Winning the Employee Health Issue Chess Game - April 7th, 2015 William A. Nolan (614) 628-1401 @ohiocurrents
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Winning the Employee
Health Issue Chess Game
April 7th, 2015
William A. Nolan
(614) 628-1401
bill.nolan@btlaw.com
@ohiocurrents
www.btcurrents.com (L&E Blog)And the “Winner” Is… Terminating Ill Employees Too Quickly Bill Nolan, Barnes & Thornburg, LLP To my knowledge there is no award for this, but I hereby nominate the rush to terminate an employees for absences for health reasons as the most avoidable action that employers take that gets them into legal hot water. Or, if you prefer, consider this a year-end list … of one. I am not saying that employers intend to discriminate or otherwise deprive the employees in question of their legal rights. To the contrary, I believe that most employers want and intend to comply with their legal obligations. Of course there are exceptions, but I think they are not the norm. But sometimes employers take actions that make it much more difficult for them to prove the lawful and appropriate basis for their decisions. Employee health issues may be the area where this happens most. You small employers who say, “Oh, this won’t apply to me” – stop right there. What I broadly refer to as “employee health issues” includes a host of potential legal issues, the most common of which are the federal Family and Medical Leave Act (FMLA) and the disability discrimination statutes. Indeed, the FMLA does not apply unless you have at least 50 employees and, depending on how they are geographically distributed, maybe not even then. And the federal Americans with Disabilities Act’s employment provisions apply only to employers with 15 or more employees. But, the Ohio discrimination statute applies to employers with as few as four employees, and under an Ohio Supreme Court decision, in effect, can apply to the discharge of an employee of any size. So, no matter how large or small your company is – keep reading. I have read a lot of court decisions about employees who allege they were terminated because of a disability and/or because they were exercising their rights to take FMLA leave. It is a good example of an area of the law that lawyers like to call “fact specific.” In other words, there are not a lot of bright lines setting forth when the employer may permissibly terminate an employee who may have a disability and/or is taking FMLA leave. You really have to look at the details of each particular case to assess the likely decision. Even then, different courts may make different decisions about similar circumstances. However, one thing I can tell you from this body of cases is that, if you could somehow graph the results of the cases, you would find that the employer’s success rate increases the more “steps” the employer took to try to work through the employee’s issues. The employer who gave the employee one more chance to provide the requested medical documentation or one more brief leave to try to come around to full health will succeed much more often than the employer who takes the first available opportunity to get rid of the employee. In other words, employers do not often win these cases because of the employee’s failure to return to work the day after the employee’s available leave expired, or because the returned requested from his/her doctor a couple days late. Employers win cases when they can show that they gave the employee reasonable opportunities to succeed. Not what seems reasonable to the employer who has been dealing with the situation, unfortunately, but reasonable to the judge or jury or other decision-maker who has to assess the matter based on a very condensed set of information in a very condensed time frame. I know what employer’s questions are from here. Can’t we ever get rid of an employee who won’t come to work? Absolutely. The courts have, for the most part, been clear that indefinite leave for an employee is not required, and I certainly do not recommend that employees provide that. A rule of thumb to consider along with your own lawyer is this: Go one more step than you feel like you should have to. This often will move you far enough along on that hypothetical graph that I mentioned.
I think the employee is ready to come back to work and just does not want to. I do not need any convincing that this happens. While I think there are fewer employees out there willing to be on unpaid leave than employers may think, I have certainly seen plenty of employees I think are malingerers. The challenge is, when you go to tell your story to that third party decision-maker, they do not know you or the employee. To persuade that audience, your file needs to be particularly compelling. Other employees are frustrated that they have to pick up this employee’s load. I am sympathetic to this, but the short answer is that none of us have much choice in this matter. It is a balancing act to manage these other employees while still maintaining the requisite privacy for the employee on leave, but experienced employment counsel can help you craft this message. If managers have built up some reservoir of trust with other employees, this is manageable. In short, there are few things in the area of employment law that I feel more certain about than this: by taking one more step, employers greatly decrease their legal risk with employees who ultimately are terminated for not coming to work. If you feel it is time to terminate such an employee, make the small investment in a few minutes of your regular counsel’s time to avoid having to purchase much more of it later.
