recognizing a troubled employee€¦ · • impacts 1 out of every 100 people. onset is late teens,...
TRANSCRIPT
Recognizing a Troubled Employee
Kim Dyson, MA,LPC,MAC,SAP
Licensed Professional Counselor
Masters Addiction Counselor
EMDR Trained
Quote to Remember
“When dealing with people,
remember you are not dealing with
creatures of logic, but creatures of
emotions.” Dale Carnegie
Mental Health Problems in the Work
Place
• According to 2010 U.S. National Comorbidity
Survey 18% of employees in the workplace
experience mental health disorders.
• Mental health disorders often go unrecognized and
untreated which damages an individual’s health,
career and reduces productivity in the work place.
General Signs of Mental Illness
• Confused or Disoriented
• Darting looks
• Talking to self
• Pressured speech
• Poor hygiene
• Inappropriate attire
• Behavior Changes
• Flat Affect
• Withdrawn
• Sad or anxious mood
• Panic
• Psychosomatic complaints
Schizophrenia Symptoms
• Impacts 1 out of every 100 people.
Onset is late teens, early
adulthood.
• Symptoms Include :
– Hallucinations
– Delusional thinking
– Apathy
– Withdrawn
– Poor hygiene
Major Depression
Symptoms
• Sad, anxious, feeling empty, hopeless, pessimism
• Decrease energy
• Lack of interest in activities, work & sex
• Sleep disturbance (insomnia or over sleeping)
• Appetite and weight changes
• Guilt, helpless, and thoughts of death
• Suicide attempts
• Problems with concentration, and making decisions
• Hypochondria
Manic/ Bipolar Disorder
Symptoms
• Increased energy
• Decrease need for sleep
• Increase risk taking
• Unrealistic beliefs in abilities
• Increased talking, physical, social & sexual activity
• Aggressive response to frustration
• *Depressed phase is similar to Major Depressive Disorder
• *Rapid cycling can occur
Anxiety Disorders
Panic Disorders Symptoms
• Women twice as high as men.
• Include intense fear, heart palpitations, chest pain,
shortness of breath, dizziness, poor concentration,
excessive worrying, requiring excessive reassuring,
panic attacks occur without warning
Person is concerned that the attacks will strike again
Anxiety Disorders
Obsessive-Compulsive Disorder
• Due to a short circuit in the basal ganglia
• Two types:
• Obsessions are recurrent thoughts, images, impulses
that cause anxiety. They are illogical, at times
repulsive and /or center on violence or harm. Ex.
fearful of having a illness, pre-occupation.
• Compulsions are behaviors that are repetitive-
attempts at reducing the anxiety created by the
obsessions. i.e. hand washing, counting, ordering.
Post Traumatic Stress Disorder
Symptoms:
Exposure to an extremely stressful event.
Painful memories, nightmares, suspicion, anxiety,
depression, feelings of guilt and sleep difficulties
Symptoms worsen with exposure to similar events
Substance abuse is a common method to cope
Psychosis
• Senses can be affected: sight, hearing, smell &
touch.
• Like a LSD trip: a chemical firestorm
• Central control system is down
• It’s terrifying, confusing
• Symptoms will go away with time or with treatment
Personality Disorders
Difficulty in holding steady
work and relationships
Difficult to change
Can co -exist with other
mental illnesses
Perceiving events are
skewed
Range of intensity are
inappropriate
Impulse control
Co-occurring Disorders
Presence of both a mental illness and substance
abuse disorder
High prevalence rates
60% of persons with a mood disorder also have a
substance abuse disorder
50% of persons with schizophrenia also have a
substance abuse disorder
Cognitive Disorders
Symptoms:
• Memory problems
• Impaired Judgment
• Disorganized
• Failure to meet deadlines
• Problems with time management
• Difficulty following instructions
Basic Communication Guidelines
Simple content
Low stimulation level
Don’t force
communication if person is
withdrawn
Be consistent
Don’t take actions or
reactions personally
Be patient
Be pleasant and firm
Praise cooperative
behavior
Practice reflective listening
Know your non-verbal
communication
Violence
Incidence increases 60% if
the mental illness is
untreated.
