narrow as possible. Next, you can establish the probable cause for the visit and learn their plans for the investigation.  This will likely include a worksite “walking around” inspection, interviews, document review, etc.  You can better prepare once you know what to expect.

An employer has the right to accompany the OSHA Investigator during their site inspection.  I recommend taking photos of anything that the investigator documents or inspects and documenting physical evidence or documents that they take during the inspection.  You may also ask the investigator for a log of any evidence taken.  Lastly, you should know that the investigator has the right to interview your employees privately.  However, you have the right to be present during any management interview.

Bottom line, you should cooperate with the investigator. They are people too and generally want to help employers be complaint with the law.  They are not looking to find violations. They are looking to ensure compliance and protect workers. From my time working at the U.S. DOL, I can attest that we appreciated cooperative and friendly employers who know the law and can quickly provide the information or documents we are seeking.  The quicker and more responsive I found an employer to be, the greater likelihood my index of suspicion reduced, and that the employer was following the law.


OHSA has identified that the NEP will be in place for the next twelve (12) months.  NEP plans are intended to be temporary but can be extended if the pandemic continues past the anniversary of the plan.   While there were numerous industries listed in the OSHA notice, ambulance service providers were specifically identified as one of the high-risk industries that would be the focus of this new program.

If your service has questions or needs assistance with ensuring that your organization is compliant, be sure to contact hello@ambulance.org for assistance.

Webinar 5/13 | Challenges for EMS Employers in a Time of Legalized Marijuana

Canna-Business Decisions: Challenges for EMS Employers in a Time of Legalized Marijuana

Regular Price: $250.00 | Member Price: $0.00
May 13, 2021 | 14:00 | Free to Members

Speakers: Scott Moore, Esq. & Margaret Keavney, Esq.

There has been a wave across the U.S. of legislation that has legalized medicinal and recreational marijuana. This wave has caused considerable challenges for EMS employers given the nature of the work performed by the EMS workforce. In many instances, the state law prohibits an employer from discriminating or taking other disciplinary action against workers for their off-duty marijuana use. Many EMS employers are federal contractors or grantees and must abide by the Drug Free Workplace Act of 1988. However, due to the newness of legalized marijuana, the application of the state and federal law has not played out in the courts allowing employers to understand how to ensure compliance with laws that appear to contradict each other. EMS attorneys, Margaret Keavney of Keavney & Streger, LLC and Scott Moore, AAA HR and Operations Consultant will host a point-counterpoint town meeting where they will discuss the intersection of current law and will provide recommendations for EMS leaders to ensure that they are providing a safe working environment for both employees and patients.

Register Now

NYC emergency medical workers prepare for layoffs

From NBC News

The head of New York City’s emergency medical services union said Wednesday that the city is preparing to lay off hundreds of its members as the budget crisis grows during the coronavirus pandemic.

Oren Barzilay, president of FDNY EMS Local 257, blamed Mayor Bill de Blasio and his administration for the expected fallout.

Continue reading►

Cleveland EMS crews win PTSD coverage, $3.7M in back pay

From Cleveland 19 News on July 13, 2020

CLEVELAND, Ohio (WOIO) – A fight for Post Traumatic Stress Disorder coverage years in the making has ended with a win for Cleveland paramedics, EMTs and dispatchers.

A union contract for Cleveland EMS just passed, under an agreement out of court that still needs to be ratified by city council.

The agreement includes about $3.7 million in back pay for employees and mental health language, addressing PTSD.

CARE has been negotiating their contract since March of 2016.

Continue reading►

OSHA: Facial Coverings and Returning to Work

The Occupational Health and Safety Administration (OSHA) released an update to their COVID-19 Frequently Asked Questions (FAQs) regarding facial coverings as many work place begin to return workers to the office.  For most of our member companies, they are well aware of the guidelines issued by OSHA regarding the use of Respirators such as the N95.  However, as many EMS agencies begin to return employers to the office, OSHA has released guidance regarding the use of cloth face coverings, surgical masks, and respirators.  Under OSHA, employers are required to provide a safe workplace under the General Duty Clause.  This includes ensuring that employees are wearing facial coverings and maintaining social distancing when in the office environment.  The newly updated FAQs provides the latest recommendations for employers regarding the best practices with regard to facial coverings.

As always, member companies can reach out to the AAA and its consultants for assistance with any human resources or compliance questions.

Financial Relief for Personnel

Financial Relief for Personnel

Download as a PDF

Families First Coronavirus Response Act (FFCRA)

• Emergency Paid Family & Medical Leave
• Emergency Paid Sick Leave

Tax Assistance Options

• Extension of 2019 Tax Filing Deadline
• $1,200 checks to each individual making $75,000 or less and a sliding scale (downwards) for people
making between $75,000 and $99,000. No one making more than that will get a check

Unemployment Assistance

• Waiver of waiting period
• Waiver of work search requirement
• Unemployment benefits would be expanded from 26 weeks to 39 weeks and freelancers and gig workers would qualify for the first time

Federal School Loan Assistance (US Dept of Education)

• Interest rates on student loans reduced to 0% from 3/13/2020 to 9/30/2020
• Direct Loans
• Federal Family Education Loan (FFEL) Program Loans
• Federal Perkins Loans
• Lender should have information regarding deferral on their website
• Borrower can get a refund if they paid their monthly payment after President signed the CARES Act