COMPARING ADA, FMLA, AND WORKERS COMP
(for general comparison purposes only – talk to your lawyer about any specific situations)
ADA FMLA WC
Covered employers 15 or more 50 or more One or more
employees employees if 50 employee
employees within 75
miles
Employee eligibility None Worked for at least None
tests 12 mos. and 1250 hrs.
in last 12 mos.
Triggering Health Mental or physical Serious health Injury or occupational
Condition impairment that condition disease in the course
substantially limits of and arising out of
one or more major the employment
life activities
Is leave available? Individualized Yes If employee is unable
accommodation to return to former
analysis position due to
incapacity or
restrictions, “leave”
via temporary total
and/or wage loss
Statute require paid No No No, but employee
leave? may be eligible for
temporary total or
wage loss
compensation if
unable to return to
former position due
to incapacity or
restrictions
Duration of Leave Individualized Up to 12 weeks in a Depends on nature of
accommodation 12-month period incapacity and injury-
analysis length of employee’s
entitlement to receive
compensation varies
by stateIntermittent leave or Individualized Yes Yes, depending on
reduced work accommodation nature of injury and
schedule required? analysis incapacity
Notice from Yes- employee must Yes- if need for leave Yes-but employer
employee required? put employer on is foreseeable, may need to assist in
notice of disability employee must give filing claim
and request at least 30 days’
reasonable notice; if not
accommodations (but foreseeable, as much
need not be highly notice as practicable
formal; employer
needs to use common
sense in interpreting
communications)
Medical Certification Yes Yes-DOL WH-380 is Yes- but different
Required? one option kinds of information
Required to provide No, generally can Yes- cannot send No-generally can send
benefits during send COBRA notice if COBRA notice during COBRA notice if
leave? applicable FMLA leave applicable
Reinstatement Individualized Yes to same or Depends on
rights? accommodation equivalent job if employee’s ability to
analysis employee is medically do the job(permanent
able to return restrictions?)
Light duty work Does not require Does not require light Does not require light
employers to create duty and, if offered, duty, but many
light-duty positions, employee may not be employers have
but may require forced to take it temporary light-duty
reassignment or programs to get
modification of employees back to
marginal or non- work and off
essential job temporary total
functions as a compensation
reasonable
accommodation
Anti-retaliation Yes Yes Yes
provision?The 3 Types of Employees with Health issues (easiest to hardest)
1. Good employee wants to do what she can in light of her health condition, and it is
valuable to the company to have her do so.
a. Only risk is that you are setting the “floor” – showing what you CAN accommodate
and your standards for documentation, so be mindful of being too casual even
though there is agreement.
2. Employee cannot do the job and you compassionately work them out of the
organization at the appropriate time.
a. Often will get this as a “gift” from the employee’s doctor (not always intentionally –
they don’t understand the significance sometimes, e.g. of saying they don’t know
when the employee will be able to work).
b. Important to be able to conclude there is not an ascertainable return date that would
be within the range of reasonable accommodation.
c. Consider a modest severance.
3. Employee is not wholly unable to work but ability/willingness to work to her
capabilities is inadequate.
a. This can go one of two ways:
i. Company does not effectively address situation and:
1) Unsatisfactory situation continues or
2) Unnecessarily risky termination
ii. Company aggressively manages situation and:
1) Employee leaves voluntarily because she is having too work too hard
not to work, or
2) Employee is terminated, such as when
a) leave is exhausted
b) employee/doctor is not providing information
b. The sooner you start, the sooner you finish.
c. Aggressively manage every step (without appearing to be harassing).
i. Track down how each absence should be counted.
ii. Get the right medical documentation.
iii. HR manages 100%, NOT the supervisor.
d. Be able to articulate the baseline for accommodation and the business reason for it.
e. You can’t penalize people for taking leave your law and the policies give them.
f. Take one more step than you think you should. It will take longer than the supervisor
wants but it is the difference between winning (or avoiding altogether) and losing
legal disputes.
g. It may seem like more work than one employee warrants, but there is also value in
setting a culture of accountability.
