TITLE 28. INSURANCE

PART 6. OFFICE OF INJURED EMPLOYEE COUNSEL

CHAPTER 276. GENERAL ADMINISTRATION

SUBCHAPTER A. GENERAL PROVISIONS

28 TAC §276.5

INTRODUCTION. The Office of Injured Employee Counsel (OIEC) proposes an amendment to 28 TAC §276.5, concerning Employer's Notification of Ombudsman Program to Employees, that establishes notice requirements for employers that employ first responders or supervise volunteer first responders. The proposed amendment to §276.5, adding new subsection (d), is necessary to implement House Bill (HB) 2082, 85th Texas Legislature, Regular Session, 2017, which requires OIEC to prescribe the manner in which certain employers must provide workplace notice of the existence of OIEC's first responder liaison, as required by newly enacted Texas Labor Code §404.153(a-1).

In addition, existing §276.5(c) is being amended to create uniformity in the publication standards for the additional requirements established under HB 2082 and to eliminate a duplicate telephone number.

REASONED JUSTIFICATION. OIEC proposes amendments to §276.5 detailing additional notice requirements for employers that employ first responders or that supervise volunteer first responders, to implement HB 2082, 85th Texas Legislature, Regular Session, 2017. HB 2082 requires OIEC to prescribe a manner of providing notification of the existence of OIEC's first responder liaison to first responders and volunteer first responders. HB 2082 gives OIEC the discretion to choose a notification method. The agency considered permitting email notification and electronic notification via a permanent posting on the employer's website. However, the agency was concerned that first responders and first responder volunteers might not have access to the internet in order to read a website. The agency was also concerned that employers may not be able to control email delivery due to filtering by email service providers.

To add additional flexibility, the agency no longer will require that employers post a specific poster downloaded from the agency's website, as in the past under existing §276.5(c). Employers are permitted flexibility to design the printed notice as long as the text of the language and the font size complies with the rule. Existing §276.5(c) is being amended to eliminate the requirement that employers download a poster from the agency's website and deletes a duplicate telephone number. The agency will also make printed posters available to employers upon request.

FISCAL NOTE. Mrs. Andria Franco, Deputy Public Counsel, has determined that for each year of the first five years the amendment is in effect, there will be no fiscal impact to state or local governments that provide workers' compensation coverage as a result of enforcing or administering the amendment, except to the extent set forth below. There will be no measurable effect on local employment or the local economy as a result of the proposed amendment.

PUBLIC BENEFIT/COST NOTE. Mrs. Franco has also determined that, for each of the first five years amended §276.5 is in effect, there are several public benefits anticipated, as well as potential, minimal costs for persons to comply with the proposal.

The public benefits anticipated as a result of the proposed amendment include: (i) ensuring first responder employees and first responder volunteers obtain contact information for the first responder liaison. In addition, amending the notice requirement under §276.5(c), grants employers additional flexibility to print and post notices in the most cost effective manner available to them. By placing the text in the body of the rule, the agency is eliminating the need for employers to visit the agency's website in order to obtain the notice.

Mrs. Franco anticipates that there will be an initial, minimal cost to employers required to comply with the amendment adding §276.5(d) and no further costs during each year of the first five years that the rule will be in effect. OIEC notes that a posting notice may be printed on one 8.5" x 11" piece of paper, with an estimated printing cost of $.10 per page. OIEC will provide on its website a compliant posting notice that employers may download, print, and post to comply with the notice requirements under §276.5.

Accordingly, OIEC anticipates that the individual or entity required to comply with a proposed provision will have the information necessary to determine its individual cost, including the number of pages that will need to be printed, and whether in-house printing costs or out-of-house printing costs will be incurred. The printing costs may vary or be slightly higher if in-house printing is not used.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES, AND RURAL COMMUNITIES. In accordance with Government Code §2006.002(c), OIEC has determined that the proposal will not have an adverse economic effect on small and micro-businesses.

The agency offers the following regulatory flexibility analysis regarding the impact on rural communities. The agency has determined that the adoption of §276.5(d) may have an adverse economic impact on first responder employers in rural communities.

According to the US Census Bureau Census of Governments, Texas has 5,147 local governments, the majority of which are located in rural communities. We estimate that each rural community will employ at least one first responder or can anticipate supervising at least one volunteer first responder at some point in the future. Therefore, almost all rural communities in the state will be required to post a notice as required by §276.5(d). The adverse economic impact may result from printing the required notice. The estimated cost of printing the notice is $.10 per notice. The cost of compliance will vary with the method of printing each employer selects.

In accordance with Government Code §2006.002(c-1), the agency considered other regulatory methods to accomplish the objectives of the proposal that will also minimize any impact on rural communities.

The primary objective of the proposal is to prescribe the manner in which employers of first responders and employers who supervise first responder volunteers must provide notice of the existence of the OIEC first responder liaison as required by Texas Labor Code §404.153(a-1). First responder employers and employers who supervise volunteer first responders will be required to place a printed notice in an area in the workplace where first responders and first responder volunteers are likely to see the notice on a regular basis.

Other regulatory methods considered by the agency to accomplish the objectives of the proposal to minimize any adverse impact on rural communities include: (i) email notification, (ii) text or short message service notification, (iii) notification via web posting, and (iv) reducing the font size to allow the notice to be included in existing printed materials.

Email Notification. Employers and employees may not control the deliverability of email messages. Even if the employer sent an email notification to an employee, a third-party email provider could filter out the message or send the message to a junk mail or other folders without the employee's or the employer's knowledge. In addition, this option requires that the first responder have access to an internet connection. Email provides no guarantee that the employee will ever have an opportunity to read the notice. The agency has rejected this option.

