Your Employee Matters

The case of Deborah HANSLER v. LEHIGH VALLEY HOSPITAL NETWORK shows how employers can get in trouble with FMLA regulations-even where an employee provides and insufficient medical notice.

Deborah  Hansler was hired by Lehigh Valley Health Network (“Lehigh Valley”) in 2011 to work as a technical partner. In early March 2013, Hansler experienced shortness of breath, nausea, and vomiting. The cause of these symptoms was unknown. On March 13, Hansler’s physician completed a medical certification form “requesting intermittent leave at a frequency of 2 times weekly starting on March 1, 2013 and lasting for a probable duration of one month- or until about April 1, 2013.” Hansler submitted the certification to Lehigh Valley as part of a formal request for leave under the Medical Leave Act. Because of her condition, Hansler could not work on March 13, 14, 23, 24, and 25.

Without seeking further information about the medical certification from either Hansler or her physician, Lehigh Valley terminated Hansler at the end of her shift on March 28. The basis for Hansler’s termination was absenteeism, including the five days she took off in March. Hansler reminded Lehigh Valley she had requested time off under the Medical Leave Act, but Lehigh Valley informed her, for the first time, her request had been denied. Following the last of her absences, Hansler learned of a letter dated March 26 explaining her request for “leave of absence (FMLA) for the period of 3/1/13–3/11/13” was denied because her “condition presently does not qualify as a serious health condition under the criteria set forth by the [Medical Leave Act].” In early April 2013, after her dismissal, Hansler received a diagnosis of diabetes and high blood pressure. She alleges these previously undiagnosed and untreated conditions are what caused her March absences.

Hansler sued Lehigh Valley under the Medical Leave Act for interfering with her substantive rights to medical leave and for terminating her in retaliation for seeking leave. In her complaint, Hansler alleges she has chronic serious health conditions and argues that Lehigh Valley improperly denied her request for leave without providing her an opportunity to cure her medical certification. The District Court granted Lehigh Valley’s motion to dismiss for failure to state a claim. It concluded Hansler’s request for leave was defective because her medical certification indicated her condition would last only one month, but the Medical Leave Act requires that a chronic serious health condition persist for an “extended period of time.” The District Court held that because the certification showed Hansler was not entitled to leave, Lehigh Valley was not required to afford Hansler a cure period and could terminate Hansler for her subsequent absences. That Hansler was later diagnosed with diabetes and high blood pressure was of no consequence. According to the underlying Court, “[a]lthough the timing of events for plaintiff was, without question unfortunate, the fact remains that her diagnosis with diabetes and high blood pressure did not occur until after her leave request was denied and she was fired by defendant.”

After summarizing the above facts, the appellate Court began then summarized the law around FMLA notices. It reminded us that a “serious health condition” involves inpatient care in a hospital or “continuing treatment by a health care provider.”

Most important is the Department of Labor’s regulations governing how employers respond to perceived deficiencies in medical certifications. An employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c). …If the employer determines a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has “provide[d] the employee with seven calendar days, unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts, to cure any such deficiency.”

On top of that the Court stated the fact Hansler was diagnosed with her illnesses after she was fired does not affect determining whether her medical certification was insufficient.

“Not only is our conclusion dictated by precedent and the statutory and regulatory text, but we believe the cure period makes abundant sense in this context. Faced with nascent symptoms from a yet-to-be diagnosed condition, an employee’s physician may need some additional time to provide the required elements of a sufficient certification, including more specific information regarding relevant medical facts and the probable duration of the condition, the planned medical treatment, and the intermittent leave. 29 U.S.C. § 2613(b). As this case illustrates, for an employee with an emerging condition, the difference between a medical certification that supports leave and one that is deficient might be a matter of days.”

The dissent:

The dissent understood the “trap” position of the employer. Here’s is an excerpt from it.

“The majority fashions a new rule to fit a sad case. In early April of 2013, Deborah Hansler was diagnosed with diabetes and high blood pressure. Had these conditions been diagnosed just days earlier when Hansler applied for FMLA leave, she would have been entitled to medical leave under the Family and Medical Leave Act —ensuring her time to treat her illness and a position upon her return. Instead, Hansler was denied leave and terminated from her job at Lehigh Valley. While I too sympathize with Hansler’s situation, I cannot subscribe to the majority’s strained reinterpretation of the FMLA.

