FMLA

Family and Medical Leave Act Update

Employer Postings and Notices

Employers must notify employees of their FMLA rights both by postings, and by including a notice of rights in any written guidance to employees, such as an employee handbook or personnel manual. Attached are the required FMLA poster, and the new "poster insert" for the new military leave rights. Both can be downloaded from the DOL website at: www.dol.gov/esa/whd/fmla/.

Any notice of rights in guidance to employees should include information concerning employee rights and responsibilities under the FMLA, as well as an explanation of the employer's policies related to the FMLA. The sample policy, below, is designed to satisfy that requirement. The sample policy summarizes some key aspects of the FMLA, such as the requirements for employee eligibility, the reasons for which an FMLA‑protected leave may be taken (including the new military leave rights), the statutory definition of "serious health condition," an employer's obligation to continue group health plan coverage and to reinstate employees on FMLA leave, and the employee notice, health‑care provider, and military leave certification requirements. The sample policy also contains examples of several policy choices that employers must make in administering the FMLA.

FMLA Military Leave

As noted, an addendum or poster-insert giving notice of the new FMLA military leave rights is attached and should be placed adjacent to the usual FMLA poster notice. New certification forms from the DOL are also attached for use in facilitating the certification requirements for military family leave.

Qualifying Exigency Leave is a new military leave right which helps employees with a family member in the National Guard or Reserves manage their affairs while the member is on active duty or called to active duty in support of a contingency operation. This makes the normal 12-week FMLA leave available to be used for a "qualifying exigency." More specifically, it allows an employee with a spouse, son, daughter, parent of next of kin on active duty (or one who has been notified of an impending call or order to active duty) to take up to twelve weeks of FMLA leave when there has been a "qualifying exigency." The Department of Labor's final rule defines a qualifying exigency by referring to some broad categories for which such leave can be taken:

Short-notice deployment;

Military events and related activities;

Childcare and school activities;

Financial and legal arrangements;

Counseling;

Rest and recuperation;

Post-deployment activities; and

Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

It is important to remember that these activities must be related to being on, or being called to active duty, and that ordinary regular routine matters do not qualify. Also, any leave taken by an eligible employee for one or more of these reasons is counted against that employee's annual 12-week FMLA leave entitlement.

The new Military Caregiver Leave (also known as the Covered Servicemember Leave), now allows employees to take up to 26 weeks of leave to care for a family member who is a Covered Servicemember with serious illness or injury incurred in the line of duty or on active duty. The definition of Covered Servicemember is quite broad, and includes a spouse, son, daughter, parent, or 'next of kin' who is a member of the armed forces and who is undergoing medical treatment, recuperation, or therapy, is otherwise on outpatient status or is otherwise on the temporary disability retired list, due to a serious injury or illness sustained in the line of duty on active duty. Note that for the new military leave for providing care to a covered Servicemember, the leave must be taken within a single 12-month period beginning with the first day of leave, a concept different than the traditional "leave year" for other types of FMLA leave. Eligible employees utilizing the Military Caregiver Leave are entitled to a combined total of up to twenty-six (26) weeks for all types of FMLA leave.

Leave year

The sample policy defines the FMLA leave year as the year beginning on the date in which the employee first takes any FMLA‑protected leave. Employers have broad discretion in defining the leave year, provided that they employ the same method for all employees. Employers may define their FMLA leave year as the calendar year, the company's fiscal year, the year beginning on the employee's anniversary date of employment, or the date on which the employee first takes any FMLA‑protected leave. The employer also may elect to use what the FMLA regulations define as a rolling leave year, in which the employer measures backwards 12 months from the date the employee takes any FMLA leave. Whichever method is selected, the leave year should be defined in the employer's policy. It is likely the leave year will be calculated on a different calendar than the single 12-month period for the Military Caregiver Leave, and the regulations provide helpful examples on how these are reconciled.

Notice and certification requirements

Another decision that employers must make is the extent to which they wish to impose the notice and health‑care‑provider certification requirements upon employees. The sample policy represents the maximum obligation employers may impose for foreseeable leave. Some employers, however, may elect to require less of their employees, as for example by requiring only 15‑days' advance notice of the need for foreseeable FMLA leave rather than 30.

Employees may be required to follow the employer's usual and customary call-in procedures for requesting foreseeable leave, absent unusual circumstances. For example, employers may require employees to set forth reasons for the requested leave, the expected duration of the leave, the anticipated start date of the leave, and may require employees to contact a specific individual. In any event, if an employee needs to give notice of leave that is foreseeable but less than 30 days in advance, notice must be given as soon as practicable. An employee needing qualifying exigency FMLA leave must be given as is practicable too. It generally should be considered practicable to give notice under the usual and customary method and timing for reporting an absence, such as a sick-call number.

With respect to the health‑care‑provider certification requirement, the U.S. Department of Labor has prepared a form that may be given to employees to be used by their doctors in certifying a serious health condition under the FMLA (see attached). Employers may choose to use their own form instead, or may simply identify in the policy the specific information to be provided by the doctors. If a medical certification is incomplete the employer must put in writing what information is needed, and give the employee seven days to cure the deficiency before denying leave or asking for other certification. Under no circumstances should a direct supervisor of the employee contact the health-care provider; rather, it should be done by HR, a management level employee, leave coordinator or health care provider.