Greatest risk, males in late
teens to early 20’s
Past behavior best
predictor
Substance abuse
Warning Signs
Tremors
Hyperactivity
Rigid Posture
Clenched jaws and fists
Pulsing arteries
Verbal abuse/profanity
Characteristics of a Good Working
System
Shared Vision
Involvement of both parties
Established written documentation
Formal and informal verbal communications
Ongoing Commitment
Facts About Suicide
• 8 out of 10 suicides have given prior warning
• Ambivalent about Death
• Ambivalence is not the same as manipulation
• Suicide Risk does not increase with Discussion
• Substance abuse issues
• History of mental illness
• Talk of giving things away of value
Facts about Suicide
• A parent died by suicide increases risk by 50%
• Prior attempts increases risk by 33%
• Mental Illness increases the risks
– 61% have Major Depression
– 48% have Personality Disorders
– 40% have Alcohol Use Disorder
– 10% have Anxiety Disorder
– 6% Schizophrenia
Why Do People Die by Suicide?
• Impulsive
• Depressed
• Escape from suffering
• Communication problems
• Loss of a loved one
• Feels hopeless
Intervening
• Create a safe environment
• Take turns communicating
• Talk about a safety plan
• Emphasize the positives
• Evaluate the persons potential
• Refer to the EAP
Tips for Confronting the Employee
• Private and confidential
• Focus on job performance
• Document declining performance
• Maintain a supportive attitude
• Give the employee a chance to “tell their story”
• Be clear about all duties and expectations
• Be fair and consistent
Tips….
• Don’t make value judgments
• Make no excuses for poor performance
• Be prepared to meet with defensiveness
• If the employee reports they are sick….refer to a
medical professional
• Hold to your convictions regarding their decline
• Seize the opportunity to seek help for the employee
Tips….
• Set up a follow up meeting
• Explain how to utilize a EAP
• Make a Management Referral when a employee is a
Threat to Self or Others, Tested Positive for Drugs
or Alcohol, Psychological Impairment, or Job
Performance Deterioration
How Can a Manager Deal with Difficult
Employees
• Evaluate the situation
• Develop a plan
• Act quickly
• Confront the problem
• Focus on the behavior
• Be conscious of the employee’s feelings
• Use disarming techniques
• Know When You are in Over Your Head, call the EAP representative
to set up an immediate consultation
• If the employee becomes combative or threatening to self call 911
How to Document Poor Work
Performance and Attendance
• Note incidents: dates…time
• Record behaviors observed
• Include acceptable and unacceptable performance
• All information is confidential, and discussed only
with the employee and official company
representative
In Conclusion…..
BayView Professional
Associates Employee
Assistance Program
BayView EAP
450-2250
“Everything we shut our eyes to,
everything we run away
from…can become a source of
beauty, joy, and strength if faced
with an open mind.”
~Henry Miller
APPLICATION OF THE ADA TO
EMPLOYEES WITH MENTAL
HEALTH DISABILITIES
Celia J. Collins
EEOC resolved 5000 charges of discrimination based on mental health
conditions in 2016 and obtained $20 million for employees denied
employment and reasonable accommodation.
Increase in EEOC charges filed per common mental health disabilities
0
500
1000
1500
2000
2500
AnxietyDisorder
Depression PTSD
2007
2011
2016
From EEOC.gov
The Americans with Disabilities Act
• Prohibits employers from discriminating against
qualified individual with disabilities in job application
procedures, hiring, firing, advancement,
compensation, job training, and other terms,
conditions, and privileges of employment
• Applies to employers with 15 or more employees
• An employer must make a reasonable
accommodation to allow a disabled employee to
perform the essential functions of the job unless it can
demonstrate that the accommodation would impose
an undue hardship on the operation of the business.