“When an employer receives a request for FMLA leave, the decision on whether to grant that leave depends on the factual situation presented to the employer at the time that the leave is requested. The “crucial moment for determining if a particular condition qualifies” for FMLA leave “is the time that leave is requested or taken.” Here, Hansler requested “intermittent leave at a frequency of 2 times per week” for one month based on her suffering from shortness of breath, nausea, and vomiting during the previous two weeks. Hansler’s medical certification accurately reflected her condition at the time of her request. This condition did not, however, qualify her for FMLA leave. This is not a case of a deficient certification that omitted necessary information. It is simply a case of a certification that describes a condition that is not one for which FMLA leave can be awarded.

“The reader may respond, “Well, let’s not penalize the poor lady for applying too early for leave—for applying before her physician had diagnosed diabetes. Let’s let her clear up any short fall in the information she gave her employer by permitting her to correct her deficiencies pursuant to 29 C.F.R. § 825.305(c).” The problem with this solution is that the employer in good faith, with the completed form and the information on it, has denied FMLA leave because the employee was not qualified for it. There was no indication on the certification of the health care provider that one or more of the applicable entries had not been completed and there was no information that was vague, ambiguous, or non-responsive. The certificate was not rejected by the employer as incomplete or insufficient. FMLA leave was denied because the completed certificate did not present grounds to grant FMLA leave. In this situation, there is no statutory right to cure by presenting further information within seven days. The employer here should not be penalized for denying leave when the complete and unambiguous request for leave did not present grounds for leave.

“….Ultimately, the issue is who bears the burden when an employee has an undiagnosed condition. The majority tasks employers with this novel burden, deeming it irrelevant “whether Lehigh Valley could have known Hansler was suffering from a chronic condition at the time she requested leave.” This construction is not tethered to the statute’s text, which places the burden on employees to demonstrate that they qualify for leave and permits employers to require that a leave request be supported by a medical certification. The majority’s conclusion that employers may not then reasonably rely on that information makes little sense. I would hold that where, as here, an employer has no basis for concluding that an employee has a current, serious health condition under the FMLA, it may deny the leave request. Such a denial is not interference.

Going forward under the Majority’s rule, you will now be able to maintain an interference claim against your employer regardless of your condition when you request leave if you claim that your diagnosis changed or was not finalized until after you submitted the request. This is true for even the most frivolous leave requests. Indeed, following the Majority, as long as the “certification does not contain a statement from [your] physician saying that [you] would not miss any work,” the employer who denies a leave request is at risk of an interference claim. For lawyers seeking attorneys’ fees under the FMLA, this message will sound loud and clear.

Response to the dissent:

“Our decision that the certification Hansler’s doctor submitted is “insufficient” under 29 C.F.R. § 825.305(c) does not mean, as the dissent contends, that “you will now be able to maintain an interference claim against your employer regardless of your condition when you request leave if you claim that your diagnosis changed or was not finalized until after you submitted the request.” Nor does it mean that the “employer who denies a leave request is at risk of an interference claim.” It does mean that when a certification submitted by an employee is “vague, ambiguous, or nonresponsive,” the employer must, under 29 C.F.R. § 825.305(c), provide the employee an opportunity to cure the deficiency within seven days.”

The practice pointer is this: no matter the quality of the FMLA Notice Requesting Leave- if the intended response denies the leave tell the employee why and give them a reasonable period to address any insufficiency. It is also interesting no mention of the ADA accommodation was ever brought up, even though she arguably had a covered disability as well.

For additional information see http://www.dol.gov/whd/regs/compliance/whdfs28d.pdf

• Inform staff about the basic principles of the ADA and reasonable accommodation. They must know the employer’s obligations under the ADA, general accommodation requirements, and how to avoid discrimination.
• Train staff how to recognize and respond to an accommodation request. This is where a formal reasonable accommodation procedure will help management engage and implement accommodations in a way that is fair and consistent. When an employee indicates that a medical condition is causing a work-related problem, a supervisor or manager should treat it as an accommodation request until a definite determination is made.
• Limit the sharing of medical information. Employee medical information should be shared with only those who are considered to be on a need-to-know basis. In many cases, medical information is provided to HR, however, supervisors and managers often do not need to know an employee’s specific medical impairment to implement accommodations. Details about the accommodation may be all that is needed. Knowing fewer details about an employee’s medical impairment will be beneficial when other employees ask questions about accommodations – the manager won’t be in a position to unnecessarily reveal information s/he is not aware of.
• Don’t perpetuate or tolerate harassment. Expect management staff to communicate respectfully and interact positively with employees who have accommodations, as should be expected with all employees. Management should refrain from making negative or derogatory remarks in response to an accommodation request or questions from co-workers about accommodations.