Employers may require "return to work" or "fitness for duty" certification stating whether the employee can perform the essential functions of the job (see attached). Employers can also require an employee provide a fitness for duty certification before returning from intermittent leave if the employer has reasonable concerns about the ability to perform the job safely. Employers must notify employees at the time their FMLA leave commences if they want to require such certifications before returning to work.

Serious health condition and continuing treatment redefined

The regulations issued by the U.S. Department of Labor include a complex and comprehensive definition of "serious health condition" not fully contained in the sample policy. As explained in the policy, a "serious health condition" is defined as any injury, illness, impairment, or physical or mental condition requiring either inpatient care in a medical facility, or for "continuing treatment" by a health‑care provider. "Continuing treatment" is further defined as including: a) incapacity and treatment, b) pregnancy or prenatal care, c) chronic conditions, d) permanent or long-term conditions, and e) conditions requiring multiple treatments. The Final Regulations make some changes, revising the definition of a "serious health condition" in certain respects.

In order to qualify as "continuing treatment" for a serious health condition, any "incapacity and treatment" must now involve incapacity for more than three consecutive calendar days, and any subsequent treatment or incapacity relating to the same condition must involve: 1.) treatment by a health care provider (or nurse or person under a provider's supervision or on orders of a provider, such as PT) two or more times within 30 days of the first day of incapacity (unless there are extenuating circumstances as defined in the regulations); or 2.) treatment by a health care provider at least once which results in a regimen of continuing treatment under supervision of a health care provider. The first day of such subsequent treatment under either 1.), or 2.), above, now has to take place within 7 days of the first day of incapacity.

Any period of incapacity due to pregnancy or for prenatal care is considered continuing treatment for a serious health condition.

To qualify as continuing treatment of a serious health condition, incapacity due to chronic conditions must now involve the employee visiting a health care provider for the condition at least twice per year, the condition must continue for an extended period of time, and may involve episodic incapacity (e.g., asthma, diabetes, epilepsy, etc.). This is a new requirement under the regulations.

Continuing treatment also includes conditions causing long‑term or permanent incapacity and any period of absence to receive multiple medical treatments from a health‑care provider. Periods of incapacity due to Alzheimers, a severe stroke, the terminal stages of a disease and the like, qualify as permanent or long-term conditions requiring continuing treatment for a serious health conditions. Absences due to conditions of multiple treatment for restorative surgery after an accident or other injury, or treatment for conditions that would likely result in incapacity of more than three consecutive calendar days in the absence of treatment such as cancer (chemotherapy, ratiation, etc.) severe arthritis (PT), or kidney disease (dialysis) qualify.

Common colds, flu, earaches, and non‑migraine headaches are not serious health conditions, and routine physical, eye, or dental examinations are not within the scope of the continuing treatment concept.

Substitution of paid leave

Employers have discretion regarding whether to require employees to take any accrued and unused paid vacation leave, personal leave, or, if applicable, family or sick leave, concurrently with taking the FMLA leave. If the employer requires the employee to take such paid leave, that leave may be counted towards the employee's FMLA leave. If an employer elects not to require employees to take this leave, as in the sample policy, employees must at least be allowed to use such paid leave at their option, which again may be counted towards the FMLA leave available to the employee. An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer's policy that apply to other employees for the use of such leave. Whatever rule the employer chooses, it should be included in the FMLA policy

Additional FMLA rules

Additional rules also exist under the FMLA concerning highly compensated key employees, the leave rights of spouses employed by the same employer, waivers and releases, and the process for challenging certifications provided by an employee. Additional information concerning these issues, as well as other questions concerning the FMLA, may be answered in Department of Labor publications or by your attorney.

THIS POLICY IS LEGALLY ESSENTIAL

SAMPLE POLICY

ABC Company, Inc. complies with all applicable federal and state labor and employment laws, including the Family and Medical Leave Act of 1993 (FMLA). Under the FMLA, eligible employees are entitled to certain rights, and have certain obligations, with respect to unpaid leave for certain family and medical reasons.

FMLA Leave Eligibility

An eligible employee under the FMLA is an employee who has been employed by ABC Company for at least twelve (12) months, who has worked at least 1,250 hours in the past 12 months, and who works at a facility in which at least fifty (50) employees are employed by the Company either at that facility or within seventy-five (75) miles of that facility. Returning Servicemembers are given credit for any months or hours of service they would have been employed but for their military service.

Reasons for FMLA Leave

1. An eligible employee may take FMLA leave of up to twelve (12) weeks per leave year, for any of these different reasons:

• to care for a newborn child, or a child newly placed in the employee's custody through adoption or foster care for a period of up to one (1) year after such birth or placement;

• to care for the employee's spouse, child, or parent who has a serious health condition; or

• because of the employee's own serious health condition if that condition renders the employee unable to perform his or her job functions;

• because of any Qualifying Exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.

2. Covered Servicemember Leave. An eligible employee may take up to twenty-six (26) weeks of leave during a single 12-month period if the employee is needed to care for a spouse, son, daughter, parent, or 'next of kin' who is a covered Servicemember, meaning a current member of the Armed Forces, including a member of the National Guard or Reserves, who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or is otherwise on outpatient status; or is otherwise on the temporary disability retired list.