Statutory Definition of Mental Impairment
Mental Impairment under the ADA – “any mental or
psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and
specific learning disabilities”
Definition of Disability
ADAAA (ADA Amendments Act of 2008)
• “definition construed in favor of broad coverage of
individuals”
3 Categories of Protection:
• Impairment that substantially limits one or more
major life activities
• Record of a substantially limiting impairment
• Being regarded as having a substantially limiting
impairment
Substantially Limited
• EEOC regulations – “not meant to be a demanding standard”
• Impairment is a disability if individual:
• Unable to perform a major life activity; or
• Restricted in the condition, duration or manner under which a major
life activity can be performed as compared to the average person
• Duration must be more than several months
• Consider severity
• Without regard to “ameliorative effects” of mitigating measures
• Medication, medical supplies, equipment, or appliances
• Prosthetics
• Hearing aids and other hearing devices
• Coping strategies
Episodic/Remission
• Conditions that are episodic or in remission are disabilities if they
substantially limit a major life activity when active
• Examples:
• Manic Depressive Disorder
• Bipolar disorder and PTSD
Major Life Activities Typically Implicated by
Mental Health Impairment
• Thinking
• Concentrating
• Interacting with others
• Sleeping
• Caring for oneself
• Working
• Communicating
“RECORD OF IMPAIRMENT”
• Substantially limiting in the past
• Includes individuals mischaracterized as having a disability
• May be relevant cases where someone is using a mitigating
measure to control a condition
“REGARDED AS” DISABLED
• Impairment is not substantially limiting, but individual is treated as
such
• Impairment is substantially limited as the result of the attitudes of
others
• No impairment, but employer treats an individual as if he or she
has a substantially limiting impairment
Types of Protected Psychiatric Impairments
• Anxiety disorder
• Panic disorder
• Bi-polar disorder
• Depression
• Post-traumatic stress disorder
• Schizophrenia
• Adjustment disorder
Impairments Not Covered
• Pyromania
• Kleptomania
• Compulsive gambling
• Current illegal use of drugs
• Certain sexual disorders ???
Personality Traits Are Not Covered Impairments
• Poor judgment
• Chronic lateness
• Irritability
• Inability to get along with supervisor or co-workers
WHAT IS REASONABLE
ACCOMMODATION?
• A change in the workplace in the way things are customarily done
that provides an individual with a disability with equal
employment opportunities
• Accommodations are available for the application process, to
enable an individual with a disability to perform essential job
functions, and to provide equal benefits and privileges of
employment.
WHAT TRIGGERS ACCOMMODATION
PROCESS
Specific request for accommodation
Obvious disability
Employer’s recognition of need for accommodation, performance
decline, excessive tardy or absence
Employee’s attempt to return to work after LOA for disability
INTERACTIVE PROCESS
“To determine the appropriate reasonable accommodation, it may
be necessary for the covered entity to initiate an informal, interactive
process with the individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable
accommodations that could overcome those limitations.”
29 CFR 1630.2(o)(3)
IMPLEMENTING THE INTERACTIVE PROCESS
• Analyze the particular job, its purpose and essential functions
• Consult with the employee to ascertain job-related limitations and
possible accommodation
• Consult with the employee, identify potential accommodations and
assess effectiveness
• Select and implement most mutually appropriate accommodation
with consideration to employee’s preference
• Continuing obligation
Types of Accommodations
• Physical modifications
• Modified work schedules
• Job restructuring
• Changing supervisory methods
• Job coach
• Telework
• Leave
• Reassignment to a vacant position
Accommodations Not Required
• Lowering production or performance standards
• Excusing violations of conduct rules that are job-related and consistent
with business necessity
• Removing an essential function
• Monitoring an employee’s use of medication
• Actions that would result in undue hardship (i.e. significant difficulty or
expense)
DOL SUGGESTED ACCOMMODATIONS:
UNITED STATES DEPARTMENT OF LABOR OFFICE OF
DISABILITY EMPLOYMENT POLICY : Maximizing Productivity:
Accommodations for Employees with Psychiatric Disabilities
• Flexible Workplace - Telecommuting and/or working from home.
• Scheduling - Part-time work hours, job sharing, adjustments in the start or
end of work hours, compensation time and/or "make up" of missed time.
• Leave - Sick leave for reasons related to mental health, flexible use of
vacation time, additional unpaid or administrative leave for treatment or
recovery, leaves of absence and/or use of occasional leave (a few hours at
a time) for therapy and other related appointments.
• Breaks - Breaks according to individual needs rather than a fixed schedule,
more frequent breaks and/or greater flexibility in scheduling breaks,
provision of backup coverage during breaks, and telephone breaks during
work hours to call professionals and others needed for support.
