Houston Medical Journal June 2017 - Page 18

Page 18 Medical Journal - Houston June 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LEGAL AFFAIRS continued from page 12 . . . . . . . . . . . . . . . however, do not recognize the weight of their employments decisions until after they have been accused of wrong-doing. These risks can be reduced, or possibly even eliminated, by effectively evaluating and tweaking such decisions before implementation. HR’s role is therefore critical. Workers’ compensation law deals strictly with an employee’s work-related injury or illness. The ADA provides broad rights related to the employee’s own condition applies throughout employment and also protects job applicants. The FMLA applies after, among other things, one cumulative year of service – it applies to employees’ with serious health conditions, and it applies An example further illustrates the complexity of these situations. After a disabled employee has fully-exhausted his FMLA entitlement, the ADA still applies. Among other things, the ADA prevents an employer from setting arbitrary or across- the-board limits on how much additional time off an employee may take. Instead, the employer has a duty to conduct an individualized assessment of possible accommodations. In short, no one should attempt to navigate through these situations without substantial HR guidance. With this in mind, these are five areas in which thorough HR review is especially important, offering opportunities to save significant time and money: Managing Employees Who Need Medically- Related Time Off: This is perhaps the most challenging employment issue that executives and managers face. These situations not only arise frequently, but they are complicated, confusing, and prone to exploitation by malingerers. The Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), along with workers’ compensation laws, often apply. Each law raises different issues when it applies. Depending upon the circumstances, all three of these areas may apply simultaneously. The laws do not dovetail neatly, so they must be considered separately. Each, especially the FMLA, requires detailed communications to employees. Each law imposes legal duties upon employers, and each forbids retaliation against employees for exercising statutory rights. is generally prohibited from asking about the particulars of an employee’s condition. In fact, a manager may be supervising an employee who would be considered “disabled” (and protected) under the ADA, yet not even know it. (and it prohibits discrimination against an employee because of an association with someone who is disabled). The FMLA requires job-protected leave and certain benefits during that leave. Workers’ compensation laws apply from the beginning of employment. The ADA when an employee is involved in the care of certain relatives with such conditions. No “magic words” are required to invoke protection. In fact, without any employee request, the employer may have a duty to make further inquiry to determine its duties. However, an employee’s supervisor Proceed Cautiously When Treating Workers as Independent Contractors or Changing an Employee’s Payroll Classification: The Wage and Hour Division of the United States Department of Labor (DOL) devotes significant resources focused upon these issues. Specifically, the DOL seeks to identify individuals classified as independent contractors who should be treated as employees. It also scrutinizes employees who are treated as exempt from overtime (and paid a salary), searching for classification errors. These are long- standing hot areas of employment litigation. Again, the applicable rules are detailed, Please see LEGAL AFFAIRS page 25