Serious Health Condition

For the purpose of determining whether an eligible employee or his or her spouse, child, or parent has a serious health condition, such a condition includes any injury, illness, impairment, or physical or mental condition that requires either in‑patient care in a medical facility (i.e., overnight hospitalization), or continuing treatment by a health‑care provider. These terms are construed by the Company in accordance with applicable federal laws and regulations.

Qualifying Exigency

A Qualifying Exigency can arise in situations involving short-notice deployments, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and for post-deployment activities.

Serious Illness or Injury

For the purposes of this policy, a "serious injury or illness" means an injury or illness incurred by a covered Servicemember in the line of duty on active duty that may render the Servicemember medically unfit to perform the duties of his or her office, grade, rank or rating.

Leave Year

For the purpose of this policy, the leave year within which an eligible employee may take his or her twelve (12) weeks of FMLA‑protected leave means the twelve (12) month period beginning on the date the employee first takes leave for any of the reasons set forth previously. However, the "single 12-month period" for leave to care for a covered Servicemember begins on the first day the eligible employee takes FMLA leave to care for the injured Servicemember. Any leave taken by an eligible employee for one or more of qualifying FMLA reasons will be counted against that employee's annual FMLA leave entitlement. Eligible employees are entitled to a combined total of up to twenty-six (26) weeks for all types of FMLA leave during the single 12-month period. For example, an eligible employee who has taken 16 weeks to care for a covered Servicemember may only take 10 additional weeks to care for a newborn child during the single 12-month period.

Compensation for FMLA Leave

Generally, FMLA leave is not paid. However, an eligible employee may elect to take any accrued paid vacation leave or, for personal medical leave, paid sick days in lieu of taking unpaid leave under the FMLA. Such paid leave will be counted towards the employee's twelve (12) weeks of FMLA leave granted per leave year.

Intermittent or Reduced Hours Leave

In the case of leave taken to care for a seriously ill spouse, child, or parent, due to the employee's own serious health condition, an employee may take leave intermittently (i.e., periodically) or on a reduced hours schedule (i.e., reduced number of working hours per day or per week) only when such leave is medically necessary, as certified by the employee's or family member's health‑care provider. Covered Servicemember Leave and Qualifying Exigency Leave, may also be taken on or intermittent or reduced leave schedule basis. Otherwise, such leave is not permitted except at the sole discretion of the Company. An employee who takes leave intermittently or on a reduced leave schedule may be temporarily transferred to another position for which the employee is qualified to better accommodate that leave.

Job and Benefits Security

An eligible employee who takes leave under the FMLA and who returns to work before his or her annual FMLA entitlement has expired will be restored to the position he or she held when the leave commenced, or to an otherwise equivalent position with respect to pay, benefits, and other terms and conditions of employment, unless the employee would no longer have been employed in such a position had the employee not taken such leave. Additionally, any unused employment benefits that had accrued to an eligible employee prior to the commencement of leave will be restored upon return from FMLA leave.

Continuation of Group Health Plan Coverage

Group health plan coverage will be maintained by ABC Company during an eligible employee's period of FMLA leave to the extent and under the same circumstances as it ordinarily is furnished to that employee. Premium payments should be made to the Human Resources Office on the 1st and 15th of each month. The Human Resources Manager will notify eligible employees concerning the amount of each premium payment. Failure to pay such premiums during leave may result in the loss of health coverage. An eligible employee who fails to return to work after the expiration of the FMLA leave period for reasons that are not beyond his or her control will be expected to reimburse ABC Company for health‑care premiums paid by the Company during the leave period.

Employee Notice Requirements

An eligible employee generally must give the Company at least thirty (30) days' notice of his or her intent to take leave under the FMLA. If the employee is unable to give such notice because the need for leave is not foreseeable or is due to a qualifying exigency, then the employee must give as much notice as practicable. Typically, this will mean giving notice to the Company within one or two working days of learning that FMLA leave must be taken. Any employee who fails to give the requisite notice may be delayed in receiving authorization for leave.

Health‑Care‑Provider Certification

In cases of leave to be taken to care for a seriously ill family member or due to the employee's own serious health condition, an eligible employee must provide the Company with a completed and signed health‑care‑provider certification indicating that the employee requires FMLA leave. This certification must be returned to the Company within fifteen (15) days after the employee gives notice of his or her intent to take FMLA leave, and must contain the following information:

• the date on which the serious health condition commenced;

• the probable duration of the condition;

• the treatment regimen prescribed;

• any appropriate medical facts within the health‑care‑provider's knowledge regarding the condition;

• if applicable, a statement that the employee is needed to provide care for his or her spouse, child, or parent and an estimated duration of such need; and

• if applicable, a statement regarding the medical necessity of intermittent or reduced hours schedule leave.

Failure to return this certification in a timely manner may result in delays in securing authorization for leave, and failure to return the certification at all will preclude the employee from taking leave.

The Company also may require, at its own expense, a second and third health‑care provider opinion if there is a question as to the validity of the certification provided by the employee.

An eligible employee also may be asked to furnish the Company with subsequent health‑care‑provider certifications on a reasonable basis during the employee's leave period. An eligible employee's failure to furnish subsequent certifications may result in termination of the employee's right to leave.

An eligible employee on FMLA medical leave must submit to the Company a medical release (i.e., fitness‑for‑duty certification) indicating that the employee is able to return to work. Failure to submit such a release will preclude the employee from being restored to his or her employment with the Company.

