In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.)  As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer.  Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.

As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it.  Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims?  Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information?  According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim.  Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.

 Continue Reading Will GINA Impact Ohio Employers’ Ability to Conduct Medical Investigations In Workers’ Compensation Claims?

Earlier this week, we reported on a New York Times article about employer efforts to address the impact of prescription drugs in the workplace. The article profiled workers at the Dura Automotive Systems Inc. plant in Lawrenceburg, Tennessee who were terminated for testing positive for prescription drugs that Dura considered to raise safety issues. Yesterday, the Sixth Circuit

On November 2, 2010, the NLRB issued a press release reporting that its Hartford, Connecticut, regional office had issued a Complaint alleging that American Medical Response of Connecticut, Inc., (“AMR”) had published an overly broad blogging and Internet posting policy that violated employee Section 7 rights, and then illegally fired an employee for negative posts about a supervisor.

As described in the Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. Such provisions, according to the NLRB’s Complaint, constitute a violation of 8(a)(1) of the National Labor Relations Act because they interfere with employees’ right to engage in protected concerted activity under Section 7 of the NLRA. (The NLRB and courts typically interpret Section 7 as protecting employees’ right to discuss the terms and conditions of their employment with other employees or even non-employees.)  The NLRB also alleged that the employer illegally fired an employee pursuant to that policy for posting negative remarks about a supervisor on Facebook, which the NLRB said drew supportive remarks from her co-workers.

 Continue Reading NLRB Issues Complaint In Facebook Firing Case

While most employment lawyers, myself included, have been focusing lately on the opportunities and risks associated with monitoring new technologies such as social media and GPS devices, the Seventh Circuit reminds us that employers also need to remember that “low-tech” monitoring of employees can result in unexpected liability as well.
Continue Reading Low-Tech Monitoring of Employees Can Result In Employer Liability

No, this is not – for those of you old enough to remember I Dream Of Jeannie ­– Major Anthony Nelson suing NASA after all these years.  Instead, a group of Caltech employees assigned to work at NASA’s Jet Propulsion Lab (“JPL”) in California sued NASA when the federal agency insisted that they submit to background checks after, in many cases, having worked there for 20+ years or resign their employment.  The Supreme Court will address the question whether NASA violated the plaintiffs’ constitutional right to informational privacy by (1) requiring the contract employee to answer whether he or she had received counseling or treatment for illegal drug use in the prior year and/or (2) asking the contract employees’ designated references for any adverse information bearing on their suitability to work at a federal facility. 

The case is before the Supreme Court on NASA’s petition for review of the Ninth Circuit’s decision granting a preliminary injunction barring the government from implementing its background checks at JPL.  Oral argument is scheduled for October 5, 2010.Continue Reading U.S. Supreme Court to Hear Arguments in NASA v. Nelson

We are starting to see an increase in the number of news articles reporting on health care facilities terminating employees for violating patient privacy on their facebook pages or other social media.
Continue Reading Recent Terminations Highlight Need For Health Care Employers To Focus On Employee Education Regarding Social Media

In June, the United States Supreme Court issued its opinion in City of Ontario v. Quon, siding with the City and its officials in a workplace electronic monitoring case closely followed by employers and their counsel. The Court reversed the Ninth Circuit Court of Appeals’ opinion, holding the government employer’s search of a police officer’s personal and work-related text messages on an employer-issued pager was reasonable, and therefore the officer’s Fourth Amendment rights were not violated. (See our previous blog posting.)

Facts

The City of Ontario issued pagers to city employees, including police officers, for use in their jobs. The City, like most employers, had a written electronics communications policy that expressly prohibited personal use of its computers and notified employees that they had no expectation of privacy with respect to any communications using the City’s computer systems. The City’s policy, however, did not make clear that this policy applied to its pagers or to text messaging. Its contract with its service provider included a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. 

 Continue Reading U.S. Supreme Court Rules in Favor of Government Employer In Workplace Electronic Monitoring Case

It may be that it’s Monday morning as I write this but I have to admit I got a kick out of the news articles circulating late last week that reported that Goldman Sachs has revised its electronic communications policy to prohibit the use of any profanity in emails. The edict apparently results from emails that became public

While many human resources managers spend sleepless nights worrying about the negative things employees may be posting on the Internet about them, this post from our sister blog technologylawsource.com reminds us that the nice things they have to say can get employers into trouble as well. Lesson for employers: Make sure your social media policy