Text or Short Message Service Notification. While many cellular carriers offer free text message services, some do not. Therefore, the employee might be charged to receive a notification via text message. The cost of sending text messages to numerous employees is not necessarily less expensive than printing one piece of paper. The agency has rejected this option.

Web posting. A notice posted on a web page would only be seen by an employee visiting a specific page. In addition, a web-based notice requires access to internet service. In circumstances where a first responder volunteer is responding directly to the scene of an emergency, internet service might not be available. The agency has rejected this option.

Reducing the font size. The proposed subsection requires the notice be printed in a 14 point normal type and placed in an area in the workplace where an employee is likely to see it. The agency considered granting rural communities an exception to allow them to post the notice in 12 point normal type as long as the notice is given to first responders and volunteer first responders individually. Reducing the font size may allow rural communities to incorporate the notice into existing documents that the employer may already provide to first responder employees and first responder volunteers. In order to ensure that the notice was not overlooked, the agency considered requiring proof of the employee's acknowledgement of receipt of the notice. However, compliance and enforcement of an individual notice requirement would be cumbersome. The agency believes that a smaller font size might be too small to provide sufficient notice of the existence of the first responder liaison. The agency rejected this option.

Rural communities who do not have the ability to print their own notices may request a printed copy from OIEC.

The agency, after considering the purpose of the authorizing statutes does not believe it is feasible to modify the requirements of the proposal for rural communities.

GOVERNMENT GROWTH IMPACT STATEMENT. In accordance with Government Code, §2001.0221, concerning government growth impact statements, OIEC has determined that this rule amendment does not create or eliminate a government program. The addition of subsection (d) expands existing notice requirements for employers that employ first responders or supervise volunteer first responders. The amendment of subsection (c) does not create any new requirements for employer notices, but allows employers flexibility to publish the required notice without having to visit the agency's website for the notice language. The rule does not require the creation or elimination of new employee positions. The rule does not require an increase or decrease in future legislative appropriations. Any additional administrative requirements will be absorbed by existing staff. The rule does not require an increase or decrease in future legislative appropriations to the agency. The rule does not require an increase or decrease in fees paid to the agency. The rule creates a new regulation in subsection (d) for employers of first responders and employers who supervise volunteer first responders. The amendment to subsection (c) does not increase or decrease the number of individuals subject to the rule's applicability. The addition of subsection (d) creates an additional requirement for employers that employ first responders or supervise volunteer first responders. However, these employers would have already have been required to post a notice under subsection (c). The rule positively affects the state's economy because increasing awareness of OIEC's first responder liaison will decrease the length of time first responders are out of work and decrease the number and length of workers' compensation disputes involving first responders.

ONE-FOR-ONE RULE REQUIREMENT FOR RULES WITH A FISCAL IMPACT.

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

Proposed §275.5(d) is necessary to implement the requirements of HB 2082, 85th Legislature, Regular Session (2017) and therefore falls under exception §2001.0045(c)(9).

TAKINGS IMPACT ASSESSMENT. OIEC has determined that no private real property interests are affected by this proposal, and this amendment does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action. Therefore, this proposal does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on January 30, 2018, to Kathleen Contreras, Mail Code 50, and 7551 Metro Center Drive, Austin, Texas 78744. Any requests for a public hearing should be submitted separately to the public counsel.

STATUTORY AUTHORITY. The amended section is proposed pursuant to Texas Labor Code §404.153(a-1) and §404.006. Under §404.153(a-1), employers that employ first responders or supervise volunteer first responders must notify first responders of the OIEC first responder liaison in a manner prescribed by OIEC. Section 404.006 authorizes the public counsel to adopt rules as necessary to implement Chapter 404 of the Labor Code.

CROSS REFERENCE TO STATUTE. The following sections are affected by this proposal:

28 TAC §276.5, Texas Labor Code §§404.1525, 404.153(a-1), and 404.006.

No other statutes, articles, or codes are affected by the proposal.

§276.5.Employer's Notice of Ombudsman Program and First Responder Liaison to Employees

(a) All employers participating in the workers' compensation system shall post notice of the Office of Injured Employee Counsel's (OIEC) Ombudsman Program. This notice shall be posted in the personnel office, if the employer has a personnel office, and in the workplace where each employee is likely to see the notice on a regular basis.

(b) This notice of the Ombudsman Program shall be publicly posted in English, Spanish, and any other language that is common to the employer's employees.

(c) The notice shall be printed with a title in at least 15 point bold type and text in at least 14 point normal type. The text of the notice shall be as follows without any additional words or changes:

Figure: 28 TAC §276.5(c) (.pdf)

(d) An employer that employs first responders or that supervises volunteer first responders shall:

(1) Post the notice contained in paragraph (3) of this subsection in its workplace to inform employees who are first responders or volunteers who are first responders about the OIEC first responder liaison. The notice shall be posted in the personnel office and in the workplace where employees or volunteers are likely to read the notice on a regular basis.

(2) "First responder" has the meaning assigned by Texas Labor Code §504.055.

(3) The following notice shall be printed with a title in at least 15 point bold type and text in at least 14 point normal type, in English and Spanish or in English and any other language common to the employer's affected employee population. The text of the notice shall be as follows without any additional words or changes:

Figure: 28 TAC §276.5(d) (.pdf)

[(c) This notice shall be the text provided by OIEC without any additional words or changes and may be obtained by:]

[(1) Downloading the form on OIEC's website at: www.oiec.texas.gov; or]

[(2) Requesting the notice by calling OIEC's toll-free telephone number at: 1-866-EZE-OIEC (1-866-393-6432).]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 11, 2017.

TRD-201705062

Gina McCauley

General Counsel

Office of Injured Employee Counsel

Earliest possible date of adoption: January 28, 2018

For further information, please call: (512) 804-4194