Qualifying Exigency Leave Certification

ABC Company requires an employee seeking FMLA leave due to a qualifying exigency to submit a completed and signed certification, describing the reason for the leave, the amount of leave needed, and information about any meeting you may be attending, if any, so that ABC Company can verify accuracy. You will also be required to supply written documentation confirming a covered military member's status as active duty or a call to active duty status in support of a contingency operation.

Military Caregiver Leave Certification

ABC Company requires an employee seeking FMLA leave due to a serious injury or illness of a covered Servicemember to submit a completed and signed certification providing sufficient facts to support the request for leave. The certification will require written documentation confirming that the covered Servicemember's injury or illness was incurred in the line of duty on active duty and that the Servicemember is undergoing treatment for that. The health-care provider will need to certify the care to be provided the Servicemember, an estimate of the time needed to provide it, the medical condition of the Servicemember, and other facts about the care.

Nondiscrimination/Nonretaliation Policy Statement

ABC Company will not: (1) interfere with, restrain, or deny the exercise of any right provided under the FMLA; (2) discharge or discriminate against any person for opposing any practice made unlawful by the FMLA; or (3) discharge or discriminate against any person for his or her involvement in any proceeding under or relating to the FMLA.

Kevin R. McManaman

krm@knudsenlaw.com

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

Lincoln, NE 68502

402/475-7011 (office)

402/475-8912 (fax)

402/440-2982 (cell)

www.knudselaw.com

When is a healthcare facility liable for resident on resident assaults?

On September 26, 2008, the Nebraska Supreme Court made that determination in Marilynn Ehlers v. State of Nebraska, 276 Neb. 605 (2008).  In that case, a woman, Ehlers, was assaulted by another patient at the Hastings Regional Center.  Ehlers argued that the Regional Center had a duty to prevent the assault.  The Supreme Court disagreed setting forth the test as follows:

 

There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a)    a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b)    a special relation exists between the actor and the other which gives to the other a right to protection.

 

                The Court clarified the test in a residential patient situation as:

 

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

(a)    knows or has reason to know that he has the ability to control the conduct of the third persons, and

(b)    knows or should know the necessity and opportunity for exercising such control.

 

                The Court ruled against Ehlers because there was no evidence that the “HRC staff knew or should have known that L.S. was about to harm Ehlers and therefore should have immediately taken action to protect Ehlers from L.S.”

 

 

Jeanelle R. Lust

jlust@knudsenlaw.com

 

www.knudsenlaw.com

 

 

Velazquez Linares v. U.S. 2008 WL 4838130 (1st Cir. 2008)

Sometimes a case is notable, not because of any legal principle espoused, but simply because it is very well- written. This case qualifies:

On February 10, 2006, plaintiff-appellant Maria Velázquez Linares slipped and fell while a patron at the post office in Cataño, Puerto Rico. Neither the details surrounding her fall nor the extent of her injuries and damages are germane to this appeal. Instead, we fast-forward to March 3, 2008, when the plaintiff sued the United States and others under the Federal Tort Claims Act, 28 U .S.C. §§ 1346(b), 2671-2680.

The plaintiff duly filed her paper complaint in the district court. The Clerk issued a notice on March 13 stating that the case was subject to the electronic case management system. That is relevant because the court had in place a standing order-Standing Order No. 1-providing in pertinent part that, in such cases, “parties shall promptly provide the Clerk with electronic copies of all documents previously provided in paper form.” The plaintiff did not furnish an electronic copy of her complaint. On March 24-three weeks after the commencement of the suit-the district court, acting sua sponte, dismissed the action without prejudice. The court at the same time fined plaintiff's counsel $150 as a sanction.

The plaintiff filed the complaint electronically five days later and moved for reconsideration. In that motion, her counsel explained that electronic filing had not been accomplished earlier because of a malfunctioning computer in his law office. Counsel attached a statement from a computer technician who verified the malfunction and related that he had been hired to repair the defect on March 22.

The district court denied the motion for reconsideration without comment on April 2. The next day, the plaintiff docketed a notice of appeal. The district court responded by issuing a nunc pro tunc electronic order noting that “even if counsel's computer malfunctioned, he waited too long to cure his noncompliance with Standing Order No. 1.”

[1] [2]We need not tarry. When a trial court is faced with a violation of a court order, it may choose from a “broad universe of possible sanctions.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.2002). Each case is sui generis. Thus, in making the choice of a condign sanction, the court must give individualized consideration to the particular circumstances of the case. Id. We review the court's order for abuse of discretion. Id.

[3] Dismissal is among the most severe of sanctions, and it should not be imposed without good reason. See Young v. Gordon, 330 F.3d 76, 81 (1st Cir.2003) (explaining that “dismissal should not be viewed either as a sanction of first resort or as an automatic penalty for every failure to abide by a court order”). The district court in this case believed that dismissal was appropriate because the plaintiff had transgressed Standing Order No. 1. Under the totality of the circumstances, we find that conclusion problematic.