Mortgage or Rent Relief (Consumer Financial Protection Bureau)

• FHA/HUD mortgages
• Fannie Mae/Freddie Mac
• Lender or loan servicer may not foreclose on you for 60 days after March 18, 2020
– You won’t incur late fees
– You won’t have delinquencies reported to credit reporting companies
– Foreclosure and other legal proceedings will be suspended
• If you can pay, pay
• If you can’t pay, contact your mortgage servicer
• Get it in writing
• Many states and municipalities have prohibited eviction activities in the next 60 days
• Any HUD/FHA back multifamily rental properties

Credit Card & Utilities Relief

• If you can continue to pay, pay
• Many credit card companies have options to enroll online for delayed payments
• Many cell phone and utility providers are offering waivers of late fees and deferred payments
Health Savings Accounts, Health Reimbursement Accounts, Flexible Spending Accounts
• Retroactively effective as of January 1, 2020, the CARES Act allows participants to now purchase the
following items and services, pre-tax, using their HSA, FSA, or HRA
– Over-the-counter medicines (these treatments no longer require a prescription)
– Menstrual care products (e.g., pads, tampons, liners, and related items)
– Telehealth services, pre-deductible without impacting HSA eligibility (provision in place until December 31, 2021)

Relief Related to Retirement Plans for Individuals

• Waiver of 10% Early Withdrawal Penalty Tax on Early Distributions from Eligible Retirement Plans
– The Act waives the 10% penalty tax on early distributions for distributions up to $100,000 in
2020 made to an individual
– Who is diagnosed with COVID-19,
– Whose spouse or dependent is so diagnosed or
– Who experiences adverse financial consequences as a result of being quarantined, furloughed, laid
off, having work hours reduced due to the virus, or closing or reducing hours of a business owned
or operated by the individual due to the virus

Wellness Benefits

• Health Plan Co-Pay & Deductible Waivers
– Waiver of co-pays and deductibles for testing and diagnosis of COVID-19
• Short Term & Long-Term Disability Insurance
– Your illness may qualify as a compensable illness under many short-term and long-term disability
insurance plans
• Mental Health Benefits
– All employer-sponsored health plans cannot restrict benefit maximums at a level under that which
is provided for other health benefits
– Employee Assistance Programs


FFCRA EMS Emergency Paid Leave Toolkit

FFCRA EMS Emergency Paid Leave Toolkit

This toolkit is intended for use by EMS organizations to facilitate the implementation and management of
the emergency paid leave provided under the Families First Coronavirus Response Act (FFCRA). The individual forms included in the toolkit are templated, and members are encouraged to add their own logo.

Individual Forms:



Supreme Court Overturns 1977 Union Dues Ruling

Yesterday, the United States Supreme Court issued a ruling in a case that many municipal employers and labor unions have been anxiously awaiting because it may change the power of organized labor in this country.  The ruling in Janus v. American Federation of State, County, and Municipal Employees, (AFSCME), overturned a 1977 decision that required governmental employees who chose not to join the union to pay union dues.  The plaintiff in this case was a teacher who argued that the union takes political positions and contributes to political causes that are often contrary to his own personal beliefs and that requiring he financially support those causes violates his right to free speech under the Constitution.  The union argued that it is unfair for non-union employees benefit from the collective bargaining effort of dues paying union members and that this ruling will give those employees a “free ride”.  In the opinion, drafted by Justice Alito, said that the majority “conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”  This decision will likely impact the level of union membership in this country, which is currently at about 10.7% of the American workforce.

Can Public Sector Employees Be Forced to Pay Union Dues?

The United State Supreme Court heard oral arguments on February 26, 2018 in a case that could dramatically change the face of unions and public employment in this country.  Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME) puts at issue whether public sector employees can be forced to pay union dues as a condition of employment.  Proponents of mandatory union dues payments state that this prevents some employees from reaping the benefits of collective bargaining and union representation without paying their fair share.  Opponents feel that it is inherently unfair to require an employee to pay union dues if they do not agree with union representation or what the union stands for.  An article published today, Justices Appear Slit on Mandatory Union Fees, by the Society for Human Resources Management (SHRM) does a nice job covering the recent case law regarding mandatory union dues and an analysis of how the U.S. Supreme Court might rule on this case.  For those AAA members who are governmental entities, the outcome of this case could have a substantial impact on your agency and its people, employees and management.  We will continue to monitor the developments in this case and will keep members informed.  As always, the AAA is always monitoring the political and legal landscape to watch for issues that may impact our profession, industry, and our organizations.

EMS Employer Year-End Wrap-Up and Preview

2017 was a bit of a wild ride in the employment realm.  The Trump Administration worked to change the trajectory set during the eight years of the Obama Administration.  This past year, we saw the undoing or attempts to undo many of the Obama Administration initiatives, including the Fair Labor Standards Act (FLSA) updates, changes to the Persuader Rule, interpretations of Title VII as it relates to transgender protections.  Not to mention the repeated attempts to chip away at the Affordable Care Act (ACA). In addition, there were several new requirements for employers that went into effect in 2017 and a few upcoming in 2018.  Here is a quick review to ensure that your service is up-to-date and compliant.