According to insurance industry estimates, fewer than 50% of companies carry EPLI. While most large companies carry it, the smaller the employer, the lower the percentage of coverage. This mirrors feedback I get from CEO’s I speak to nationwide. Although the cost of coverage varies, a $1 million policy with a $10,000 deductible usually costs from $50 to $250/year per employee. When you think about obtaining EPLI, weigh the cost of this protection against the likelihood and impact of a claim, settlement, verdict, etc.

• 88,778 cases were filed with the EEOC in 2014
• Average employee verdict exceeds $200,000
• 14% of all verdicts exceed $1 million
• Average settlement is $75,000
• Legal fees average over 100,000
• Wasted time, an emotional roller coaster, impact on the company’s brand among all stakeholders — priceless.

By Don Phin, Esq., V.P. at ThinkHR

When Mother Nature hits with a fury, is your company prepared to support employees with the right action right away? Whether or not your office is in a region where inclement weather is a frequent threat, having a natural disaster plan and inclement weather policy is not just smart, it’s strategic. It demonstrates that you care about the safety and well-being of your staff and their family members.

Creating a policy isn’t as difficult as one might think. There are no regulations surrounding how to handle staff during inclement weather conditions; it is simply a matter of what the company will do while ensuring wage and hour compliance.

Some companies will permit nonexempt (hourly) employees to use vacation or paid time off (PTO) balances to cover unpaid work days, while other organizations may provide pay in lieu of unpaid work days during office closure days due to inclement weather. While the latter option is less common, it is a commendable benefit offered to the employee when budget permits.

Things to consider when creating an inclement weather policy:

• The process for determining office closure for full and partial days, such as weather alert, state of emergency notification, level of snow dropped or expected, earthquake magnitude, fire, flooding, hurricane, power outages, etc.

• A notification system and process for effective communication to and from employees; such as a call tree, text alert, etc.

• Determination of how the company will manage pay under federal and state wage and hour regulations to ensure employees are compensated fully during natural disasters.Overtime pay and what will be permitted.

• Leave pay and what options an employee may have, such as using leave accrual to cover any gaps in pay.
• Productivity, including what roles may work remotely.

• How to properly handle situations when employees cannot safely travel to work when the office is open.

• Consideration of how to address circumstances that may arise beyond a standard policy, for example, how to supportemployees with household needs like displacement, home repairs, child care, or medical needs.

Regardless of if your company is in an area that routinely or rarely experiences such incidents, creating and providing your employees with a policy provides an advanced notice what they may expect should a weather or natural disaster issue escalate. Creating a policy to support your workforce prior to Mother Nature’s strike provides peace of mind for both the company and workforce. Don’t fool with Mother Nature, draft your policy now for the long-term future.

In Michaelin Higgins-Williams V. Sutter Medical Foundation, the plaintiff made the argument that working under her supervisor, and with the HR person, caused her anxiety and stress, a disabling condition protected by California’s Fair Employment and Housing Act (which is similar to the ADA). The plaintiff was hired as a clinical assistant to work as a “floater” during patient intake. For 4 years she reported to her supervisor, Norma Perry. In June 2010, she reported to her physician she was stressed because of interactions at work with human resources and her manager. She was diagnosed as having adjustment disorder with anxiety.

Based on this diagnosis, Sutter granted her twelve weeks protected leave under the CFRA and FMLA. Upon her return from that leave, she received a negative performance evaluation and other actions which once again increased her anxiety. As an accommodation, she asked for a transfer to another department and some time off. Sutter granted her the additional time off, but not the transfer request. This charade went on back and forth for several months until she was finally informed that she would not be transferred and would not be provided with additional leave. In total she had been given 5 months of additional leave beyond that required by the FMLA. Her only option was to return to work which she did not do. So she was fired.

Ms. Higgins-Williams sued, claiming a violation of disability accommodation law and retaliation. Fortunately for Sutter, and every other employer, the court ruled in the company’s favor. The court stated “An employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of an employee’s job performance does not constitute a disability.” While we can hear a collective sigh of relief from employers, the only caveat is the language set forth indicating that the manager engaged in “standard oversight of the employee’s job performance”. The ruling may have been different, however, if the supervisor or manager was a bully, harasser, etc.