[4] Standing Order No. 1 does not provide a set time within which a party must furnish an electronic copy of a pleading previously filed in paper form. The order merely recites that the electronic copy shall be supplied “promptly.” That term has a protean quality; what is “prompt” in one person's mind may not be “prompt” in another's, and what is “prompt” in one set of circumstances may be laggardly in a different set of circumstances. Given this uncertainty, we think it ordinarily would require the passage of more time than elapsed here to warrant sua sponte dismissal, without prior notice, on such a ground. See Velázquez- Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1076 (1st Cir.1990); cf. Rosario-Díaz v. González, 140 F.3d 312, 315 (1st Cir.1998) (noting that “litigants have an unflagging duty to comply with clearly communicated case-management orders”) (emphasis supplied).

*2 The district court, of course, had two easily available alternatives. First, the court as an institution could have used a fixed time parameter in place of “promptly.” Second, the court in this case could have called the plaintiff's attention to Standing Order No. 1, demanded compliance within a specified time frame, and then taken action if that demand had gone unrequited. See, e.g., Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4-5 (1st Cir.2002) (approving use of show-cause order in analogous circumstance). Here, however, the record on appeal contains no indication that the court afforded any forewarning of this sort to the plaintiff.^FN1

Were there aggravating circumstances, the situation might be more fluid. See, e.g., Cósme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir.1987). But in this case, the record reflects none. For aught that appears, plaintiff's counsel is a first-time offender; there is not the slightest whiff of bad faith, contumacious conduct, or habitual procrastination on his part. Moreover, he presented a plausible justification for the failure to furnish an electronic copy of the complaint more celeritously-and the district court did not question the truth of this explanation.

Jeanelle Lust

jlust@knudsenlaw.com

www.knudsenlaw.com

Patient Safety & Abuse Act one Step Closer to Passing

The U.S. Senate Finance Committee gave unanimous approval to the Patient Safety & Abuse Prevention Act on September 10, 2008. Chairman of the Senate Special Committee on Aging, Herb Kohl, D-Wis., introduced the legislation on June 7, 2007. Senator Kohl urged swift action by the full Senate before it adjourns again.

The sponsors of the bill state it will address issues related to background checks, as employers are not always able to find out if an applicant has a history of patient abuse or violent crime. It would also expand a pilot program that was initially started in 2003 in seven states and create a background check system that screens job applicants at long-term care facilities.

Nebraska already requires screening, but in going nationwide, the system would coordinate abuse and neglect registries and law enforcement records from each state with the FBI’s national database of criminal history records. If the bill passes, a nursing home would be required to screen all persons applying for positions that have direct contact with patients and presumably negative findings from other states would be easily identified. Anyone with a conviction for a violent crime or substantiated findings of abuse would be disqualified from holding such a job.

If a nursing home fails to perform the screening or if it knowingly employed a disqualified person in a direct care position, it could face penalties, including exclusion from the federal Medicare and Medicaid programs.

A budget amendment setting aside $160 million over 3 years will fund the background screening. Senator Pete Domenici, R-N.M. and co-sponsor of the bill, stated that this piece of legislation is important in providing safe-guards to protect our elderly and disabled.

Tammy J. Schroeder

tjs@knudsenlaw.com

http://www.knudsenlaw.com/

WHAT TO DO WHEN AN EMPLOYEE REPORTS AN INJURY

 

            Sooner or later just about every employer will need to deal with a workers’ compensation injury; in other words, an injury that is alleged to be within the course and scope of employment.  The employee is under a statutory obligation to give notice of any claimed injury “as soon as practicable.”  However, that is loosely interpreted and if an employer is, for example, aware that an employee needs time off to go to a doctor for a particular condition, and it is a condition that could even potentially be work related such will likely be sufficient notice even though the employee has not made any specific statement that such condition is work related.  If there is any potential that such condition could be work related, it behooves the employer to inquire further.

            The following are some suggestions for employers when handling workers’ compensation claims:

1.     Train all employees that they have the obligation to notify their immediate supervisor if they have any type of injury while working.  The supervisor should make it a practice to document all such information in one central location so that if the question of whether notice was given, and what the notice consisted of, becomes an issue later, they can verify whether or not such a report was made without having to rely solely on memory.

2.     If the injury looks like it is at all significant, it would be wise to have one person designated as the individual the supervisors or employees should then notify.  Certainly this should be done if the injury may potentially require any doctor’s visit or medical treatment.  Having one person designated to receive all such reports is helpful as there are various documents to fill out and notifications to be made so it is difficult for numerous supervisors, who most likely rarely handle such matters, to be fully trained on what needs to be done.

3.     The person who is designated to receive this type of notification, should ascertain whether immediate medical care is needed and obtain such if necessary.  They should interview the employee and find out the following information:  what happened, when did it happen, the names of all witnesses, the precise symptoms, and the precise area of the body involved.  The last fact is important since injuries to the head and torso are compensated differently than injuries to an extremity.

4.     An accident report should be filled out by the designated person receiving the report after talking to the injured employee.  Such should be signed by the injured employee. 

5.     There is also a Rule 50 choice of physician form that needs to be presented to the employee before any medical treatment is sought if possible.  If such is not done, the employee is free to choose any physician they may want whether they have ever seen that doctor before or not.

6.     Notice of the injury should be given to the employer’s workers’ compensation insurer in accordance with the particular insurance policy. 

7.     The insurer will then be in a position to give guidance as to whether the employer or the insurer will fill out the required First Report of Alleged Occupational Injury or Illness.  This Report must be filed with the Workers’ Compensation Court within ten days of the date of the notice of injury.  The injured employee is not responsible for filing this report, rather it is the employer’s or insurer’s responsibility.

