Employment LawEmployment LawHot Topics in theHot Topics in the

Health Care Health Care SettingSetting

American with Disabilities ActAmerican with Disabilities Act(ADA)(ADA)

July 26, 1994 – applies to all July 26, 1994 – applies to all employers with 15 or more employers with 15 or more employeesemployees

Prohibits discrimination Prohibits discrimination against disabled individuals against disabled individuals in critical areas such as in critical areas such as employment, public employment, public accommodations, accommodations, transportation, housing and transportation, housing and communicationcommunication

ADA, cont.ADA, cont.

Disability – physical or mental Disability – physical or mental impairment that substantially limits impairment that substantially limits one or more of the major life one or more of the major life activities of the individual; a record activities of the individual; a record of such impairment or being of such impairment or being regarded as having such an regarded as having such an impairmentimpairment

New activity in areas of New activity in areas of stress/depression and mental stress/depression and mental impairmentimpairment

ADA, cont.ADA, cont. Requires “reasonable Requires “reasonable

accommodation” by accommodation” by employers when employee employers when employee brings it to their attentionbrings it to their attention

Employer may request Employer may request medical medical certification/documentationcertification/documentation

****LANDMINELANDMINE**** Asking health- Asking health-related questions during anrelated questions during an interviewinterview

Family Medical Leave ActFamily Medical Leave Act(FMLA)(FMLA)

Applies to all Applies to all employers with 50 employers with 50 or more employeesor more employees

Employees eligible Employees eligible after 1 year of after 1 year of service (1250 service (1250 hours)hours)

Requires granting Requires granting of leave up to 12 of leave up to 12 weeks per year for weeks per year for family family emergency/illnessemergency/illness

FMLA, cont.FMLA, cont.Biggest Challenges:Biggest Challenges:

Developing tracking Developing tracking system to ensure system to ensure employees request employees request leave under FMLA leave under FMLA and that the leave is and that the leave is accurately tracked.accurately tracked.

Productivity: Cannot Productivity: Cannot replace the replace the individual – must individual – must keep the position keep the position open for them to open for them to returnreturn

Operational Operational exposureexposure

Civil Rights Act of 1964Civil Rights Act of 1964Title VIITitle VII Prohibits Prohibits

discrimination based discrimination based on race, color, on race, color, religion, sex, or religion, sex, or national originnational origin

Sexual harassment is Sexual harassment is considered considered discriminationdiscrimination

Exponential Exponential expansion of claims expansion of claims and lawsuits over and lawsuits over past 9 yearspast 9 years

Title VII, cont.Title VII, cont. As of October 1998, law holds As of October 1998, law holds

employers strictly liable for employers strictly liable for harassment by a supervisor if a harassment by a supervisor if a tangible employment action tangible employment action occurs, regardless of whether occurs, regardless of whether the company was awarethe company was aware Involves a person of influenceInvolves a person of influence Quid pro quoQuid pro quo

**HOT SPOT****HOT SPOT** Wrongful discharge Wrongful discharge based on retaliationbased on retaliation

Hiring/FiringHiring/Firing Greatest Greatest

vulnerability vulnerability corporatelycorporately

$100,000 to $100,000 to defend defend employment employment cases, which is cases, which is not covered by not covered by insurance carriersinsurance carriers

IssuesIssuesViolence in the Violence in the workplaceworkplace

Risk managementRisk management