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Employer Law Report

Proposed Ohio Senate bill would permit workers’ compensation benefits for emergency personnel With PTSD

Posted in Other Articles

Ohio Senators have introduced a bill to change Ohio workers’ compensation laws to permit claimants who are peace officers, firefighters or emergency medical personnel diagnosed with post-traumatic stress disorder (“PTSD”) to obtain workers’ compensation benefits.

Presently, Ohio law only recognizes claims for psychological conditions if the psychological condition arises out of an injury or occupational disease or is the result of sexual assault. As we have previously reported on this blog, the Ohio Supreme Court, in the Armstrong v. John R. Jurgenson Comp., et al., case explicitly determined that compensable psychological conditions must arise out of the claimant’s physical injuries. A psychological condition such as PTSD that arises due to an incident and not physical injuries is not compensable. The pending bill proposes to change that standard for emergency personnel and permit them to receive benefits even if the PTSD does not arise out of physical injuries.

According to an AP news article, The Ohio Bureau of Workers’ Compensation believes the change in the law could be extremely costly and estimates it could cost employers $182 million annually and double the premiums for public employers. This estimate was calculated presuming 18% of first responders would file claims for PTSD. Similar legislation in other states has drawn criticism from police chiefs who worry about the increased financial burden.

Although the immediate impact would be on public employers, should the proposal become law, it may lead to a movement for the law to be changed to permit all employees to receive benefits for PTSD, regardless of whether a physical injury caused the psychological condition.

Last year, the bill’s sponsors proposed a similar measure which the Senate passed with bipartisan support. However, the House never voted on the measure. Presently, the Senate has delayed any vote on the issue for further comment from interested parties. We will keep you updated on whether or not the legislators pass the proposal and its potential impact.

EEOC issues proposed rule on ADA application to employer wellness programs

Posted in EEO, Employee Benefits/ERISA

On April 16, 2015, the EEOC released its long-anticipated proposed rule on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. For the most part, the rule reflects the EEOC’s efforts to make the ADA’s requirements consistent with the requirements for employer wellness programs that are already found in HIPAA’s non-discrimination provisions, as amended by the Affordable Care Act (“ACA”), but there are some key differences and the EEOC’s proposed rule leaves open some questions that hopefully will be addressed when the final rule is issued. (Note that the Office of Civil Rights of the U.S. Dept. of Health and Human Services also issued two FAQ’s regarding the application of HIPAA privacy and security rules on workplace wellness programs on April 16th. Those FAQ’s can be found here.)

Many employers use wellness programs in an effort to promote healthier lifestyles for their employees and families, which of course also tends to reduce the employers’ health insurance expenses.  In these programs, employers use tools such as health risk assessments that measure such health markers as blood glucose and cholesterol levels, blood pressure and body mass indices and typically provide health insurance discounts or other financial incentives to get employees and their families to either participate or to achieve specific healthier outcomes.

In order to ensure that participation in wellness programs are voluntary, however, the EEOC’s proposed rule limits the financial incentive that an employer may offer employees to 30% of the total cost of employee-only coverage under the plan, including both employee and employer contributions towards the cost of coverage (or 50 percent to the extent that the additional percentage is attributed to tobacco prevention or reduction).

It is unclear why the EEOC’s proposed limitation is based on employee-only coverage when the ACA does not seem to limit the incentive to employee-only coverage. The EEOC’s proposed rule also puts the 30% limitation on any participatory wellness program where participation requires employees to answer disability-related inquiries or submit to medical examinations. The EEOC clarifies, however, that a smoking cessation program that merely asks employees whether or not they use tobacco (or whether or not they ceased using tobacco upon completion of the program) is not an employee health program that includes disability-related inquiries or medical examinations.