8.     It is best to keep an injured employee working within the physical restrictions given by the doctor, even if only at part-time light duty, if at all possible.  The temporary disability benefits that must be paid under workers’ compensation are less if this is done but even more importantly, it keeps the employee engaged with their co-workers and their work and generally helps make an eventual return to work at their regular job more likely.

Finally, if it appears that the employee will not be able to return to work after a workers’ compensation claim, the employer must proceed with caution before terminating the employment.  Nebraska is an “at will” state, which means that the employment relationship only lasts as long as both the employer and employee want it to continue and either is free to end it for any reason as long as it is not due to an improper reason such as age, gender, etc.  However, the Nebraska Supreme Court has determined the employee has a separate tort action outside of any workers’ compensation action that can be brought in district court if their employment was terminated, or they were demoted, because they filed a workers’ compensation claim.  Jackson v. Morris Communication Corp., 265 Neb. 423, 657 NW 2d 634 (2003); Trosper v. Bag ‘N Save, 273 Neb. 855, 734 NW 2d 704 (2007). Therefore, an employer that terminates employment or demotes an employee after a workers’ compensation claim is filed will need to be absolutely sure it is well documented that such was not due to the filing of the claim itself.  If the employer cannot accommodate permanent restrictions, there is no requirement under this retaliation case law that the employee continue on the payroll but it should be clearly documented that this is the reason for the termination for employment.  Litigation may well arise whenever an injured employee’s job is terminated in this situation, and even though the employer knows such was not done in retaliation for filing a workers’ compensation claim, there will need to be sufficient evidence to convince the trier of fact of that as well.

 

Shirley K. Williams

skw@knudsenlaw.com

www.knudsenlaw.com

 

Senate advances two bills of importance to Nursing Homes.

 

             Two bills , the Elder Justice Act, S. 1070 and the Patient Safety and Abuse Act, S. 1577,  passed the Senate committee charged with passing on the bills to the full Senate.  The House committees had previously advanced the bills.

The Elder Justice Act would make $777 million in federal money available to government agencies and community programs that handle elder-abuse issues, establish a program to improve forensic investigation of crimes involving elder abuse, and impose stricter requirements for reporting criminal violations by long-term-care facilities and their staffs.   The bill also would create a council to coordinate the response of federal, state and local agencies to incidents of elder abuse and an advisory board composed of experts to develop a multidisciplinary plan to prevent crime against the elderly.

      The Patient Safety and Abuse Act sets up a nationwide data base for background checks on staff employed in the Nursing Home industry.   The new nationwide system would coordinate abuse-and-neglect registries and law enforcement records from each state with the FBI's national database of criminal history records.   If the bill is adopted, a nursing facility must conduct background checks of all applicants for positions with direct access to patients before hiring them.  Nursing facilities that fail to conduct the screening or knowingly employ a disqualified person in a direct-care position would face penalties, including exclusion from participation in the federal Medicare and Medicaid programs.

 

 

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with thanks to Andrews Nursing Home Reporter

 

The Guest Statute

If you are injured in an accident in which one of your relatives was driving, you should consult with an attorney about your ability to recover damages from the driver of the vehicle.  The guest passenger statute provides:

[t]he owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person related to such owner or operator as spouse or within the second degree of consanguinity or affinity who is riding in such motor vehicle as a guest or by invitation and not for hire, unless such damages is caused by (1) the driver of such motor vehicle being under the influence of intoxicating liquor or (2) the gross negligence of the owner or operator in the operation of such motor vehicle.

For the purpose of this section, the term guest is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefore but shall not be construed to apply to or include any such passenger in a motor vehicle being demonstrated to such passenger as a prospective purchaser.  Relationship by consanguinity or affinity within the second degree shall include parents, grandparents, children, grandchildren, and brothers and sisters.  Should the marriage of the driver or owner be terminated by death or dissolution, the affinal relationship with the blood kindred of his or her spouse shall be deemed to continue.

Neb. Rev. Stat. § 25-21,237 (Reissue 1995).

The guest passenger statute has been found by the Supreme Court of Nebraska to be constitutional.  See Le v. Lautrup, 271 Neb. 931 (2006).  Such constitutional challenge involved a challenge on the basis of due process, equal protection, and the special privileges and immunities clause of the Nebraska Constitution. Id. at 935. The court addressed the due process and special privileges and immunities challenges in short accord, but spent more time in addressing the equal protection challenge.  Id. at 935.  In finding that the state had a rational basis for enacting the statute, that of the prevention of family collusion and fraud, the Court referred to an Indiana Court of Appeals opinion.

[T]he legislature may have perceived a greater risk of collusive lawsuits among family members, than among mere acquaintances.  Also, a jury may be particularly inclined to indulge in the “Robin Hood” tactic of robbing from the “rich” insurance companies to give to the “poor” victims where the parties are from the same family.

Id. at 938.

Other than constitutional challenges, the litigation with regard to the application of this statute happens most often in the context of exactly what the term “gross negligence” means.  Gross negligence is a moving target.

