Knudsen Law Firm Successfully challenges LB 701

The Nebraska Supreme Court ruled on Friday February 6, 2009 that property tax authority given to the Upper, Middle and Lower Republican Natural Resources Districts is unconstitutional because the money is for a state purpose: the Republican River Compact compliance. The Court stated,"We conclude that LB701(1)(d) violates the prohibition against levying a property tax for state purposes ... and that such provision is therefore unconstitutional.” “The state has acknowledged that compliance with the compact is the state’s responsibility by entering into the final settlement stipulation resolving the litigation which was initiated by the state of Kansas in 1998,” the ruling continued. Therefore, the judges concluded, the state is obligated to comply with the compact, and the LB701 tax was designed to meet a state obligation.

LeRoy Sievers of the Knudsen Law Firm said the Supreme Court decision shows that “the taxing provisions were . . . imposing a tax for a state purpose.” Sievers added that the lawsuit was not filed to cause problems in the Republican Basin but to do just the opposite-- have the state do its job in compact compliance. Jeanelle Lust with the firm added the court's message to state senators and water managers is "you can't stick your head in the sand and do nothing about the Republican River issues. Maybe this is what some state senators who don't live in the basin needed to hear."

Lust said Nebraska's water issues won't disappear. The same water shortage issues are cropping up all over the state, and Nebraska needs to find a sensible way of regulating these issues as a state. "What we were really hoping to accomplish, in addition to eliminating the property tax, was to get the Legislature to realize that they can't solve the state's compliance problems on the backs of the people in the Republican River basin," she said. Rod Confer, who tried the case at district court level, and wrote the winning argument on appeal, agreed, "Maybe now the state will come up with some sensible regulations."

In the District Court, Judge Merritt had decided that LB701 created a closed class of NRDs entitled to the law’s taxing authority, making the tax special legislation, and unconstitutional under Nebraska's Constitution. The Supreme Court did not address that argument because “once you’ve found something invalid on one basis, you don’t need to go on to the other (bases).” Sievers said.

Angus Garey of McCook, one of nine Republican River basin landowners and residents who filed the lawsuit, said he was pleased with the decision and expected county commissioners to begin asking NRDs to refund the special property tax revenue to the counties. "The taxpayers of southwest Nebraska are relieved," Garey said.

Rodney M. Confer

Jeanelle R. Lust

LeRoy Sievers

The Knudsen Law Firm

Knudsen, Berkheimer, Richardson & Endacott.

3800 VerMaas Place, Suite 200

Lincoln NE 68512

800 714 3439

jlust@knudsenlaw.com

rconfer@knudsenlaw.com

lsievers@knudsenlaw.com

www.knudsenlaw.com

The importance of right to sue letters and timing of employment discrimination lawsuits.

 

            As was succinctly stated in Karstens v. International Gamco, Inc., 939 F.Supp. 1430 (D.Neb. 1996), “[t]o exhaust her remedies, not only must a Title VII plaintiff timely file her charges with the EEOC, but she must also receive a “right to sue” letter from the EEOC.”  Id. at 1435 (citing Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8^th Cir. 1996); see also Stuart v. General Motors Corp., 217 F.3d 621 (8^th Cir. 2000).  This circuit has recognized that receipt of a right-to-sue letter is a condition precedent to a filing of a lawsuit under Title VII or the ADA.  See Jones v. American State Bank, 857 F.2d 494, 499 (8^th Cir. 1988).  Although a plaintiff who prematurely files a lawsuit before receiving a right-to-sue letter may cure the defect by subsequently receiving a right-to-sue letter, Id. at 499-500, the lawsuit should be dismissed in the absence of a right-to-sue letter.  See Kane v. State of Iowa Dept. of Human Services, 955 F.Supp. 1117, 1140 (N.D.Iowa 1997).

            In Kane, the plaintiff filed suit prior to receiving her right-to-sue letter.  Subsequently, before the defendant moved for summary judgment on the ground that plaintiff failed to exhaust, plaintiff received her right-to-sue letter.  The court clearly recognized that failure to obtain a right-to-sue letter prior to filing a complaint renders a plaintiff’s claim subject to dismissal.  Id. at 1140.  The court went further, however, indicating that a plaintiff’s right to cure the defect is cut off once the defendant challenges the timeliness of her complaint.  However, the court ultimately denied the defendants motion to dismiss “on the ground that [plaintiff] cured the defect in her premature filing by subsequently obtaining a right-to-sue letter … before any objection to the timeliness of her complaint was made.”  Id. at 1135.  In so holding, the court went on to say:  “The [defendant] sat on its opportunity to obtain the relief it now demands via a motion for summary judgment until long after the defect of which it complains had been cured.”  Id.

Generally, a litigant has 90 days from the receipt of her right-to-sue letter in which to start an action.  See Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997) (citing 42 U.S.C. §2000e-5(f)(1)).  In the Eighth Circuit, where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed and the 90-day statute of limitations begins to run at that time.  See Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997)).  However, the Eighth Circuit has held that a Title VII claimant must acknowledge receipt of a certified right-to-sue letter before the 90-day statute of limitations begins to run.  See Craig v. Dept. of Health, Ed. and Welfare, 581 F.2d 189 (1978); Thomas v. KATV Channel 7, 692 F.2d 548, 550 (1982), cert. denied 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983); see also Webb v. American Red Cross, 652 F.Supp. 917 (D.Neb. 1986). 