Further, to ensure that participation in a wellness program that includes disability-related inquiries and/or medical examinations and that is part of a group health plan is truly voluntary, the proposed rule would require that an employer must provide a notice that clearly explains what medical information will be obtained, who will receive the medical information, how the medical information will be used, the restrictions on its disclosure, and the methods the covered entity will employ to prevent improper disclosure of the medical information. Finally, the proposed rule allows the disclosure of medical information obtained by wellness programs to employers only in aggregate form, except as needed to administer the health plan.

Interestingly, the EEOC’s proposed rule chooses to ignore the ADA statutory safe harbor provision that exempts certain insurance plans, including group health plans, from the ADA’s general prohibitions, including the prohibition on “required” medical examinations and disability-related inquiries. The EEOC’s ability to restrict the terms of a wellness program based on its inclusion of disability-related inquiries ultimately may end up being litigated in court. Indeed, a panel of the 11th Circuit Court of Appeals already has concluded that the safe harbor applies to permit the disability-related inquiries to be made as part of a wellness program established as part of a group health plan.

The EEOC’s proposed rule does not address the extent to which Title II of the Genetic Information Nondiscrimination Act (GINA) affects an employer’s ability to condition incentives on a family member’s participation in a wellness program. This issue apparently will be addressed in future EEOC rulemaking.

 

Although the EEOC’s proposed rule on employer wellness programs won’t go into effect until after a comment period has passed and the rule (as it may be amended) becomes final, employers should evaluate their wellness programs to determine whether they will be compliant. At a minimum, employers should be sure that they do not require employees to participate in their wellness programs or deny health insurance to those who do not participate or meet stated health-related goals. In addition, employers may not take any other adverse employment action or retaliate against those who do not participate or meet their health-related goals.

Quitting Employment for Personal Reasons Precludes Temporary Total Disability Compensation

Posted in Workers' Compensation

In State ex rel. Hildebrand v. Wingate Transp., Inc., the Ohio Supreme Court  recently ruled that an employee who quit his job for reasons unrelated to his work injury was barred from receiving temporary total disability compensation.

Brian Hildebrand, a mechanic with Wingate Transport, Inc. injured his back on June 3, 2009. On June 8, 2009, he sought chiropractic treatment and was diagnosed with a left sacroiliac joint sprain/strain. After seeking treatment, he returned to work the following day with a note from the chiropractor restricting him to modified duties.   Hildebrand spoke with the owner, Jeffrey Wingate, and confirmed he could perform light duty work. During the same conversation, Wingate asked Hildebrand to return a borrowed Jeep that Wingate had loaned him after his own vehicle had been wrecked during an accident. Hildebrand inquired whether his employment was being terminated. The incident escalated and ultimately the police were called to the premises. In cooperation with the police, Hildebrand left the worksite and never returned.

A week later, Hildebrand filed for unemployment benefits; however, the Department of Job and Family Services denied the request, finding he had quit his job for personal reasons without just cause.  He then filed for workers’ compensation benefits.   Wingate objected to the claim, arguing that Hildebrand had pre-existing low back injuries.

The Industrial Commission recognized Hildebrand’s claim for left sacroiliac sprain/strain but denied his request for temporary total disability compensation, finding that he had voluntarily quit his employment. Hildebrand filed a mandamus challenge to the Industrial Commission’s decision. The court of appeals denied Hildebrand’s request, finding that the evidence supported that he had quit his job for reasons unrelated to his work injury. Hildebrand in turn appealed to the Supreme Court of Ohio.

Temporary total disability compensation is intended to compensate an injured worker who is unable to return to work as a result of a workplace incident. The key determination is whether or not the work incident is the reason why the employee is unable to return to work. Under the abandonment doctrine, an employee who voluntarily leaves a position of employment is not entitled to receive temporary total disability compensation.

In this case, Hildebrand conceded that he quit his job for reasons unrelated to his work incident. He argued that he was not barred from receiving compensation because at the time he quit his job, he was under medical restrictions and not able to perform the duties of his job. He argued that his departure could not be considered voluntary since he was under work restrictions. His argument was based on the Supreme Court of Ohio’s 1996 decision in State ex. rel. Pretty Products v Industrial Comm’n, in which the Court held that an injured worker who was injured at the time they left their employment could not be found to have voluntarily abandoned their employment.