A report by Quest Diagnostics http://www.questdiagnostics.com/home/physicians/health-trends/drug-testing  should cause employers concern. Drug use by workers is up. The surprising news is it’s not just the states with legalized marijuana laws suffering an increase. States without marijuana use laws are also finding a roughly 5% rise in use. Cocaine and Methamphetamine use are also on the rise. While a lesser percentage of workers use the harder drugs, the percentage of hard drug use has increased faster than marijuana.  A broader survey, SAMHSA’s National Survey on Drug Use and Health (NSDUH), mirrors the Quest findings over the general population.

It’s not just street drug abuse going on. According to SAMSHA, prescription drugs are abused and misused more often than any other drug, except marijuana and alcohol.

What’s an employer to do?

First here are a few great government resources to consider:

SAMSHA– http://www.samhsa.gov/atod and http://www.samhsa.gov/workplace/workplace-programs
DOL Drug Free Workplace Advisor http://www.dol.gov/elaws/drugfree.htm  
National Drug-Free  Workplace Alliance– http://www.ndwa.org/  
OSHA https://www.osha.gov/dcsp/alliances/drug_free/drug_free.html 

An increasing number of businesses across the country are instituting drug-free workplace policies that include workplace drug-testing programs, for a host of reasons. Some institute the policies to comply with federal regulations, customer or contract requirements, or insurance carrier requirements. Others wish to improve safety, minimize the chance of hiring employees who may be users or abusers, deter “recreational” drug use that could lead to addiction, identify current users and abusers and refer them for assistance, or reduce the costs of alcohol and other drug abuse in the workplace. Drug testing is one way to protect the workplace from the negative effects of alcohol and other drug abuse. A drug- and alcohol-testing program can deter employees from coming to work unfit for duty.

According to the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA), substance abusing employees rarely make good employees. Studies show that, compared with nonsubstance abusers, they are more likely to:

•    Change jobs frequently.
•    Be late to or absent from work.
•    Be less productive employees.
•    Be involved in a workplace accident.
•    File a workers’ compensation claim.

Workplace substance abuse can also have a serious effect on people other than the abuser. Some studies suggest that working alongside a substance abuser can reduce non-abusers’ morale and productivity. It also is common for substance abusing workers involved in workplace accidents to injure other people (rather than themselves), especially if they work in safety-sensitive industries, such as the transportation or construction industry.

SAMHSA also stated that employers who have implemented drug-free workplace programs have important experiences to share:

•    Employers with successful drug-free workplace programs report improvements in morale and productivity and decreases in absenteeism, accidents, downtime, turnover, and theft.
•    Employers with longstanding programs report better health status among, and decreased use of medical benefits by, many employees and family members.
•    Some organizations with drug-free workplace programs qualify for incentives, such as decreased costs for workers’ compensation and other kinds of insurance.
•    Employers find that employees, employee representatives, and unions often welcome drug-free workplace programs. If an employer has no program, employees may wonder why

By Rick Montgomery, JD, Managing Legal Editor for ThinkHR Corporation

Every once in a while employers catch a break. In the Colorado Supreme Court case of  Coats v. Dish Network, LLC, 2015 CO 44 (2015), the court unanimously ruled that an employer could lawfully terminate an employee who tested positive for marijuana in a random drug test, even though the employee’s use of marijuana was off-duty and prescribed under Colorado’s Medical Marijuana Amendment. With the Coats decision, the Colorado Supreme Court joined courts from California, Montana, Oregon, and Washington which have upheld an employer’s right to hire, discipline, or terminate an employee for marijuana use, even if the employee’s use is accordance with the state’s medical marijuana law.

Here, Brandon Coats (Coats) was an employee of Dish Network who was a quadriplegic suffering from debilitating muscle spasms. Coats had a valid medical marijuana prescription which he used to help control the muscle spasms. Dish Network terminated Coats after a positive drug test for marijuana, even though he was never under the influence of the drug on company premises. Coats sued Dish Network alleging wrongful termination under Colorado’s “lawful activities statute” (Colo. Rev. Stat. §24-34-402.5), which prohibits employers from terminating employees for lawful off-the-clock behavior. The Colorado trial court dismissed the case, ruling that the employer had acted lawfully. In a split decision, the Court of Appeals agreed, reasoning that the employment termination was lawful because marijuana use is illegal under federal law and could not be considered “lawful activity” under Colorado’s “lawful activity statute,” even though it is explicitly legal under the state’s medical marijuana law.

