HoosierEmploymentLawyer.com

There Must Be Something in the Water…

mwaterfill — Fri, 18 Nov 2011 20:38:48 +0000

Coast to coast, both Federal and state governmental agencies are increasingly targeting companies in several industries, including trucking, over employee misclassification, stepping up their audits and enforcements and working together as never before to share information on companies they perceive as misclassifying workers as independent contractors. Plus, newly-enacted state regulations and proposed federal legislation are set to turn the screws ever tighter.

To read the full bulletin, please click here.

OCR’s HIPAA Pilot Audit Program begins November 2011

mwaterfill — Fri, 18 Nov 2011 20:37:54 +0000

HHS Office for Civil Rights (“OCR”) announced last week that its pilot for HIPAA compliance audits will begin this month and end in December 2012. The American Recovery and Reinvestment Act of 2009 requires periodic audits of covered entities and business associates to ensure compliance with the HIPAA Privacy and Security Rules and Breach Notification standards.

Please click here for full article.

Important NLRB Case

mwaterfill — Tue, 08 Mar 2011 19:37:06 +0000

A case pending before the National Labor Relations Board has the potential to have a profound impact on unionization of the workplace. In Specialty Healthcare and Rehabilitation Center, 356 NLRB No. 56, the Board is expected to change the Board’s 50-year bargaining standards to permit unions to organize units of employees who perform the same job. This would be a far narrower bargaining unit standard than in the past.

Please click here for more information.

Remember That Employees Do Not Have to Be Disabled to Be Protected Under the Americans with Disabilities Act

mwaterfill — Fri, 28 Jan 2011 17:49:52 +0000

On August 31, 2010, a federal district court in Indiana decided that an employee whose cancer was in remission must be considered by his employer as “disabled” under the Americans with Disabilities Act, as amended in 2009. More than a year after the employee had surgery for stage III renal cancer and having fully returned to full duty work as a service technician, the employer requested that the employee begin working 65 to 70 hours per week rather than the 40 hours per week that he had been working. The employee then submitted a doctor’s note saying that he was limited to 40 hours per week, which the employer said that it could not accommodate. The employer did, however, propose that the employee work out of an office that was located an hour further from the employee’s home, where he could work 40 hours per week. The employee refused and simply stopped showing up for work. The employee then sued the employer for violating the Americans with Disabilities Act, and the court agreed that although the employee was not substantially impaired in any major life activity, the fact that he had previously suffered from cancer required the employer to consider the employee as disabled. The court ruled that a trial was needed to determine whether the company’s offer to move the employee’s work location was a reasonable accommodation.

This case highlights the fact that employers need to be extremely careful in considering whether their employees may be considered a qualified individual with a disability under the Americans with Disabilities Act, as amended in 2009. The employee in the highlighted case may be able to force his employer to consider other reasonable accommodations (or pay him a lot of money), even though his physician found him to be cancer free. Therefore, once a person suffers from cancer or any one of many other bodily conditions, employers need to be careful of considering them to be “cured.” Now, instead of a person having a past record of a disability, which would not require a reasonable accommodation, an employer may be faced with having to accommodate an employee who used to have a bodily condition. It is more than semantics. You must be careful in these situations.

New ADA Regulations for Recreation Facilities, Fitness Settings, and Pools

mwaterfill — Thu, 20 Jan 2011 19:08:11 +0000

In the fall of 2010, the U.S. Department of Justice announced revisions to the Americans with Disabilities Act (ADA) Standards for Accessible Design that apply to both state and local governmental entities as well as to places of public accommodation. These revised regulations define a “place of public accommodation” as a facility operated by a private entity whose operations “affect commerce,” including such facilities as hotels, motels, inns, restaurants, public or private schools, daycare and senior centers, recreation facilities, play areas, and other fitness settings, to name a few. These regulations do not apply to private residential facilities, such as retirement communities or homeowners’, apartment and condominium associations, unless these facilities are open to the general public. However, it is important to note that if one of the above-mentioned residential facilities receives federal funding or is otherwise government-guaranteed, the answer may be different and such a facility should seek legal advice.

Accessible Design Standards

The new Standards for Accessible Design are a revision of the 1991 Access Board Guidelines with additional sections that cover recreation facilities, swimming pools, camps and children’s play areas. The significance of this change is that it clearly informs facilities that they have a legal obligation to adhere to these accessible design standards,

The following are examples of changes that will affect recreation facilities.

Fitness Equipment

At least one of each type of exercise equipment must be on an accessible route and must have a clear floor space positioned to enable an individual with a disability to use the equipment.
At least 25% of guard/handrails must be no higher than 34 inches and dispersed, with clear floor space provided at each railing and turning space on the pier.

Saunas and Steam Rooms

Must be accessible, having appropriate turning space, doors that do not swing into clear floor space, and, where provided, an accessible bench.