The Fair Labor Standards Act Changes

These changes, which would have more than doubled the minimum salary levels for those “White Collar” exemptions, were set to go into effect back in 2016.  A Federal Court in Texas enjoined and put on hold these changes until the question of whether the Department of Labor (DOL) had the authority to unilaterally change the Regulations.  In July, 2016, the DOL published an Request For Information (RFI) with responses due in late September, requesting input from stakeholders about what changes to the FLSA might be appropriate.  We are still awaiting the final action.

The Persuader Rule

In 2016, the DOL Office of Labor-Management Standards (OLMS) released its revised interpretation of the rule that seeks to level the playing field between unions and employers.  The new interpretation of the Persuader Rule, which would have taken effect on April 25, 2016, would have required that employers who hire consultants or labor attorneys to counsel them during union organizing campaigns to report if they will undertake “persuader” activities and the cost of those services.  This rule was an attempt to increase transparency for unions with regard to these services. The U.S. District Court for the Northern District of Texas blocked the persuader rule late last year stating it was overly broad, arbitrary and capricious. The DOL published a notice of public rule making in June, 2017 of its intent to rescind the new rule.

Dismantling of the ACA

In a surprising announcement this past October, the Trump Administration, the DOL, the Department of Health and Human Services (HHS) released an interim rule that rolled back the Obama Administration position regarding the requirement of employer sponsored health plans to pay for “preventative services” which included birth control and abortion procedures under religious or moral objections. This would permit employers who object on these grounds to limit or not offer these coverages under their employer sponsored health plan.  There are several lawsuits pending regarding this move, more to come in 2018.

In another October announcement, the Trump Administration stated that the President had signed an Executive Order that directed the Secretary of Labor to consider expanding access to Association Health Plans (AHP) would give employers the right to form groups in multiple states for the purposes of negotiating health care benefits.  This change would require a amenedment to the current interpretation of Employee Retirement Security Act (ERISA). In addition, the Executive Order directed the Departments of the Treasury, Labor, and Health and Human Services to consider changing several ACA restrictions, including low-cost short term limited duration insurance (STDLI) and Health Reimbursement Accounts (HRAs).  The impact of this Executive Order may be an impact to the ACA insurance markets because it may attract the younger and healthier away from current plan groups causing those coverage costs to increase substantially.

Title VII Transgender Protections

In October, Attorney General Jeff Sessions published memo to Federal prosecutors stating that Title VII’s discrimination protections did not include protections on the basis of gender identity or for transgender individuals.  In the memo, Sessions states that this was a conclusion of law, not of policy and that it would be inappropriate for the DOJ to expand the law beyond what Congress provided.  Sessions said that the law provides protections for men and women but not specifically on the basis of gender identity. This goes against current interpretation and is not shared by the Equal Employment Opportunity Commission (EEOC) who enforces Title VII.  Employers need to ensure that they provide a workplace that is inclusive and respectful to all employees.

EEO-1 Pay Reporting

In February 2016, the EEOC published notice that would add pay information to the EEO-1 reporting form in an effort to further identify disparities in pay between different protected groups.  This new reporting requirement was set to go into effect on September 30, 2017. The deadline was pushed back until March 31, 2018.  Under the new pay reporting requirements, employers with 100 or more employees would report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within the 12 proposed pay bands.  In August, the Office of Management and Budget (OMB) announced plans to stay the effective date of the pay-data collection provisions in order to review the appropriateness of the revisions under the Paperwork Reduction Act (PRA).  In the meantime, employers should still observe the March 1, 2018 deadline and prepare the information on the new EEO-1 Form while we await a decision on if this requirement will go into effect.

OSHA Electronic Injury Reporting

OSHA announced in July that it will be launching the new electronic Injury Tracking Application (ITA) on August 1, 2017.  The new rules are an effort to “nudge” employers to improve safety in the workplace by publishing employee injury data, as reported by employers.  OSHA pushed back the electronic reporting deadline until December 15, 2017.  Many ambulance services already report this information electronically to the Bureau of Labor Statistics (BLS), who collects data on behalf of the Department of Labor but the employer specific information is not released publicly.  Under these new rules, employer injury data will be published.

The electronic reporting requirements are based on the size of employer.  For the purposes of determining employer size, employers must count each individual employed at any time during the calendar year as one employee.  This includes full-time, part-time, seasonal, and temporary workers.  All employers with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301.  Employers with 20-249 employees must electronically submit information from OSHA Form 300A only.

If you have not already submitted your data, you need to do so immediately.

New Form I9

Starting this past January 22, 2017, employers were required to begin using the new Form I9.  The old Form I9 expired on August 31, 2017.  The new form can be found on the US Citizenship and Immigration Services (USCIS) website.  To be certain that you are utilizing the correct form, ensure the expiration date of August 31, 2019 is in the top right hand corner of the form. Last year, several ambulance services were audited by the USCIS and fined for technical form violations.  The easiest way to ensure that you are using the correct form and filling it out correctly is to utilize the comprehensive online training resources available on the USCIS website.

Summary of State Law Changes

Ban the Box

Currently 29 states and over 150 local municipalities have enacted criminal background inquiry limitations in an effort to give individuals with criminal histories a fair chance to become employed.  Several of the states that had already enacted these laws have passed additional provisions in 2017 and 2018 that expand the application to smaller employers.