• Other Policies - Beverages and/or food permitted at workstations, if
necessary, to mitigate the side effects of medications, on-site job coaches.
DOL SUGGESTED ACCOMMODATIONS: Modifications:
• Reduction and/or removal of distractions in the work area.
• Addition of room dividers, partitions or other soundproofing or visual barriers
between workspaces to reduce noise or visual distractions.
• Private offices or private space enclosures.
• Office/work space location away from noisy machinery.
• Reduction of workplace noise that can be adjusted (such as telephone volume).
• Increased natural lighting or full spectrum lighting.
• Music (with headset) to block out distractions.
Equipment/Technology:
• Tape recorders for recording/reviewing meetings and training sessions.
• "White noise" or environmental sound machines.
• Handheld electronic organizers, software calendars and organizer programs.
• Remote job coaching, laptop computers, personal digital assistants and office
computer access via remote locations.
• Software that minimizes computerized distractions such as pop-up screens.
DOL SUGGESTED ACCOMMODATIONS:
Job Duties
• Modification or removal of non-essential job duties or restructuring of the job to
include only the essential job functions.
• Division of large assignments into smaller tasks and goals.
• Additional assistance and/or time for orientation activities, training and learning job
tasks and new responsibilities.
• Additional training or modified training materials.
Management/Supervision
• Implementation of flexible and supportive supervision style; positive reinforcement
and feedback; adjustments in level of supervision or structure, such as more frequent
meetings to help prioritize tasks; and open communication with supervisors
regarding performance and work expectations.
• Additional forms of communication and/or written and visual tools, including
communication of assignments and instructions in the employee's preferred learning
style (written, verbal, e-mail, demonstration); creation and implementation of written
tools such as daily "to-do" lists, step-by-step checklists, written (in addition to verbal)
instructions and typed minutes of meetings.
DOL SUGGESTED ACCOMMODATIONS:
Management/Supervision (cont’d)
• Regularly scheduled meetings (weekly or monthly) with employees to discuss
workplace issues and productivity, including annual discussions as part of
performance appraisals to assess abilities and discuss promotional opportunities.
• Development of strategies to deal with problems before they arise.
• Written work agreements that include any agreed upon accommodations, long-term
and short-term goals, expectations of responsibilities and consequences of not
meeting performance standards.
• Education of all employees about their right to accommodations.
• Relevant training for all employees, including co-workers and supervisory staff.
What Is Undue Hardship • Limitation on employer’s obligation to provide reasonable accommodation
• Significant difficulty or expense and focuses on resources and circumstances
of particular employer in relationship to cost or difficulty of providing
specific accommodation
• Consider employer’s size, financial resources, the nature and structure
of its operation
• Not only financial difficulty, but to accommodations that are unduly
extensive, substantial, or disruptive, or those that would fundamentally alter
nature or operation of business
• Assessed on case-by-case basis
SAFETY ISSUES
• Individual with a disability may only be excluded for safety reasons if he or
she poses a “direct threat” to the health or safety of him/herself or others.
• Direct threat means a significant risk of substantial harm to self or others
that cannot be reduced or eliminated through reasonable accommodation
• Determination relies on best available objective evidence from treatment
provider or other reliable source and not on stereotypical generalizations or
bias about mental illnesses.
• An individualized assessment is required
DIRECT THREAT FACTORS
• Nature of the risk and severity of the potential harm
• Duration of the risk
• Likelihood that the potential harm will occur
• Imminence of the risk
• Availability of reasonable accommodation
Documentation
• Employers may obtain reasonable documentation that an
employee has a mental disability and needs an accommodation
• Documentation should establish the existence of an impairment
and the degree to which the impairment limits major life activities
• Employer entitled to no more information than is necessary to
determine that individual has a disability and needs an
accommodation
• Employer may require documentation come from a health care
professional
CONFIDENTIALITY
• Information about an employee’s reasonable accommodation must be kept
confidential
• EXCEPTION: Information may be disclosed to supervisors and managers
for necessary work restrictions or reasonable accommodations
• EXCEPTION: Information may be disclosed to individuals involved in
making decisions about reasonable accommodations
• Exceptions: Where necessary for emergency treatment; to officials
investigating compliance with Rehabilitation Act; for workers’ compensation
and insurance purposes
EEOC Guidance December 2016
Depression, PTSD and Other Mental Health Conditions in the
Workplace: Your Legal Rights
• Can’t discriminate because of a mental health condition or rely on myths or
stereotypes about the condition to decide whether employees can perform
the job
• Must have objective evidence that employee cannot perform job or creates
a safety risk even with a reasonable accommodation
• Employee can keep condition private unless they ask for accommodation or
there is objective evidence that he or she can’t perform the job or poses a
safety risk
• Employee has right to reasonable accommodation for any mental health
condition that substantially limits ability to concentrate, interact with others,
communicate, eat, sleep, care for self, regulate thoughts or emotions or do
any other major life activity.