            Other circuits have recognized that the general policy behind the 90-day statute of limitations mandates that Title VII plaintiffs not be given the opportunity to manipulate the running of the limitations period by failing to claim certified right-to-sue notices.  These courts have dealt with this problem by holding that a claimant may be deemed to have constructively received notice of the right to sue on the first day the Post Office gives the claimant official notice that the certified letter is awaiting her at the Post Office.  See, e.g., Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552 (6^th Cir. 2000) (holding that a Title VII Plaintiff constructively received a right-to-sue notice when the letter carrier deposited the first of two official notifications at the plaintiff’s official address which advised that a certified letter awaited her at nearby postal station, and that this was the day the 90-day statute of limitations began to run although Plaintiff did not physically receive the notice until the EEOC mailed it a second time); Lee v. Henderson, 75 F.Supp.2d 591 (E.D.Tex. 1999) (holding that “in circumstances where a Plaintiff does not claim her certified mail, the ninety-day period is triggered upon delivery of the first notice of certified mail, not when the letter is actually picked up.”); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 (9^th Cir. 1997) (holding that 90-day limitations period began running when Postal Service attempted delivery of right-to-sue letter at the address of record that employee provided to EEOC); Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40 (4^th Cir. 1993).

            In Graham-Humphreys, the plaintiff had filed a Title VII claim with the EEOC and the EEOC issued the plaintiff a right-to-sue letter and mailed it to her by certified mail.  Graham-Humphreys, 209 F.3d at 554.  Despite having received two notices of attempted delivery in conformity with standard Postal Service practices, the plaintiff neglected to retrieve her certified letter by the deadline stated on the notices.  Id.  Accordingly, the postal service returned her right-to-sue letter to the EEOC as “unclaimed”.  Several days later, the plaintiff requested that a second right-to-sue letter be sent, which she signed for and received.  Arguing that the district court erred in dismissing her complaint as barred by the 90-day statute of limitations, the plaintiff asserted that the statute of limitations did not begin to run until she received the right-to-sue letter following the EEOC’s second mailing.  The court held otherwise, stating:

            Nevertheless, even if the plaintiff did not physically attain actual “receipt” of her RTS notice until March 28, 1996, she had constructively “received” her RTS notification on March 8, 1996, the day that the letter carrier deposited the first of two official notifications at the plaintiff’s last known official address which advised that a certified letter awaited her at the nearby postal station.  [The plaintiff] has conceded that she knew, or suspected, that the certified delivery contained her RTS notice. 

 

Id. at 558 (emphasis in original).  The court went on to state that even if the plaintiff had not conceded that she suspected the certified notice at issue to be her EEOC right-to-sue letter,

she would nonetheless properly be charged with such knowledge, because she indisputably knew that her RTS notice would be proximately arriving by United States mail.  Beyond contravention, most adult Americans are cognizant that critical, time-sensitive official communications are frequently dispatched via certified mail.  In the implicated scenario, the requisites of reasonable diligence demanded that the plaintiff promptly discharge her less-than-demanding obligation to retrieve her certified delivery.

 

Id. at 559 (citations omitted).

             To support its holding that the plaintiff in Graham-Humphreys is deemed to have constructively received her right-to-sue letter upon receipt of the Post Office’s official notice that a certified letter awaited her, the court cited cases from other circuits recognizing that constructive notice is appropriate where the post office has delivered a right-to-sue notice to the plaintiff’s record address and the plaintiff fails to “receive” it until a later date because “the law must preclude ‘a manipulable open-ended time extension which could render the statutory limitation meaningless.’”  Id. at 559, fn. 11.  The court stated that “the same rationale supports the deposit of an attempt-to-deliver notice at the complainant’s record address” as an event which triggers the accrual of the 90-day statute of limitations.  Id. (citing Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4^th Cir. 1993).  Furthermore, “[a]ny more lenient rule would illicitly license a Title VII claimant to indefinitely extend limitations by avoiding acceptance of an RTS notice, thereby circumventing the Congressional mandate that private Title VII lawsuits should be initiated within ninety days of the EEOC’s “giving” of official authorization to sue.”  Id. at 560 (citing 42 U.S.C. §2000e-5(f)(1)).  The court further noted that the above rationale undergirds the established rule that a Title VII complainant is presumed to have received her right-to-sue notice within five days (three days in the Eighth Circuit) of the date the EEOC mailed it.  Id.; see Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson—Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997)) (Where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed).

 

www.knudsenlaw.com

jlust@knudsenlaw.com

krm@knudsenlaw.com

 

Sweeping Changes to the Americans with Disabilities Act Affect Long Term Health Care Facilities

 

 

            Most long-term healthcare facility managers probably have a general familiarity with how the Americans with Disabilities Act (ADA) affects them as employers. Originally passed in 1990, the ADA prohibits private and governmental employers from discriminating against qualified individuals with disabilities, in job applications, hiring and firing, promotions, compensation, training and other aspects of employment. 