Most of the laws regarding the “ban the box” movement require the removal of criminal history inquiries on the job application.  Others require that no criminal history inquiries can be made until after a conditional job offer is made to the candidate.  If you have not done so already, please remove any criminal history questions from your pre-offer process.  For those ambulance providers that are in states that specifically permit EMS agencies from inquiring prior to a job offer, I strongly recommend that any criminal history inquiries occur after a conditional job offer is made.  State laws permissions do not prevent an employer from being liable for disparate impact discrimination.

Paid Sick Time

Multiple states (AZ, CA, CT, MA, OR, VT, DC) and municipalities already have or have enacted paid sick time laws or ordinances prior to this year.  Joining them in 2017 are Federal Contractors and the states of Arizona, Vermont, and Washington.  Each of these laws share similar provisions.  Employees earn an hour of paid sick leave after having worked a certain number of hours.  Most provide for a 90 day period of employment before an employee can utilize the accrued sick time. For the purposes of calculating working hours, the hours are counted across weeks.  Most of the laws provide for some carry-over of unused time from year to year.

Several other states have enacted or will be expanding existing paid sick time provisions which will take effect in 2018. (CA, RI, WA, VT).  The state of Oregon passed an amendment to the paid sick time law that was enacted in 2016 that permits employers to limit the accrual of sick time to 40 hours per year. In addition, the amendment permit employers to not count certain individuals in the employee count for the purposes of the application of this law.

Parental Leave

California has enacted the New Parent Leave Act which takes effect on January 1, 2018.  The Act requires employers with 20 to 49 workers to offer 12 weeks of job-protected leave to mothers and fathers for the purposes of bonding with newborn or newly adopted children, or foster care placement. The employer also must maintain the employees’ health insurance and reinstate them at the end of their leave period. The law includes a strong anti-retaliation provision for employees who take leave under this law.

Paid Family Medical Leave

Currently three states (CA, NJ, RI) provide for some form of paid Family & Medical Leave.  Starting on January 1, 2018 private employers in New York must provide their employees who regularly work at least 20 hours a week the eligibility to collect paid-family-leave benefits after 26 weeks of employment, and employees who work fewer than 20 hours a week will be eligible after 175 work days. The leave can be used to after the birth, adoption, or placement of a foster child for up to one year.  Additionally, the leave can be used to care for the serious illness of a family member or a qualifying reason an employees’ spouse, domestic partner, child, or parent being on active military duty.

The Act will be phased in over the next few years.  Providing 8 weeks of leave in 2018 paid at 50% os the state’s average weekly was (SAWW).  In 2019, the leave time extends to 10 weeks at 55% of SAWW, 2020 maintains 10 weeks of leave paid at 60% of SAWW, to full implementation in 2021 when an employee can take up to 12 weeks of leave paid at 67% SAWW.

The State of Washington has passed a paid FMLA law that will start collecting premiums from employers in 2019 for enactment in 2020.  Washington DC also enacted paid FMLA that will begin in 2020 as well.


Starting in 2018, the State of California will require that employers with 50 or more employees include additional training information fo its employees on gender identity, gender expression and sexual orientation. The training must include practical examples of harassment. The new law also requires employers to post a poster, developed by the California Department of Fair Employment and Housing, on transgender rights.  In addition, the currently mandated two hour supervisor training must also include this new information and provide for annual updates to training programs.

That’s a Wrap

For many employers 2017 proved to be an unusual and challenging year. Aside from the changes details above, it is uncertain what lies on the horizon for EMS employers in 2018. As always, the American Ambulance Association will keep you posted on the important employment and human resources developments that may impact you.

SHRM: 65% of EEOC Cases Resolved Without Cause

If you ask most healthcare attorneys the best way for healthcare providers to avoid being sued is to listen to their patient, communicate clearly, and most importantly, be nice. The same can be said for employment related legal actions.  In a great article released by the Society of Human Resource Management (SHRM), suggests that over 65% of the cases filed with the Equal Employment Opportunity Commission (EEOC) were found to be resolved without “reasonable cause”. Just like with the provision of healthcare, employers can often avoid time consuming and costly employment litigation by making sure that the leadership and management team communicates clearly to employees about performance expectations, listens to employee concerns or feedback, and possibly most importantly, treats their employees nicely regardless of the message they are delivering. The employment relationship is just like any other human relationship. Those where there is mutual respect and appreciation yield the richest experience.

OSHA Faces Further Delays in Electronic Reporting Rules

This past May, the AAA published an Advisory to members alerting them of the new OSHA electronic injury reporting requirements for employers that were set to start this past August.  According to OSHA’s announcement, the rule was intended to “Improve Tracking of Workplace Injuries and Illnesses”.  The new rules provided that certain employers would have to electronically submit their 300 or 300A employer injury data to OSHA.  OSHA stated that it would post the data on it’s website as a mechanism to “nudge” employers to provide the safest workplaces that they can.

These new rules also included anti-retaliation provisions required that employers have reasonable procedures for employees to report injuries.  They also provided that employers could not have any practices or procedures that would discourage employees from reporting injuries.  The United States Department of Labor (USDOL) announced last June that they would be delaying the implementation of the anti-retaliation requirements until November 1, 2016 because they wanted to have more time to “perform education and outreach.”  Those provisions were further delayed but went into effect this past December.

With the July deadline looming for electronic submission, there was little indication that OSHA had developed the electronic submission portal for employers to utilize in submitting their 300A or 300 injury information.  Last week, OSHA announced , by updating their website that it would delay the electronic injury reporting and did not indicate a possible implementation date.  There are several lawsuits on behalf of employer groups that are alleging that employers could be unintentionally harmed by the public disclosure of work injury information.  There is speculation that OSHA is awaiting the outcome of those legal actions or that the change of administrations has refocused OSHA’s efforts elsewhere.