It must be borne in mind, always, that no decision on gross negligence can constitute an absolute precedent in any other case.  Each case necessarily differs somewhat in its particular facts and circumstances, and in the composite which results from them.  A dissection of the individual facts may, therefore, be misleading, because, in the attempted segregation, part of their real significance may become lost.  While it may be regrettable that no perfect yardstick for measuring gross negligence has ever been devised, the numerous decisions, which the guest statutes have produced, seem rather clearly to demonstrate that this is as close to possible to come to a judicial solution.

Klundt v. Karr, 261 Neb. 577, 582, 624 N.W.2d 30, 34 (2001) (quoting Liston v. Bradshaw, 202 Neb. 272, 275 N.W.2d 59 (1979)).  The Court acknowledged that most of the cases brought under § 25-21,237 and its predecessor dealt with intoxication, speed, failure to maintain lookout, and failure to control.  See Klundt, 261 Neb. at 583-5, 624 N.W.2d at 34-5 (citing Larson v. Storm, 137 Neb. 420, 289 N.W.2d 782 (1940) (plaintiff’s complaint that defendant was driving too fast, coupled with accident occurring when defendant hit a cement pipe after failing to make a slight turn, left question as to gross negligence); Jennings v. Lowrey, 168 Neb. 831, 97 N.W.2d 345 (1959) (reasonable minds could differ as to whether defendant’s actions in driving in excess of 60 to 70 m.p.h. around a curve in the middle of the night, causing the car to leave the road and roll, was gross negligence); Demont v. Mattson, 177 Neb. 277, 196 N.W.2d 190 (1972) (it was a jury question as to whether defendant’s driving down a hill on a winding, narrow, and unlighted road at 50 m.p.h., missing a turn, a hitting an embankment was gross negligence); Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979) (gross negligence found when unlicensed motorcyclist accelerated to 20 m.p.h. over the speed limit, in heavy traffic, driving between lanes and between cars, finally resulting in an accident when he failed to slow down for a turn despite plaintiff’s warnings)).

Jeanelle Lust

jlust@knudsenlaw.com

www.knudsenlaw.com

 

The "hell or highwater rule"

Permission

In Barry v. Tanner, 547 N.W.2d 730 (Neb. 1996), the Nebraska Supreme Court held:

[W]here initial permission to use an insured vehicle has been given by one having proper authority to give permission to the person operating it at the time of the accident, for purposes of liability coverage, such operation is with the express or implied permission of the named insured, even though specific or express terms of the permission given were violated.

Id. 547 N.W.2d at 733-34.

In Tanner, the vehicle driven by Tanner struck another vehicle driven by Mosher and, as a result of the force of the collision, Mosher's vehicle struck Barry. Tanner was a self-employed auto body specialist who had been given the vehicle for some minor repair and paint work. Tanner used the vehicle to go out and get some dinner and was returning to his auto shop when the accident occurred. After obtaining a default judgment against Tanner, who was uninsured, Barry commenced a garnishment proceeding against the vehicle owner's insurer on the theory that the defendant was a permissive user of the vehicle. The district court did not agree and dismissed the proceeding. On appeal, the Nebraska Supreme Court noted that it had previously adopted the "initial permission rule." Such a rule "reflects the view that automobile liability insurance is for the benefit of the public as well as insureds." 547 N.W.2d at 733. The court further noted that its interpretation of the rule is most analogous to the "hell or highwater rule," which provides:

[I]f the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or highwater, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated .

547 N.W.2d at 733-34.  Accordingly, the court held that where a named insured gives permission to another to operate the insured vehicle, insurance coverage ought not depend on whether or not the operator is violating the conditions placed upon his use.

Jeanelle R. Lust

jlust@knudsenlaw.com

www.knudsenlaw.com

 

State Surveys miss many violations

According to a Government Accountability Office (GAO) report, state nursing home survey inspectors frequently miss care problems in nursing homes.  The findings stated that 15 percent of state surveys failed to cite at least one G through L deficiency.  In nine states, the federal surveyors found missed serious deficiencies in 25 percent or more of the surveys.

   At the D through F tag level, missed deficiencies were over 50% in all but five states.  State surveys failed to identify 2.5 D through F level deficiencies per survey.  The most frequently missed deficiencies were quality of care standards.

   In response the GAO intends to :

1. Require regional [CMS] offices to determine why state surveyors cite a deficiency at a lower scope and level than federal surveyors do.

2. Establish quality controls to improve the accuracy and reliability of information and survey data.

3. Analyze federal comparative and observational survey results.

 

 

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New Five Star Rating System for Nursing Homes

    In December 2008, the Centers for Medicare and Medicaid will launch a new five star rating system.  This new system is designed to allow residents and their families an easy way to understand the assessment of nursing home quality.  This new system is not meant to replace a consumer actually going to the nursing home and visiting with staff, residents and other families, rather, it is just another tool to aid in choosing a nursing home.

    The new system will provide a compiled view of the quality and safety information already on the Nursing Home Compare website and will attempt to make it easier for people to compare nursing homes.  The five star rating system will also serve as an incentive for nursing homes to earn the five star rating by providing an environment of better quality of care.

    More information, including a screen shot of what the proposed rating system will look like can be found at www.cms.hhs.gov/PressContacts/10_PR_fivestar.asp

 

 

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Preparing for your next Nursing Home Survey

Screening of Employees

   Lewis Morris, Chief Counsel to the U.S. Inspector General, recently testified before a subcommittee of the House of Representatives on the topic:  “In the Hands of Strangers:  Are Nursing Home Safeguards Working?”  Reading between the lines of his testimony, nursing homes should expect employee screening to be a major focus area on their next survey.