EEOC Guidance December 2016 Depression, PTSD and Other Mental Health Conditions in the Workplace: Your
Legal Rights
• Episodic symptoms may qualify – major depression, PTSD, bi-polar,
schizophrenia, OCD
• Employer does not have to excuse poor performance caused by a medical
condition or the side effects of medication
• If a reasonable accommodation would help the employee do his job, the
employer must provide unless it involves significant difficulty or expense
• If the employee can’t perform essential functions and has no paid leave, he
may be entitled to unpaid leave as a reasonable accommodation
• If employee is permanently unable to perform his tasks, he may ask
employer to reassign to one he can do, if available.
Managing Employee’s with Psychiatric Disabilities • The ADA does NOT protect an employee from misconduct, even if the
misconduct is related to disability
• Courts have upheld terminations for misconduct even when the misconduct
was the symptom of a mental illness
“An employer consistent with the ADA…may terminate an employee for
inappropriate behavior even when that behavior is precipitated by the
employee’s disability.”
“So long as the employee’s misconduct is related to the performance of her job, an employer may discipline or terminate the employee even if her misconduct
was caused by the disability.”
Managing Employee’s with Psychiatric Disabilities
A SECOND CHANCE IS NOT A REQUIRED ACCOMMODATION
• The Accommodation request should come before the discipline.
EEOC Guidance, the Americans with Disabilities Act, Applying Performance
and Conduct Standards to Employees with Disabilities
“If an employee states that her disability is the cause of the conduct problem, requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.”
“Excusing workplace misconduct to provide a fresh start/second chance to
the employee whose disability could be offered as an after-the-fact excuse is
not a required accommodation under the ADA”
Overview:
Trajectories in Health Care 21st Century Cures Act
Wade B. Perry
21st Century Cures Act
• Cures Act was enacted on 12/13/16
• Authorizes $6.3 billion in funding, including $1 billion to help states
fight opioid epidemic
• Cures Act has numerous aims, including:
• Enhance personalized medicine, facilitate health data use for
research, and speed up drug development
• Develop best practices and evidence-based protocols (“real
world evidence”) to support new therapies and improve health
and care quality
• Expand access to and better coordinate mental health (“MH”)
and substance use disorder (“SUD”) care, especially in
underserved areas
21st Century Cures Act – HIT Matters (§§ 4001-4012 )
• Reduce burdens (regulatory and documentary) in use of EHRs • Permit physicians to use scribes for EHR documentation
requirements • Promote technology/EHRs for pediatric care • Adopt regulations for technology vendor certification
prohibiting information blocking and promoting interoperability
• Offer hardship exception for eligible professionals whose EHR has been decertified
• Establish a trusted exchange framework and common contract for data exchange between health information exchange organizations ("HIEs")
• Create national provider digital contact information index
21st Century Cures Act – HIT Matters (§§ 4001-4012 )
• Create a single HIT Advisory Committee to replace HIT Policy and HIT Standards Committees
• Secretary to identify activities that are not "information blocking" • Impose penalties of up to $1 million for information blocking ($10
million initial appropriation to OIG for this) • - ONC/OCR to issue guidance on barriers to HIE (remember HISPC?)