Play Areas

Any areas designed, constructed, and altered for children ages two and over in a variety of settings.
Accessible ground and elevated play components, accessible routes, ramps and transfer systems, and accessible ground surfaces must be provided.

Swimming Pools, Wading Pools, and Spas

Accessible means of entry/exit for pools are required (i.e. pool lift or sloped entry, and either a transfer wall, transfer system, or pool stairs).
Wading pools must provide sloped entry.
Spas must provide a pool lift, transfer wall, or transfer system.

Boating Facilities

Where boarding piers are provided, at least 5% (but no fewer than one) must be accessible.

Fishing Piers and Platforms

Newly designed, constructed, or altered piers must provide accessible routes.

Dates to be aware of:

The rules are slated to take effect on March 15, 2011, However it is anticipated that facilities are not going to be required to comply with the 2010 Standards for Accessible Design for another 18 months.

As of March 15, 2012, all new construction, renovations, and alterations must use the 2010 Standards.

Staying informed on the process with its enforcement and exceptions will be in your best interest.

Resources for keeping informed:

The Department of Justice has published a number of factsheets to explain the changes that were made. In order to gain a head start, please consult the following.

Summary of Changes: http://www.ada.gov/regs2010/ADAregs2010.htm
2010 Standards for Accessible Design: http://www.ada.gov/regs2010/factsheets/2010_Standards_factsheet.html

In addition, revisions have also been made to Title II (public entities) and Title III (public accommodation and commercial facilities) of the ADA. For more information on these, you may wish to consult:

Title II: http://www.ada.gov/regs2010/factsheets/title2_factsheet.html
Title III: http://www.ada.gov/regs2010/factsheets/title3_factsheet.html

Source: The National Center on Physical Activity and Disability website http://www.ncpad.org/index.php

Additional Information:

For additional information, please contact:

Martha J. Sweterlitsch at msweterlitsch@beneschlaw.com or (614) 223-9367
Thomas B. Kern at tkern@beneschlaw.com or (614) 223-9369

5th Annual Beyond the Basics in Employment Law Seminar: February 8, 2011 in Indianapolis

mwaterfill — Fri, 03 Dec 2010 20:24:24 +0000

It is essential to understand the emerging developments in employment law, as well as the distinction between employees and independent contractors. If your workers are properly classified, you can avoid the costly risks and looming penalties associated with worker misclassification. This seminar addresses issues “beyond the basics,” including Health Care Reform and wage & hour classification crack down.

Speakers include an impressive team of attorneys who specialize in all aspects of labor and employment law at both the state and federal level. They have significant expertise in counseling clients on labor, employment, and human resources issues and representing employers in state and federal courts and administrative agencies.

For more information and to register, please click here.

Americans with Disabilities Act Public Accommodations Alert

mwaterfill — Tue, 02 Nov 2010 21:21:22 +0000

Once again, significant changes to the Americans with Disabilities Act (“ADA”) requirements have been adopted. Earlier this year, new regulations were adopted by the Department of Justice, which regulations take effect March 15, 2011. In addition, new “accessibility” design standards were also adopted, which take effect March 15, 2012. These changes will affect everything from internal and external access paths, to the location of wall outlets and lighting switches. While there are a variety of “safe harbor” provisions relating to existing facilities, businesses contemplating renovations or new construction should make certain that their design and other professionals are familiar with these requirements.

Please click here to learn more.

Fire the Employee for What He or She Admits to Have Done

mwaterfill — Wed, 18 Aug 2010 18:07:48 +0000

“When to fire?” is a question I am often asked. Employers always ask if there is enough evidence or if it is time yet to fire. Stretching facts or firing based on assumption is never a good idea.

For example, years ago two bank tellers were in an island kiosk where they handled drive-up customers when a significant amount of money came up missing. Both tellers adamantly denied the theft. Both also recalled a money bag on the floor of the booth, which was a violation of policy.

Following my advice, the two were not fired for theft as there was no proof of that, but both did admit to the policy violation of money on the floor. That was the reason for the bank to terminate both, and neither could deny the rationale.

Similarly, in the sexual harassment context, an employee might admit to telling dirty jokes but adamantly deny much worse alleged conduct. Consider firing the employee for the admission of telling a subordinate several dirty jokes rather than the conduct which is hotly disputed.

Listen carefully to what the employee admits and use that as a basis of the termination.

FMLA Update August 12-13 in Indianapolis

mwaterfill — Thu, 29 Jul 2010 14:38:53 +0000

Pressing Employment Policy Concerns – Leave Law Update

mwaterfill — Thu, 08 Jul 2010 16:41:30 +0000

Employers should take note of three important recent events that could affect their leave of absence policies. To learn more about these events and how they could affect your business, please click here.