On the other hand, Wingate argued that Hildebrand ended his employment for reasons unrelated to his work incident and thus his departure from employment which caused him to lose wages was not causally related to his work incident. The Supreme Court agreed and found that because Hildebrand could not demonstrate that his loss of earnings was due to his work incident, he did not meet the requirement for receiving temporary total disability compensation. In this case, it was undisputed that Hildebrand quit his job following a disagreement with his employer over a vehicle. The disagreement had nothing to do with his injury or work incident. Hence, the Court found that his departure from the workplace was not causally related to his industrial injury and he was not entitled to receive temporary total disability benefits.

The Supreme Court distinguished the facts in Hildebrand’s situation from several other cases including Pretty Products in which employees were found to be entitled to temporary total disability benefits after their employment ended. The Court found the distinction to be significant between situations involving employees who had been discharged from employment while receiving temporary total disability compensation and cases similar to Hildebrand, who voluntarily quit his employment. Ultimately, the Court stated it would be illogical to grant Hildebrand compensation when he voluntarily left his job due to reasons not related to his work injury.

The voluntary abandonment doctrine remains a viable defense to injured workers’ requests for temporary total disability compensation when an employee’s own actions take them out of the workforce rather than their work injury. Generally speaking, however, employers should remain diligent in working with employees who have been injured on the job to help them return to work.

No “friending” allowed – final resolution on Gawkers notice of class action participants via social media

Posted in Employment Class & Collective Actions, Social Media

We have reported on a federal court’s rulings related to plaintiff’s efforts in Mark v. Gawker Media LLC (S.D.N.Y.) to use social media to notify potential class action members here and here. On April 10 the court held that the class plaintiffs, former interns for the website Gawker, can use social media to notify potential members of their class, with certain restrictions. Plaintiffs are permitted to reach known former Gawker interns via social media with a message that is “substantially similar” to the message contained in traditional forms of notice sent in the case. The court, however, ordered that plaintiffs “unfollow” any interns on Twitter when the opt-in period closes unless the individual has chosen to opt in to the action. In addition, plaintiffs are not permitted to “friend” individuals on Facebook, as it could create a misleading impression of the individual’s relationship with plaintiffs’ counsel.

Sixth Circuit in EEOC v. Ford: Sometimes showing up really is an essential function of the job

Posted in EEO, Workforce Strategies

Almost a year ago, we wrote that a panel of the Sixth Circuit in EEOC v. Ford Motor Company, bucking the trend elsewhere, had held that an employer could be required to permit an employee to work from home as a reasonable accommodation for a disability. Last week, however, the entire Sixth Circuit, in an 8-5 decision, issued an opinion overturning the panel’s decision and finding that in-person attendance at the work site is generally an essential function of most jobs, particularly those that are interactive. The court recognized that advances in technology may mean that regular on-site attendance won’t be necessary for every job, but noted that the job of Jane Harris, on whose behalf the EEOC brought suit, as a resale buyer for Ford was not one that could be done from home.

Through the years, Ford had made numerous attempts to reasonably accommodate Ms. Harris, who suffered from irritable bowel syndrome, but none of these attempts, which included trials of telecommuting, were successful. Ultimately, Ms. Harris asked Ford to be permitted to work from home up to four days per week. The nature of her job, however, required teamwork, meetings with suppliers and stampers and on-site availability to participate in face-to-face interactions. These factors in the Court’s opinion all necessitated Ms. Harris to achieve regular and predictable on-site attendance. Accordingly, the Court upheld her termination from employment. Continue Reading

Big data in the workplace

Posted in Workforce Strategies, Workplace Privacy

I’m looking forward to joining my colleagues Dennis Hirsch and Jay Levine for a roundtable discussion of “Big data, data analytics and the law: What your company needs to know about the next big thing” on May 13. Here is a glimpse into what I plan to talk about from the employment lawyer’s perspective:

Even if we don’t know exactly how big data works, we know what it can do for us in our daily lives. Movie suggestions on Netflix. Targeted coupons at the grocery store. Cheap airfare and hotel rates. Facebook suggestions of people we may know. There is a certain creepiness to all of this but many (most?) of us seem willing to overlook it for the convenience and opportunities it provides.