The AAA will continue to monitor the agency’s website and will notify members if there is an update on this or any other regulatory issue.

Overtime for PTO Bill Passes the House

Yesterday a bill that would possible amend the overtime provisions of the Fair Labor Standards Act passed the House. H.R. 1180, titled the Working Families Flexibility Act of 2017 was introduced by Alabama Representative Martha Roby this past February.

The proposed change would permit private employers who currently pay employees overtime for hours worked over 40 during a given week to substitute that overtime pay for compensatory paid time off in the amount of 1.5 hours for each hour of overtime worked. In order to do so, the employee would have to agree in writing with the substitution of PTO for overtime pay prior to working the overtime hours. The agreement must provide that the employee knowingly and voluntarily agrees to the substitution of PTO for overtime pay. In the case of unionized companies, the substitution can only be made if provided under the collective bargaining agreement.
To be eligible to substitute PTO for overtime pay, the employee must have worked for the employer for at least 1000 hours during the preceding uninterrupted 12 month period before the agreement is made or the receipt of the compensatory PTO. The Bill provides for limitations to the number of hours that can be accrued and the length of time it can be carried.

An employee may accrue not more than 160 hours of compensatory time. Any unused compensatory time accrued under this provision by the end of a calendar year would have to be paid to the employee no later than January 31st of the following year. An employer may designate and communicate to the employees a 12-month period other than the calendar year. However, any unused compensatory time must be paid not later than 31 days after the end of such 12-month period.

When employers are paying the unused compensatory PTO, the pay shall be paid at a rate of not less than the regular rate earned by such employee when the compensatory time was accrued or the regular rate earned by such employee at the time such employee received payment of such compensation, whichever is higher. This could mean that the employee is receiving pay at a rate higher than it would have been had the employer simply paid the overtime at the time it was incurred.

The Bill provides for some flexibility with when it pays the compensatory PTO. An employer may pay monetary compensation to the employee for accrued hours in excess of 80 hours provided it gives the employee 30 day notice. In this case, the wages would need to be paid consistent with the manner described above. However, if an employee voluntarily or involuntarily terminates employment, the employer must pay all accrued compensatory PTO to the employee.

Under the Bill, an employer who has adopted the policy of paying compensatory time instead of paying overtime wages may discontinue the practice upon 30 days written notice to the employees. Conversely, an employee may rescind their agreement to be paid compensatory PTO at any time. In such instances, the employer must pay all unused PTO accrued under the agreement within 30 days.

The Bill language contains significant provisions to protect the employee from employer threats or coercion to agree or not agree to the adoptions of compensatory PTO or to the use or failure to use such compensatory time. The Bill requires that the employee enter the agreement voluntarily and that they can essentially use the compensatory PTO or the corresponding pay in any manner that they choose. If passed, the Department of Labor will have to issue regulations that more specifically guide this practice.

While this Bill still may not get the votes it needs in the Senate (S. 801), employers should consider how adopting such a policy may impact their organizations. From a cash flow perspective, this could provide some flexibility during the year. However, the monies must be paid to the employee at the end of the 12 month period. Often employers who already have a practice of paying out unused PTO or vacation time at the end of a year struggle with the significant expense coming due. This is particularly difficult if it occurs at the end or beginning of the calendar year as there are usually additional expenses during the holidays and reductions in cash receipts during January and February for many ambulance providers.

For employees, this Bill could be a mechanism for accruing time in excess of any existing vacation, sick, or paid time of benefits that could be used for unexpected absences or for significant illnesses. Often, our employee are not financially prepared for the wages lost when they are sick or injured and do not have enough sick time to cover the absences. However, many have come to rely on the weekly payment of regularly worked overtime to cover their life expenses. Either way, it may give our employees something that they always love, the ability to choose.
We will continue to monitor the progress of this bill over the next few months and will keep members up to date. If our members have questions about this or any other Human Resource or Operational practices or issues, utilize the resources available to you as part of your AAA membership.

New I-9 Form Required

New Form I9 Effective January 22, 2017

All employers are required to begin using the new Form I9 starting on January 22, 2017. The new form can be found on the US Citizenship and Immigration Services (USCIS) website. To ensure that you are utilizing the correct form, an expiration date of August 31, 2019 is in the top right hand corner of the form.

Last year we were aware of several ambulance providers who were the subject of Form I9 audits by the USCIS which resulted in technical violations for failing to complete the form correctly. The Form I9 is the document all U.S. employers are required to have completed when hiring a new employee to assure that they are legally eligible to work in the United States. While there has been a reduction in Form I9 Audits from USCIS in 2015, employers should be prepared as the five year trend is on the rise and I am aware of several ambulance providers currently dealing with audits.

The Law

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to examine documentation from each newly hired employee to prove his or her identity and eligibility to work in the United States. The IRCA led to the Form I-9 Employment Eligibility Verification, which requires employees to attest to their work eligibility, and employers to certify that the individual presented documents to the employer that appeared to for the individual and genuine. The form has very specific rules regarding when the certain section of the form must be completed, which documents the employee can proffer as proof of eligibility, and how information must be present in the different sections of the Form I9.