 

Health care facilities may not realize, that recent changes greatly expand ADA coverage. These changes can be expected to have a significant impact on long term healthcare facilities, as well as employers in other sectors.

 

            On January 1, 2009, the Americans with Disabilities Act Amendments Act took effect.  In that act, Congress reacted against restrictive past interpretations of the ADA in several Supreme Court opinions and in ADA regulations promulgated by the EEOC. Although the amendments do not change the basic definition of “disability” in the ADA as an impairment that “substantially limits” one or more “major life activities,” they change how these terms will be interpreted by courts and the EEOC.

 

The ADA Amendments Act states that Congress intends the term “disability” to be construed expansively “in favor of broad coverage . . . to the maximum extent permitted.”  It also requires the EEOC to revise its regulations defining when an impairment “substantially limits” a major life activity in a manner consistent with the rest of the Act, i.e., more broadly. Those revised regulations have not been issued.

 

The amendments expand the definition of “major life activities,” limitation of which may result in disability, by giving examples of some activities that formerly were not recognized by the EEOC, such as reading, bending and communicating. The amendments also provide that impairments of “major bodily functions” may substantially limit major life activities and qualify as disabilities.  “Major bodily functions” include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”  

 

An impairment that is episodic or in remission is now considered to be a disability if it would substantially affect a major life activity when it was active. An individual discriminated against because of an actual or perceived disability will be regarded as disabled, unless the impairment is transitory and minor. Formerly such individuals were only regarded as disabled if their impairments were perceived by employers as substantial limitations of major life activities.  Under the amendments an employer is not required to make reasonable accommodations to individuals regarded as disabled, however.

 

The ADA Amendments Act overturns a decision of the Supreme Court that allowed an employer to consider mitigating measures such as prosthetic devices or medications in determining whether an individual had a disability. Now the employer must determine disability without considering those measures, the sole exceptions being that the employer may consider the effect of ordinary glasses or contact lenses. 

 

Health care is the largest industry in the U.S. Economy according to the Bureau of Labor Statistics, and it is also expected to be have the largest rate of employment growth over the next five years. In addition, in a recent year nursing care facilities’ workers suffered occupational illnesses or injuries at more than twice the average rate: 10.1 cases per 100 full-time workers, compared to an average of 5.0 for private industry overall. Musculoskeletal injuries are the most common injury among nursing aides, the largest category of health support occupations.  As one of the economy’s largest employers, with significant exposures to occupational illness and injury, the long term health care industry will undoubtedly see major effects from these amendments to the ADA.

 

The EEOC website, http://www.eeoc.gov, contains information which is helpful for employers in complying with the ADA, including “Questions and Answers about Health Care Workers and the Americans with Disabilities Act.”  Unfortunately these website materials have not yet been revised to reflect changes that were made in the ADA Amendments Act.

 

In the meantime, long term healthcare facilities, like other employers, must insure that their policies and procedures are revised to comply with changes made by the ADA Amendments Act.  It is important that operational personnel and human resources staff are aware of these changes in the law and prepared for the questions and situations that are likely to arise under the ADA as expanded following these amendments.

 

Under these new revisions it is more important than ever for employers to seek early legal advice from competent employment counsel concerning questions they may have concerning the ADA, particularly whenever a claim of discrimination based on disability is alleged.

 

Rodney M. Confer

www.knudsenlaw.com

rmc@knudsenlaw.com

 

What Does your Advertising say About You?

 

 

One of the biggest trends in nursing home litigation has been changing poor care negligence cases into commercial large-scale consumer fraud cases.  The bases of these claims all hinge on marketing material produced by the nursing home.  This series of articles will discuss various claims that may be possible based on false, misleading or inaccurate statements made about a particular facility.  First, some marketing professionals are under the misimpression that statements made as an opinion or as “puffery” cannot be actionable; statements like “in my opinion this facility offers the best wound care in the county” could result in liability under the right circumstances.

An example of vague statements being actionable  was decided by the Nebraska Supreme Court in Henderson v. Forman,  231 Neb. 440, 436 N.W.2d 526 (1989).  The case arose out of the purchase of the Candlelight Inn in Scottsbluff. The buyer contended the seller had told him the roof was “in good shape,” “there were no problems” and a drainage system would keep moisture out of the basement, but after the purchase, design defects in the roof and the drainage system resulted in serious water problems.  The Nebraska Supreme Court  held that the seller’s statements that the roof was “in good shape” and the drains would keep the basement dry could be actionable. The court stated:

[I]n this case the statement was more than a guess. Forman said the roof "was in good shape [and] there were no problems," and this in the face of his knowledge that one of the roofing experts had said that the roof needed replacing.  (Emphasis supplied.)

 

Id. at 448, 436 N.W.2d at 432. The court found the seller’s statements about the drainage system keeping water out of the basement were in a “similar category”; he had said the drainage system would protect the basement from excessive moisture, which was false. Under these circumstances, the statements could be actionable.

Jeanelle R. Lust

www.knudsenlaw.com

jlust@knudsenlaw.com

 

 

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