Human resources departments now are figuring out how to use big data in the workplace. LinkedIn was one of the first businesses to recognize the value that data held for employers. At its most basic level, LinkedIn can steer its individual members to potentially attractive jobs that fit their profile and, for recruiters, it provides a rich database of candidates, including people who aren’t even looking for a new job. But there are a lot more than just recruiting opportunities. Companies like Knack now promote tests like Wasabi Waiter and Dungeon Scrawl that it claims will reveal job applicants’ talents, traits and skills to permit employers to identify the best candidate for their needs. JP Morgan Chase apparently has developed software that analyzes its own employees’ data to try to identify which ones are most likely to “go rogue,” so it has time to stop them before they do. Continue Reading

NLRB files complaint against postal service for not bargaining with union over effects of data breach incident

Posted in Labor Relations, Traps for the Unwary, Workplace Privacy

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”) apparently think that there should be an additional step when the data breach involves the personal information of employees who are covered by a collective bargaining agreement – bargaining over the effects of the data breach on, and the remedy to be provided to, the impacted employees.

The Regional Director for Region 5 of the NLRB in Baltimore, Maryland, filed a complaint against the Postal Service on March 31st alleging that the agency violated the NLRA by not bargaining with the union regarding certain information it requested when it was first notified of the data breach. Although the complaint made available to the press by the AWPU did not include the list of information it requested from the Postal Service, it presumably includes requests for information about the breach itself, whose information and what information was compromised, and the timeline between the breach and the notification. (The NLRB website does not yet include a copy of the complaint.) In addition, the complaint alleges that the Postal Service offered impacted employees one year of free credit monitoring and fraud insurance without first bargaining with the union about these benefits.

I understand and am not surprised that the union has taken this position since bargaining could lead to additional benefits for employees that are impacted by their employer’s data breach incident and I won’t be surprised if the NLRB ultimately agrees. The union’s position also, however, likely will lead to delays in getting their members the types of remedial measures they are going to want and need while the bargaining process is ongoing. Perhaps the unions’ time would be best spent working with their employer to make sure that their members’ personal information is adequately protected in the first place. They should probably also keep in mind that unions can be victimized by data breaches as well as employers.

Reminder to federal contractors and subcontractors: April 8th effective date for expanded discrimination protections

Posted in EEO, Traps for the Unwary

In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.

Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now must be included in the “Equal Opportunity Clause” in all covered federal contracts and subcontracts. The Equal Opportunity Clause may still be incorporated in contracts and notices to downstream contractors by reference, rather than setting it out in complete detail. Contractors who choose to use detailed equal employment language in job advertisements or solicitations must now include sexual orientation and gender identity. However, contractors are permitted, instead, as they have been in the past, to use the more general reference “equal opportunity employer.” The OFCCP intends to revise the mandatory “Equal Employment is the Law” federal poster but has not done so as yet.

Although sexual orientation and gender identity have been added to the classifications protected under affirmative action law, there are certain affirmative action law obligations which do not apply to these classifications. Contractors are not required to solicit self-identification from applicants or employees concerning sexual orientation or gender identity. Contractors are not required to do a statistical analysis of availability for or establish goals concerning sexual orientation or gender identity. Contractors are also not required to develop specific outreach or recruiting efforts concerning these classifications, though the OFCCP does encourage doing so as a means to expand the contractor’s pool of qualified candidates.

Here is a link to the OFCCP’s “Frequently Asked Questions” about the expanded protections.