While most employers understand that they must obtain certain information from every newly hired employee, they are often not aware of the specific dates upon which the different sections of this form must be completed. This is where the greatest number of compliance issues arise.

The Form’s Timing

Section 1 of Form I9 is the Employee Information and Attestation section and must be completed by the employee by the close of business on the employee’s first day of employment. This section consists several mandatory fields of the personal information of the new employee and two optional fields. It includes the employee’s full name, date of birth, address, and social security number, email address (optional), telephone number (optional).  In addition, the employee must attest that they are a citizen of United States, a Non-Citizen National, a Lawful Permanent Resident, or an Alien Authorized to Work in the US. The employee must provide an Alien Registration Number or USCIS Number if they check that they are a lawful permanent resident. If they are an Alien Authorized to Work, they must provide the date their authorization expires and their Alien Registration Number. The employee must sign the document and date it. If there is a translator or preparer, they must complete the certification at the end of Section 1.

Section 2 is the Employer or Authorized Representative Review and Verification section and must be completed by the close of business on the third day of employment. This section is where many make a very simple error. First, there is a place at the top of this section where the employer must list the employee’s full name. This frequently gets left blank. Next, the employer must identify the document(s) that the employee is presenting as proof of identity and employment authorization. In Column A, there is a list of acceptable documents, typically a Passport, Permanent Resident Card, or Employment Authorization Document. One or more of these documents can be sufficient. Alternatively, the employee can present one document from each List B and C. These are typically a driver’s license and a birth certificate. These documents don’t have to be copied, but if they are, they must be kept with the Form I9.

It is critical that the employer complete the Certification section of Section 2. This is another area where employers frequently make mistakes. In the Certification, there is a section to mark the date of the employee’s first day of employment. I often find this section blank or find that the employer mistakenly enters the date that they viewed the employee’s documents. The employer needs to complete the Certification section and date it, entering the employer’s business name and address. Failure to complete any of these sections can lead to a Substantive or Technical Violation and fines.

Section 3 of the Form I9 is completed by the employer when re-verifying that an employee is authorized to work or when rehiring an employee within three years of the date on the original Form I9. It is important that employer develop a mechanism for identifying and ensuring any expiring document(s) that requires re-verification. Of course, an employer can always complete a new Form I9 for a returning employee.


Title 8 of the Code of Federal Regulations Section 27a.10 established a fine range from $110 to $1,100 per violation.  Fines can be for either a Technical violation, one where an employer fails to ensure that the employee provided all of the personal information, name, DOB, address, etc. or a Substantive violation, where the employer fails to review and verify the required documents or when someone is working without authorization.  These fines can be issued for each individual violation and can be substantial.

Other common errors that carry fines include not documenting the title of the document that the employee presented as proof (example, US Passport, State Driver’s License and Social Security Card).  Not initialing corrections made to the form when corrections are necessary.  Not re-verifying those work authorization documents that require re-verification.


All of the fines are avoidable by ensuring that you clean up the Form I9 process within your organization. First, services should ensure that only individuals trained and knowledgeable in completing the Form I9 are involved in this process. For training, the USCIS provides great Form I9 training for free on their website. In addition, USCIS has great instructions that accompany the Form I9 and provide for video instruction on their website.  Following these instructions carefully will be the best guarantee that you will complete the form correctly.

In addition, every ambulance service should conduct an audit of their Form I9 processes within their organization. I would have one individual, who is knowledgeable about the rules, conduct a review of all Form I9s for current employees and for any employees who were terminated within the last five years. Under the Regulations, employers can purge any Form I9 documents for employees who are terminated after one year from termination or three years after the date of hire, whichever date is later. However, employers should have Form I9 documents on all employees who are currently on your payroll.

For purposes of record keeping, it is best to keep all Form I9s in one location so that they can be easily provided in the event of an audit. Employers are not required to make copies of the documents an employee provides to the employer as proof of authorization. However, if the employer does copy the documents, they should be kept with the Form I9. I recommend employers make copies of those documents, store them with the Form I9, and be kept in a secure location. If those documents are stored electronically, it is critical that there are sufficient systems in place to ensure the integrity and security of the documents including an electronic audit trail.

Many employers utilize e-Verify, the online system hosted by the USCIS in partnership with Social Security Administration (SSA) that allows employers to search the linked federal databases to ensure that employees are eligible to work in the US and verifies the employee’s Social Security Number. e-Verify is free to employers and is voluntary throughout the country. However, you should check you state law as many states have passed legislation requiring the use of e-Verify. It is easy to enroll and is a necessary part of any I9 compliance plan.

I can tell you that all of the providers that I have questioned about this issue assured me that they have adequate processes in place to ensure compliance. However, after we discussed the timing and information required for the different sections of the Form I9 that were identified in many of the audits I am aware of, it quickly became apparent that most did not really have safeguards in place.

Have an HR Question?  Ask Scott!

HR Wrap-Up: A Look Back at 2016

As we wind up 2016 I thought it would be a good idea to review the year’s human resource and legal developments to ensure that our members are compliant and prepared for what faces them in 2017.  We knew that this was going to be an interesting year as we experienced the most unusual Presidential Election in our history.  It overshadowed everything else that occurred in 2016.  As the Obama administration comes to its final days, employers and ambulance providers saw some of the most sweeping regulatory changes.