In a unanimous decision, the Colorado Supreme Court affirmed the dismissal. The court reasoned that while Coats’ use of medical marijuana was lawful under Colorado’s medical marijuana law, marijuana is a “Schedule 1 substance” under the federal Controlled Substances Act and its use, even for medicinal purposes, is a federal criminal offense. As a result, Coats’ use of medical marijuana was not “lawful” and he was not protected from termination because of his use of medical marijuana.
Employers should note the decision in Coats. Almost half the states have laws that permit the use of marijuana for medical purposes. These states include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. As many have been enacted rather recently, case law in this area is still developing.

Before taking adverse action against an employee who uses medical marijuana, employers should review the medical marijuana law of the state in which the employee is located. Most of the state medical marijuana laws explicitly prohibit the use of marijuana in the workplace and/or provide that employers need not accommodate any form of marijuana use in the workplace. However, a handful of state medical marijuana laws contain antidiscrimination or reasonable accommodation provisions directed at employers (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, and New York).

ThinkHR will continue to monitor developments in this area.

Hiring great employees is a never ending challenge for most all employers. Here’ a few ideas to help you stand out from the crowd:

1. Include a brief slide deck or video explaining the job opportunity on any job posting page. Make sure the link is mobile-friendly. If you do not know how to do this, ask one of the 20-somethings in your workplace and they can do it for you. Make sure you get a YouTube and SlideShare account.

2. Identify what skill and cultural characteristics matter most. Have your employees talk about it on a video. For example, are you hiring in the top 25% of skill sets? Is there a place where applicants can actually get themselves tested to see if they pass muster before you ever interview them? Also, what type of culture, attitude or personality are you looking for? Spell it out for people. You may be a crazy, fast-paced, frantic company. If so, say you are looking for people who thrive in such an environment. Conversely, you may be a laid-back, family business that’s really not interested in hiring Type A’s. Let them know that too.

3. This is a knowledge economy. Find out if applicants are learners. What have they done to educate themselves, given their career aspirations, over the last year? What books, magazines, courses have they paid for on their own? Also ask them what they’ve learned about the company at the beginning of the interview process and then follow up with the very same question at the end in light of the interviews they went through.

4. You are hiring people to solve problems. Most problems have two aspects to them: strategic (ideas) and tactical (actions). Put your biggest problems in front of candidates and ask them what strategic and tactical steps they would take to help you solve it. You should gain a lot of valuable information- even from those candidates that you failed to hire.

5. Do a committee interview of the three final candidates. Depending on your circumstances, include a mix of panelists with employees, managers and others on it. Keep the panel to three people. Then have that panel prepare three interview questions they will ask of all three candidates. This means that a total of 27 questions will be asked at a minimum.

When doing this committee interview, you are not just focused on the candidates’ answers, but how those candidates treat each other through the competitive process. It will tell you a lot about their personality and how they will treat fellow employees once they are hired.

Fun bonus idea – Ask job applicants to provide a joke with their resume. That’s right, a joke. It will tell you a lot about their personality. If they don’t supply a joke, well, they can’t follow instruction and you don’t hire them. When they do supply a joke, it will let you know if they are capable of political correctness in the workplace. Anyone who provides a racy joke should be reconsidered, unless that’s the type of culture you are nurturing. Lastly, it will help the interview process go much faster and you’ll get a few laughs along the way.

In the comments section below, don’t hesitate to add some of your great hiring ideas.

Employer can get in trouble when their managers retaliate against an employee who files a workers compensation claim. In some states the employee may bring wrongful termination and other lawsuits. In other states, like California, the remedy is within the work comp system, known as a 132(a) claim. When filing a Section 132(a) claim, “in addition to establishing that the industrial injury has resulted in some detriment, the worker must also prove that he or she was singled out for disadvantageous treatment because of the injury.” This is typical of language found in other states.

Conduct that will not result in a retaliation claim:

Where there is truly no work available.
Where the employee is unfit for duty because they will risk further injury or aggravation to an injury.
Where there are safety issues related to the employee or third parties.
Where there’s a business necessity (such as lack of funds or a change in company direction).
If they were terminated for cause (and consistently with how others were treated in engaging in similar wrongdoing).
If there’s a layoff or reduction in force.

Conduct that can generate claims:

If there/s a change in pay, hours or duties without a legitimate business justification.
Where they were “singled out” or otherwise treated “differently” than others causing discrimination claims.
Where the company makes return-to-work or light-duty decisions without medical proof.
Where employees are placed in demeaning light duty positions.
Forgetting the ADA and FMLA also impact on return to work decisions.