The U.S. Securities and Exchange Commission brings its first whistleblower enforcement action based upon an allegedly overbroad employee confidentiality agreement

Posted in Traps for the Unwary, Workplace Privacy

The U.S. Securities and Exchange Commission (SEC) has now brought its first whistleblower enforcement action against a publicly traded company under the Dodd-Frank Act of 2010 for utilizing an overly broad employee confidentiality agreement. Specifically, the SEC alleges that KBR, Inc., has violated the Act by implementing employee confidentiality agreements that “potentially discouraged” employees from becoming whistleblowers by reporting misconduct to the SEC. This is illegal under the Act, and specifically under SEC Rule 21F-17 which prohibits employers “from taking measures through confidentiality, employment, severance or other type of agreements that may silence potential whistleblowers before they can reach out to the SEC.”

The company’s confidentiality agreement at issue made it a disciplinary offense for an employee to discuss internal investigations with outside parties, even governmental agencies, without first obtaining approval from the company’s legal department. The SEC viewed this language as possibly discouraging employees from becoming whistleblowers even though there was no evidence that KBR had ever used the agreement in that manner. The company claimed that the confidentiality agreements were used to preserve attorney-client privilege in internal investigations and claimed that “it never dawned on us” that this type of agreement might violate SEC rules. The SEC, however, took a broad interpretation and viewed the agreements as having a “chilling effect.” The company settled without admitting or denying that it violated the Act, but agreed to pay a fine and to revise its confidentiality agreements to explicitly state employees are still free to report alleged misconduct to the SEC or other federal agencies without company approval.

In a statement on the settlement, the SEC whistleblower enforcement chief advised that “[o]ther employers should similarly review and amend existing and historical agreements that in a word or effect stop their employees from reporting potential violations to the SEC.” Indeed, the SEC whistleblower enforcement chief previously admitted that he had been looking to bring an enforcement action against a company for overbroad employee confidentiality agreements in order to emphasize the issue. In fact, he indicated that “severance agreements, confidentiality agreements, and employment agreements” with overly broad confidentiality provisions were all targets, even if they do not explicitly state “you can’t report this to the SEC.”

Publicly traded companies that have confidentiality clauses in written agreements with its employees will want to revisit the agreements and determine if they must be amended due to the SEC’s broad interpretation of what constitutes a “chilling effect” in violation of SEC Rule 21F-17.

The NLRB is prepared for its new election rule, are you?

Posted in Labor Relations

The NLRB’s controversial “quickie election” rule is slated to take effect April 14, 2015. That’s next week! Two lawsuits filed by employer groups in January to block the rule are pending in separate federal courts of appeals. However, absent a “hail Mary” ruling by one of these courts, employers have to ask themselves if they are prepared for the NLRB’s new election rule that takes effect next Tuesday.

The NLRB’s General Counsel (“GC”) has taken further steps to ensure that his office is ready. On April 6, 2015, NLRB GC Richard F. Griffin, Jr. issued a 36-page guidance memorandum to ensure that all of the NLRB’s Regional Offices will be prepared to implement the election rule changes immediately on their effective date. The guidance states more than once that neither the final rule nor the guidance memorandum establishes new timeframes for conducting elections. However, the impact of the changes are clearly evident from other specific statements in the guidance. For example, the “Direction of Election” section of the guidance underscores that, “absent extraordinary circumstances,” an employer must provide the voter list to the regional director within 2 business days after the issuance of a direction of election. Elections could then be scheduled to be conducted 10 days after the voter eligibility list is provided, or shorter, if all parties consent.

As we have previously reported in December 2014 and February 2014, the impact of the new election rule will be to significantly shorten the period between when a petition for an election is filed and when the election is held. Many employers were able to use that time to turn the tide on pro-union sentiments within the voting group. That opportunity will be greatly reduced, perhaps cut in half, under the new rule. Employers will need to be more proactive to prevent union organizing sentiments from gaining traction within their workforce and less reactive to union organizing if they wish to remain nonunion under the new election rule.