Fair Labor Standards Act (FLSA)

The biggest change facing employers in 2016 was the Fair Labor Standards Act (FLSA) overtime changes.  The Department of Labor (DOL) issued updated regulations which were to become effective December 1, 2016, raising the minimum salary thresholds for the so called “white collar” exemptions.  Under the new regulations, the minimum salary would increase from $455 to $970 per week.  For those employees earning under the new amount, employers would need to decide if they are going to raise the salary level or pay the employee overtime for hours worked over 40 in one week.  The changes have not gone into effect yet as a 5th Circuit Judge issued an injunction on the implementation of the new Regulations until the question of their legality is determined.

Most employees in the ambulance industry are hourly paid employees and the Regulatory changes are will not affect their overtime eligibility.  However, ambulance providers should take these changes as an opportunity to evaluate each position within their organization and ensure that any exempt position is appropriately classified.

Civil Penalty Changes

This past August the Department Of Labor published two interim final rules that adjusted the penalties for enforcement actions by several of its agencies.  The penalties increased because Congress passed the Federal Civil Penalties Inflation Adjustment Act in 2015 last November with the intent of improving the effectiveness of civil monetary penalties and hopes of maintaining their deterring effect.  Many agency penalties had not been adjusted since 1990.

The new penalties will only be applicable to penalties assessed after August 1, 2016 for violation that occurred after November 2, 2015.  The DOL posted a chart detailing all of the penalty increases.

Posting Changes

Many of the mandated employer postings also experienced a change this year as a result of the FLSA Regulation updates and because of the Civil Penalty increases.  Employers need to be sure to update the required Federal employment postings in their workplaces.  The new postings are available on the Department of Labor’s website free of charge.  Alternatively, many employers purchase the all-in-one combination Federal and State posters from third party vendors.  Whether obtained from the DOL or from a vendor, the postings need to be updated to reflect these new changes.

Fair Labor Standards Act (FLSA)

The required FLSA posting will reflect the change to the classification of employees, requirements for nursing mothers, and updated enforcement section.  The new posting also removes the prior reference to a specific penalty amount as the penalties will adjust at regular intervals under the penalty adjustment changes.

Occupational Health & Safety Act (OSHA)

In May, the AAA published an advisory notifying members about upcoming changes to the reporting requirements under OSHA, including provisions regarding the notification to employees of non-retaliation for those who file work injury or illness claims.  The non-retaliation notice provisions became effective November 1, 2016.  The new OSHA posting reflects the notice to employees regarding the non-retaliation provisions.

Employee Polygraph Protection Act (APPA)

Like the FLSA posting, the Employee Polygraph Protection Act (EPPA) posting has changed to reflect the removal of a specific penalty amount.  The new EPPA posting can be found on the DOL’s website.


One of the more active debates during the end of 2015 and for most of 2016 was an issue not directly related to employers but that had significant impacts on employers was the North Carolina House Bill 2.  HB 2 was sweeping legislation that required restroom and locker room facilities be utilized by individuals based upon the gender listed on their birth certificate.

In May, the Department of Justice filed a Civil Rights suit against the State of North Carolina and its Governor stating that the legislation was “state sanctioned discrimination” and was illegal.  After several legal challenges it appears that the legislation will be repealed by the new North Carolina administration.  Even without the repeal of the legislation employers were on notice that all Federal regulatory agencies included transgender rights as protected under Title VII and subject to the law.

This is notice to employers that they need to allow all employees to utilize the restrooms and changing facilities that are consistent with their gender identity.  The best practice for employers is to provide privacy for all individuals, whether or not they are in a gender specific facility.  This means that restroom and shower facilities should provide as much privacy as possible.  This could include installing privacy strips to restroom stalls, large partitions between urinals, and privacy curtains for showers.  Employers should not assume that individuals born the same gender are comfortable with or do not seek the same privacy in these setting as do individuals of different genders.  The message should be to respect the privacy of all individuals regardless of their gender or gender identity.

Affordable Care Act (ACA) Section 1557 Rules

This past July new Regulations, which implement Section 1557 of the Affordable Care Act (ACA), became effective.  The provisions of Section 1557 build off of existing Title VII and other discrimination laws that extend protections to previously underserved or under-represented groups of people with regard to healthcare.  The new Regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.  In addition, the Regulations provide discrimination protections on the basis of pregnancy, gender identity, and sex stereotyping.  The Final Rule also requires that “covered entities” make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.

The new Regulations require that covered entities have a Compliance Coordinator and a Grievance Procedure.  The Compliance Coordinator is to monitor and coordinate compliance with the provisions of the Final Rule.  The Grievance Procedure has to provide the appropriate due process standards that would allow for the prompt and equitable resolution of complaints concerning actions prohibited by Section 1557.  HHS has included a sample Grievance Procedure in Appendix C to Part 92—Sample Section 1557 of the Affordable Care Act Grievance Procedure  to assist covered entities in meeting this requirement.

In addition, the Regulations require that all covered entities post notices assuring patients that the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability and that auxiliary aides and services for individuals with Limited English Proficiency (LEP) and Communication related disabilities.  To alert these individuals, ambulance providers must post a notice regarding the availability of these aids and services in the top 15 languages spoken in the state of operation.