Enable patients to access longitudinal EHRs through HIEs • GAO to issue studies on patient matching and patient access to health
information • Push for greater telehealth coverage by Medicare
21st Century Cures Act – Mental Health Matters (Div. B)
• Strengthening Leadership and Accountability (Title VI) o Nomenclature changes:
Administrator of SAMHSA now "Assistant Secretary for Mental Health and Substance Use"
Substance abuse now "substance use disorder" o Chief Medical Officer for SAMHSA to be appointed o By 9/30/18, Assistant Secretary to publish SAMHSA strategic plan with
numerous areas of focus, including improving quality of MH and SUD services, encouragement of more providers to serve rural areas
o Creation of Serious Mental Illness Coordinating Committee
21st Century Cures Act – Mental Health Matters (Div. B)
• Ensure MH/SUD Programs Keep Pace with Science/Technology (Title VII) o Create national MH and SU Policy Laboratory to study best practices
and implement evidence-based programs • Promote Access to MH and SUD Care (Title IX)
o Integrate MH and primary care programs o Create and maintain real-time State databases of MH and SUD beds o Assist individuals in transitioning out of homelessness o Implement adult suicide prevent and intervention programs o Equip pediatric providers to reduce underage drinking through
screening and intervention
21st Century Cures Act — Mental Health Matters (Div. B)
• Promote Access to MH and SUD Care (Title IX) (cont'd) o Training programs for medical residents/fellows to provide MH
and SUD care in underserved areas — use of technology to support such care and integration of MH and primary care will be prioritized
o Minority fellowship program focusing on prevention, education, and treatment of minorities suffering from MH and SUD problems
o Report on workforce development efforts due by December 13, 2018 for posting on DHHS website
o Create College Campus Task Force to address MH concerns on campuses, recommend future initiatives based on findings
21st Century Cures Act — Mental Health Matters (Div. B)
• Various MH/SUD Programs for Children and Adolescents (Title X) o Pediatric MH care access grants to develop/improve statewide or
regional pediatric MH telehealth programs o SUD treatment and early intervention services o Assist in recovery from trauma due to violence-related stress o Screening and treatment for maternal depression o Promotion of infant and early childhood MH intervention and
treatment
21st Century Cures Act — Mental Health Matters (Div. B)
• Clarifying HIPAA Permissions (Title XI) o By early 2018, Secretary must convene stakeholders to discuss
effect of revised 42 CFR Part 2 rules on patient care, health outcomes, and privacy
o By 12/13/2017: Guidance due on permitted uses and disclosures of PHI,
when consent or opportunity to object required Identify or develop model programs and training materials
about permitted uses and disclosures of PHI of MH/SUD patients, including patient and family access rights
21st Century Cures Act — Mental Health Matters (Div. B)
• Mental Health Parity (Title XIII) o By 12/13/2017, Depts. of HHS, Labor and Treasury to issue
Compliance Program Guidance for group health plans, insurers about MHPAEA requirements Include de-identified examples of previous agency findings,
examples of compliant and noncompliant NC1TLs o By 6/13/2017, Secretary must convene stakeholders to create action
plan to improve federal and State coordination of MH parity enforcement, including toll-free number, website, and centralized collection of and response to patient complaints
o HHS and GAO to study parity compliance and enforcement Five parity violations by plan sponsor or health insurance issuer
will lead to compliance audit o Eating disorder benefits are subject to parity requirements
Response to the Opioid Epidemic
In 2015, >33,000 individuals died from opioid overdose
Response to the Opioid Epidemic
2015 Age-adjusted rate
2.8 to 11.0
11.1 to 13.5
13.6 to 16.0
16.1 to 18.5
18.6 to 21.0
21.0 to 41.5
Death rate due in part to increased prescribing of opioids for chronic pain in belief that opioids are not addictive – 259 million prescriptions in 2012
Response to the Opioid Epidemic
• CDC Guidelines issued March 2016 o Voluntary, best practice tools o Intended to assist PCPs; don't apply to surgical, cancer, hospice
patients or minors o Use opioids only when necessary after trying other pain relief
methods o Use lowest effective dose o Check PDMP databases and monitor patients during treatment o Prescriptions rarely should exceed 7 days; typically, 3 or fewer