William A. Nolan
(614) 628-1401
bill.nolan@btlaw.com
www.btcurrents.com (firm L&E Blog)
btlaw.com |Look Once More Before You Leap: Terminating Ill Employees Bill Nolan, Barnes & Thornburg, LLP The rush to terminate employees who are absent for health reasons is possibly the most avoidable action that employers take that gets them into legal hot water. Very few employers intend to discriminate. But sometimes employers take actions that make it much more difficult for them to prove the lawful and appropriate basis for their decisions. To give just one recent example, an employee’s Americans with Disabilities Act (ADA) claim went forward where the employee was terminated one week after presenting a doctor’s note indicating that the employee should undergo some tests relating to his sleeping at work. Click here to read more about this case but it is just one of hundreds that illustrate the point. While each case is different, over a couple decades of law under the ADA, Family and Medical Leave Act (FMLA), and other laws, the outcome has become very predictable: If you could somehow graph the results of the cases, you would find that the employer’s success rate increases the more “steps” the employer took to try to work through the employee’s issues. The employer who gave the employee one more chance to provide the requested medical documentation or one more brief leave to return to full health will normally be more successful in court than the employer who takes the first available opportunity to get rid of the employee. In other words, employers do not often win these cases because an employee failed to return to work the day after the employee’s available leave expired, or because the employee returned requested from his/her doctor a couple days late. Rather, employers win cases when they can show they gave the employee reasonable opportunities to succeed. Not what seems reasonable to the frustrated supervisor who has been dealing with the situation, but reasonable to the judge or jury or civil rights agency like the EEOC. Can’t we ever get rid of an employee who won’t come to work? Absolutely. Courts have for the most part been clear that indefinite leave for an employee is not required, and certainly I do not recommend that employees provide that. A good rule of thumb is to go one more step than you feel like you should have to. This often will move you far enough long on that hypothetical graph that I mentioned. I think the employee is ready to come back to work and just does not want to. This happens. There may be fewer employees willing to be on unpaid leave than employers may think, I have seen plenty of malingerers. But to persuade one of those third party decision makers of this, your file needs to be rock solid. Other employees are frustrated that they have to pick up this employee’s load. I am sympathetic, but none of us have much choice in this matter. It is a balancing act to manage these other employees while still maintaining the requisite privacy for the employee on leave. If managers have built up some reservoir of trust with other employees, this is manageable. By taking one more step, employers greatly decrease their legal risk with employees who ultimately are terminated for not coming to work. If you feel it is time to terminate such an employee, make the small investment in a few minutes of your counsel’s time to avoid having to purchase much more of it later.
HR BEST PRACTICES
MANAGING LIABILITY ASSOCIATED WITH EMPLOYEE HEALTH ISSUES
HR Manages Employee Health Issues – Not Direct Supervisors - Not only do the ADA and FMLA restrict
access to medical information, but production supervisors are not qualified to manage employee health issues. In
addition, to ensure consistent treatment of similar conditions, employers need to have a centralized department that
handles employee health issues.
Have Job Descriptions - Managing employee health issues lawfully consists largely of determining what aspects
of the job the employee can perform. Needless to say, this task is much less controversial when the nature of the
job has been documented prior to the employee health issue arising.
Don't Put Your Head in the Sand - Some employers have the misconception that they have no legal obligations
under the ADA and FMLA until the employee utters some magic words, e.g. "I need an accommodation." In fact,
employers are required to accommodate "known" disabilities, which is a much broader obligation. In any event,
employers can better manage employee health issues if they begin to do so at the earliest stages.
Involve Legal Counsel at the Early Stages - Court cases are won or lost by how the employer handled situations
at the earliest stages. Experienced legal counsel can help the employer avoid the missteps that result in much
greater legal costs down the road.
Analyze Separate Legal Issues Separately First - Employee health issues often involve many different legal
obligations -- ADA, FMLA, short-term and long-term disability coverages, leave and absenteeism policies, collective
bargaining agreement provisions, and workers' compensation. With the assistance of counsel, employers need to
make sure they have analyzed each of these issues separately and know how to comply with each obligation,
THEN put all of the pieces back together into a single coherent plan.