A Look Ahead to 2017


Starting in 2017, employers will be required to electronically report work related injuries to OSHA.  The AAA posted information about this new requirement last week.  Employers should anticipate increased OSHA investigatory activity following this first year of injury reporting.  Currently, OSHA obtains the majority of their injury data from employee complaints or on site visits.  These new reporting requirements are intended to persuade employers to be more proactive with regard to workplace safety.  As we learn more about the tools OSHA will utilize to collect this information, we will notify members.

EEO-1 Pay Reporting

The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract and Compliance Programs (OFCCP) have approved a new EEO-1 Form that will be used starting with the 2017 report, which will be due on March 31, 2018.  The new report requires private employers, including federal contractors and subcontractors, with 100 or more employees to submit summary pay data on the EEO-1 Form.  Federal contractors and subcontractors with 50-99 employees will not submit summary pay data but will continue to report demographic data (sex and race or ethnicity) on the EEO-1 as they did before.  Also, Federal contractors and subcontractors with 49 or fewer employees, and companies without federal contracts with 99 or fewer employees, will not be required to complete the EEO-1 report.  The goal is to remove the pay inequities amongst different protected classes.

Employers will have some time to make the necessary changes to their systems to ensure that their systems can collect and report this data.

Minimum Wage Increases

There are 21 states that are going to have a minimum wage increase in 2017.  While most of our industry pay rates are above the minimum wage amounts.  Services should check their state minimum wage to ensure that their mandated minimum wage pay and postings are up to date.

New Form I9

Just a reminder that employers will be required to use the new Form I9 for all employees hired on or after January 22, 2017.  The USCIS announced last month that it has updated the Form I9 and for employers to begin utilizing these forms no later than January 22, 2017.  For more information on the new Form I9, view the IRS Press Release announcement posted last month.

New W2 Reporting Requirements

Employers need to be aware that the Internal Revenue Service (IRS) has moved up the date that employers have to file their Form W2 with the IRS.  Previously, employers had until the end of February to file their Form W2s with the IRS.  Under the new deadline, employers must file all Form W2 by January 31, 2017.  The January 31st deadline has long applied to furnishing of the Form W2s to their employees.  For more details on the new filing deadline, read the IRS Announcement.

Signing Off for 2016

This has proven to be an incredibly busy year for all employers, including ambulance providers.  AAA Members should remember that there are numerous resources available through the AAA in the Member Area on the website, through AAA Staff and Consultants, and also with the hundreds of members who are all working together to care for the patients and communities we serve.  Do not face the challenges in your organization alone.  Your membership brings with it a great deal of tools and resources so that you can focus on providing your patient with outstanding service.  Happy New Year.


Federal Judge Hold Implementation of New Overtime Regulations

Just a few days before the new Fair Labor Standards Act (FLSA) Regulations were set to become effective, a 5th Circuit Federal Judge issued a ruling placing an injunction on the implementation of those Regulations which were estimated to effect nearly 4.2 million American workers.  The new Regulations nearly doubled the minimum salary level for those who would be exempt from the overtime provisions of the FLSA and provide for adjustments every three years.  21 States filed an emergency motion for an injunction in October stating the Department of Labor had exceeded its authority with these new provisions.

For now, employers can hold any adjustments that they were going make relative these new Regulations on December 1 while the question of their legality is resolved.  To get more details on the specifics and to catch up on the Member Advisories relative to these new Regulations, log into the AAA website.

Required Employment Posting Changes

Over the last few months we notified AAA members of several changes to employment laws that ambulance providers need to be aware of.  In early May we published advisories to members regarding upcoming changes to the Fair Labor Standards Act (FLSA) and the Reporting Requirements under the Occupational Safety and Health Act (OSHA).  In July, we notified members that the United States Department of Labor (DOL) would be increasing the civil penalties for violations of the laws that they enforce in an effort to update the penalty amounts to provide for adjustment due to inflation and to maintain the penalty’s deterring effect.

These changes require that employers update the required Federal employment postings in their workplaces.  The new postings are available on the Department of Labor’s website free of charge.  Alternatively, many employers purchase the all-in-one combination Federal and State posters from third party vendors.  Whether obtained from the DOL or from a vendor, the postings need to be updated to reflect these new changes.

Fair Labor Standards Act (FLSA)

The changes to the FLSA that were detailed during a AAA Webinar in June will become effective this coming December 2016.  While there was no change to the Federal Minimum Wage, there were substantial changes to the overtime exemption criteria effecting those who are currently characterized as exempt that will transition to non-exempt and eligible for overtime pay.  The required FLSA posting will reflect the change to the classification of employees, requirements for nursing mothers, and updated enforcement section.

Occupational Health & Safety Act (OSHA)

The AAA published an advisory in May notifying members about upcoming changes to the reporting requirements under OSHA, including provisions regarding the notification to employees of non-retaliation for those who file work injury or illness claims.  The non-retaliation notice provisions become effective November 1, 2016.  The new OSHA posting reflects the notice to employees regarding the non-retaliation provisions.

Civil Penalty Increases

The increases to the civil monetary penalties are reflected in the changes to both new FLSA and OSHA postings.  In addition, the Employee Polygraph Protection Act (EPPA) posting has changed to reflect the removal of a specific penalty amount.  The new EPPA posting can be found on the DOL’s website.

There has been a flurry of activity with regard to changes to laws that impact employees and employers over the last year with more on the horizon.  The AAA will continue to monitor those changes and provide guidance to ambulance providers on the best way to stay compliant.

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