days needed o Avoid prescribing opioids and benzodiazepines simultaneously o Make naloxone available when certain risk factors present
Response to the Opioid Epidemic
• Federal Efforts to Combat the Epidemic o §1003 of Cures Act directed Secretary to issue $500 million in
grants to States in both 2017 and 2018, based on States' incidence of opioid use disorders
o Money to be used to improve State PDMPs, abuse prevention efforts, practitioner training, access to treatment
o In April 2017, Tom Price announced $485 million in grants to be issued to States and territories
Response to the Opioid Epidemic
• State Efforts to Combat the Epidemic o 46 Governors signed Compact to Fight Opioid Addiction
in July 2016, agreeing to: Take steps to reduce improper prescribing Raise awareness and understanding of addiction Ensure pathways to recovery
o Nine States have limited amount of opioids practitioners may prescribe (5 to 7 days)
o o OH requires opioid prescriptions for pain to be filled within 14 days of issuance
o NC Medical Board investigating all prescribers who fall within top 1% of two prescribing categories or have had two or more patient deaths in last 12 months
o TN, OH, WV, CA, and others have sued opioid manufacturers; more suits likely
W. Bo Perry (251) 441-9238
WORKERS' COMPENSATION CASE LAW UPDATE
PRESENTED BY: LAWRENCE J. SEITER
TRACY P. TURNER
WORKERS' COMPENSATION CASES
Ex Parte West Frazer, Inc., ___So.3d ___, 2017 WL 4081311 (Ala.Civ.App. September 15, 2017)
Holding: The Court of Civil Appeals granted the employer’s petition for writ of mandamus following a Publix hearing wherein the trial court failed to determine the source and causation of the employee’s injuries. The Court of Appeals specifically held that the trial court failed to determine the source and cause of the employee’s injuries and whether the injury was compensable. At such a Publix hearing, the trial court must make all appropriate findings of fact or the matter will be reversed and remanded for additional findings.
Saarinen v. Hall, ___ So.3d ___, 2017 WL 3821732 (Ala. September 1, 2017)
Holding: The Supreme Court held that a co-employee’s failure to install another presumably safer saw was not the equivalent of removal of a safety guard so as to constitute willful conduct under the Workers’ Compensation Act allowing a tort action against a co-employee.
Grieser v. Advance Disposal Services Alabama, LLC, ___ So.3d___, 2017 WL 3445618 (Ala.Civ.App. August 11, 2017)
Holding: The Court of Civil Appeals clarified when the Return to Work Statute applies, finding that as a whole it is not an affirmative defense, but that the five subsections are in fact five affirmative defenses which must be pled by the employer in its answer in order that they not be waived. In addition, the Court held that the Return to Work Statute does not ordinarily apply when an employee has been terminated from his or her employment before receiving an initial award of workers’ compensation benefits.
Bailey v. Jacksonville Health and Rehabilitation Center, ___So.3d ___, 2017 WL 3096322 (Ala.Civ.App. July 21, 2017)
Holding: The Court of Civil Appeals found that a question of fact existed in regard to whether a CNA contracted scabies while at work and whether this caused alleged psychological injuries, thus precluding summary judgment. The Court further opined that at the summary judgment stage, the trial court cannot weigh conflicting evidence in the record and make credibility determinations.
Wyatt v. Baptist Health System, Inc., ___ So.3d ___, 2017 WL 3096691 (Ala.Civ.App. July 21, 2017)
HOLDING: The Court of Civil Appeals upheld the trial court’s determination based on the court’s hearing of the evidence at trial and finding that substantial evidence was presented that the employee did not establish medical causation. Thus, the trial court’s ruling in favor of the employer was affirmed.
Ex parte R.E. Garrison Trucking, Inc., 2017 Ala.
Civ. App. LEXIS 126 (June 16, 2017)
Holding: The Court of Civil Appeals determined the trial erred in concluding that there was sufficient evidence to hold that the Defendant did business by an agent in Washington County through its "recruitment" policies for its drivers. Based on the insufficiency of evidence to determine that Defendant did business by an agent in Washington County, the Court of Appeals granted Defendant's writ of mandamus and directed that the trial court vacate its order denying Defendant's motion for transfer of venue to Cullman County.
Brewton Area YMCA v. Lanier, 2017 Ala. Civ.