¨    Screen all staff and prospective staff against the Office of Inspector General’s (OIG) List of Excluded Individuals and Entities.  Screening staff against the LEIE helps ensure that a nursing home does not employ an excluded person and that it does not bill federal health care programs for an excluded person’s work. 

¨    Screen prospective nurse aides and other non-licensed care staff through the use of the state nurse aide registries.  Federal regulations prohibit facilities from employing individuals in certain positions who have been found guilty of certain offenses or who have had findings entered into the registry for abuse, neglect or mistreatment of residents or misappropriation of their property.

¨    Check the registries in other states.  Most facilities check their home state’s nurse aide registries prior to employing an individual.  They do not routinely check the registries in other states, but you should do so if an individual may have worked elsewhere.

Voluntary Compliance Programs

The OIG is currently soliciting public comments on draft Compliance Program Guidances.  This new draft focuses on key areas that surveyors will be looking at:

· Inadequate staffing.

· Poor care plan development.

· Inappropriate use of psychotropic medications.

· Lack of Proper medication management.

· Resident neglect and abuse.

The proposed draft should be studied for potential improvement in these areas.

 

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LB 765: Change Provisions Relating to Certificates of Need

 

 

                LB 765 which went into effect on July 18, 2008 requires a certificate of need (CON) for certain actions by healthcare facilities.  First, if a healthcare facility has an increase over a 2 year period of more than 10 long-term care or rehabilitation beds or an increase of more than 10% of the total long-term care or rehabilitation bed capacity, whichever is less it will require a CON.

 

                Next, a CON will be required if a hospital decides to convert hospital beds to either long-term care or rehabilitation beds and if the total of those are more than 10 beds or more than 10% of the total bed capacity, whichever is less, over a 2 year period.  And finally, if a healthcare facility relocates rehabilitation beds to another facility it will require a CON.

 

                Under the act, DHSS can grant an exemption and certificate of need for up to 3 beds if rehabilitation beds, subject to a moratorium if the average occupancy of all such beds within a health planning region exceeds 80% occupancy during the most recent 3 consecutive calendar quarters and there are no other available, comparable services.

 

 

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Refunds of Republican River taxes (property and occupation) imposed under LB 701

We’ve been hearing this question a lot lately, “So your law firm won that tax challenge, how do I get my tax money back?”

 

Statutes and court decisions on obtaining refunds of unconstitutional taxes are complicated, inconsistent and confusing, and the way to obtain refunds of unconstitutional property or occupational taxes is not perfectly clear.  Our best advice is as follows:

 

Property tax:

1. Write “LB 701 property tax paid under protest” on the memo of your tax payment check.
2. Within 30 days after payment, send a written request for refund to the county treasurer where the taxes are paid.  Forms available upon request to jlust@knudsenlaw.com or rconfer@knudsenlaw.com .
3. The treasurer is supposed to forward the request to the County Board and if the refund is not approved by the County Board the taxpayer may sue for a refund.
4. There is no specific statute of limitations for a suit to recover a tax paid under protest, but the general statute of limitations for actions for which no limitations period is specified is four years.
5. There is also a statute providing that when an action is stayed by statute, the plaintiff has one year after the stay is removed to bring an action, or the time specified by the statute of limitations, whichever is longer. Since the judgment in Garey v. DNR  (holding the property tax unconstitutional) is superseded pending appeal, this statute might extend the statute of limitations for a year after the appeal is decided.

 

Occupation tax:

1. The statute for paying taxes under protest (Neb. Rev. Stat. § 77-1735) by its terms applies only to “property tax”. If the occupation tax is held to be a property tax, that statute might nevertheless apply to LB 701’s occupation tax.
2. Although § 77-1735 says it applies only to property tax, a case decided in 1886 held it also applied to an excise tax, which would include an occupation tax. It is difficult to predict whether this case is still good law.
3. Because of the uncertainty concerning the applicability of § 77-1735, we recommend paying the occupation tax under protest and filing a written demand for refund, just like with the property tax. In other words:
1. Write “LB 701 occupation tax paid under protest” on the memo portion of the tax payment check, and
2. Send a written request for refund of the occupation tax to the county treasurer within 30 days after payment.

 

4. There is a specific statute of limitations for an occupation tax (by its express terms this statute does not apply to property tax), requiring suit to be brought within one year of the tax being declared unconstitutional. The Supreme Court has decided this means the suit for refund of an occupation tax has to be brought within one year after paying the tax.
5. The one year period for bringing a suit for refund could be extended if there is a stay of a judgment finding the occupation tax to be unconstitutional, until a year after the stay is lifted.
6. If the occupation tax is held to be a property tax the courts could find § 77-1735 procedures apply instead of the occupation tax statute of limitations.
7. If § 77-1735 does not apply, taxpayers may have to sue for refund or they will not receive a refund.
8. We recommend bringing suit for refund within a year of paying the occupation tax.

 

 

 

 

For more information on joining a lawsuit challenging the occupation tax imposed on Republican River Basin taxpayers, please go to www.knudsenlaw.com and click the information links.

 

Also email Jeanelle Lust jlust@knudsenlaw.com or Rod Confer rconfer@knudsenlaw.com for forms you can submit to request a refund.