Exercise Your Legal Right to Obtain Job-Related Information - The courts have clearly stated that employers
have the right to obtain the information they need to fulfill their obligations under the ADA and the FMLA. (Though
note that the Department of Labor's FMLA regulations are somewhat restrictive in this regard and employers should
consult with counsel about exactly what information they request.) Put another way, employees have an obligation
to cooperate with the employer’s reasonable requests for medical providers' assessment of employees' ability to
perform the job.
Exercise That Right in Writing and Use the Employee as a Messenger - The ideal form of communication with
employees' medical providers is a written health care certification form approved by legal counsel and provided to
the employee with a reasonable deadline for its return. HR professionals should not normally telephone employees'
doctors to discuss these issues. This allows for a structure and documented exchange of information and saves the
company the trouble of chasing down employees' doctors.
Proceed One Step at a Time - There is no formula for handling employee health issues, each of which is different.
Employers really can only intelligently determine the next step in the process of managing an employee's health
issue. The following step depends on the outcome of the first step. One important part of this best practice is that a
written "reasonable accommodation policy" is not recommended. It is fine to express a commitment to complying
with the employer's obligations under the ADA (or any other statute), but a policy that outlines any specific steps
will likely limit the employer's ability to flexibly deal with each situation on its own terms.
Be Patient - Court cases show us that employers who take the time to work through an employee health issue are
much more likely to succeed in subsequent legal proceedings than employers who rush to terminate an employee
who has become inconvenient. This is one reason why it pays to begin to tackle these issues at their earliest
stages.
Bill Nolan
(614) 628-1401
bill.nolan@btlaw.comWilliam A. Nolan
Partner
bill.nolan@btlaw.com
P. 614-628-1401
F.614-628-1433
41 S. High Street
Suite 3300
Columbus, OH 43215-6104
William A. Nolan serves as the Managing Partner of Barnes & Thornburg
LLP’s Ohio offic,e,which he opened in 2009. He is a member of the firm’s Labor
State Bar Admissions
and Employment Law Department. He works to bring attentiveness and clarity to
employment, contract, and other disputes, and helps clients build teams, policies Ohio
and processes to minimize the frequency and severity of disputes.
Education
Bill's litigation and trial work includes covenant not to compete and trade secret
cases in federal and state courts throughout the country. He regularly defends Cornell University
employers in discrimination and discharge lawsuits and administrative
(B.A. 1984)
proceedings, and is experienced in wage and hour, contract and tort litigation,
and arbitrations and mediations. Harvard University
(J.D.1989)
Bill’s dispute avoidance focuses include:
Assisting employers with issues arising from the impact of changing
technology on litigation, the workplace and organizations, from employee
monitoring to data privacy to electronic records management.
Negotiating and drafting documents that form employment and other
organizational relationships, including individual executive and
employment contracts and restrictive covenants, collective bargaining
agreements, employment-related provisions of corporate transaction
documents, leased employee and other contingent work arrangements,
and workplace and other policies and procedures.
Help clients maneuver around ever-increasing legal mandates, and
has distinctive experience in employee health and leave issues and the
many laws that those issues implicate.
Counseling clients on workplace harassment complaints and
investigations.
Bill’s community and professional involvement includes
Former two-term councilman and mayor of Powell, Ohio.
Past member and chair of the board of trustees, and currently on the
collective impact committee, of the United Way of Delaware County
(Ohio).
P a s t board member and treasurer of the Community Foundation of
Delaware County.
Currently on the Small Business Committee of the Columbus Chamber
of Commerce.
Charter member and member and immediate past chair of the steering
committee the Ohio Management Lawyers Association (OMLA).
Member and past chair of the Labor and Employment Law Committee of
the Columbus Bar Association.Bill speaks and writes extensively on many of the above topics, as well as about effective attorney/client relationships and managing legal costs. He authors the Ohio chapters of four BNA state-by-state treatises, Trade Secrets, Covenants Not to Compete, Employee Duty of Loyalty, and Tortious Interference with Contracts. He also serves as a volunteer mediator for the U.S. Equal Employment Opportunity Commission. He is regularly listed in Chambers USA, The Best Lawyers in America and Ohio Super Lawyers, including as one of Super Lawyers’ Top 100 lawyers in Ohio and Top 50 lawyers in Columbus. Best Lawyers named Mr. Nolan a "2015 Lawyer of the Year" for his work in education law.
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