App. LEXIS 61 (Civ. App. March 17, 2017)
Holding: The Alabama Court of Civil Appeals determined that: 1) substantial evidence existed at the trial court level regarding the employee's testimony used to prove legal causation; 2) that actual knowledge of a work-related injury existed when the employer-CEO contacted its workers compensation carrier about the work place injury, and the workers compensation carrier subsequently investigated the claim; 3) that injuries to an employee's hip should be treated as a nonscheduled member injury; 4) that the employer was barred from arguing that its retirement plan contributions should not be calculated in the employee's average weekly wage simply because the employer failed to raise such argument at the trial court level; and 5) the employee conceded she was not due TTD and TPD benefits when she was being paid her full salary while recuperating and when she returned to work full time after her accident.
Ex parte Hibbett Sporting Goods, Inc., No.
2160069, 2017 Ala. Civ. App. LEXIS 31 (Civ. App. Jan. 27, 2017)
Holding: Venue is proper under §6-3-7(a) (2) in the
county where a business has its principal office in the
State of Alabama, and §6-3-7(a) (3), stating that venue is
proper where a Plaintiff resides, applies if the corporation does business by an agent in the county of
Plaintiff's residence.
Ex parte Tenax Corp., No. 1151122, 2017 Ala.
LEXIS 6 (Jan. 27, 2017)
Holding: Factors such as control, direction, payment of fees for workers compensation insurance premiums,
duration of work, and acquiescence of the risks of
employment where physically working are factors that support a contract of hire. When such contract for hire exists, in addition to other enumerated factors, the
employer becomes a special employer, as defined by
the Alabama Workers Compensation Act, and is thereby
relieved of tort liability under the exclusive-remedy
provisions of the Alabama Workers Compensation Act.
Ex parte Thompson Tractor Co., No. 2160086,
2017 Ala. Civ. App. LEXIS 14 (Civ. App. Jan. 13, 2017)
Holding: When an employee / plaintiff to a workers
compensation claim dies before the adjudication of
the
workers compensation claim, the action abates upon
the employee's death, and thereby strips the trial court
of subject-matter jurisdiction, forcing the case to be
dismissed. A widow to the deceased employee may
not be substituted as a plaintiff in such instance
because
the widow has no claim under the Alabama Workers Compensation Act.
Hand Constr., LLC v. Stringer, No. 2150730, 2017
Ala. Civ. App. LEXIS 19 (Civ. App. Jan. 13, 2017)
Holding: Trial court lacked jurisdiction to award benefits
under Alabama Code §25-5-35(d) (2) due to the fact
that the employee (Stringer) could not satisfy the two-
pronged test under §25-5-35(d) (2) and thereby show
that no other state besides Alabama would have jurisdiction over workers compensation claim for benefits
in connection with his injuries.
Ex parte Associated Gen. Contrs. Workers'
Comp. Self-Insured Fund, No. 2160120, 2017 Ala. Civ.
App. LEXIS 9 (Civ. App. Jan. 6, 2017)
Holding: The Alabama Court of Civil Appeals granted AGC's and Good Hope's writ of mandamus directing the Cullman trial court to vacate its order transferring the action to Jefferson County, to reinstate the action in Cullman County, and to enter an order denying Harding's motion to dismiss or, alternatively, to transfer on the basis of improper venue due to AGC's and Good Hope's showing that §6-3-7 controls venue in this instance because Good Hope's principal place of business was in Cullman County.
RGIS Inventory Specialists v. Huey et al., 2016
Ala. Civ. App. LEXIS 302 (Ala. Civ. App. Dec. 16,
2016)
Holding: (1) Since the trial court had not yet
dismissed the case when it denied the employer's and
the carrier's motion to intervene, the employer and carrier appealed from a valid order. (2) Since the
employer and the carrier did not cite any relevant Alabama legal authority to support their argument for
their right to intervene for subrogation recovery, they
waived their argument that the trial court erred in
denying their motion to intervene.
Ex parte Tidra Corp, 2016 Ala. Civ. App. LEXIS
252 (Ala. Civ. App. Oct. 07, 2016)
Holding: (1) Because no party made a required
motion, petitioner employer was entitled to a writ of
mandamus vacating an order that respondent
employee undergo a mental examination. (2) Error
in summary judgment requiring the employer to
provide the employee physical therapy because no
evidentiary hearing required under Ala. Code § 25-5-
77(a) and Ala. Code § 25-5-88 was held, only a
properly supported motion for judgment on the
pleadings or summary judgment could be granted
pretrial, and there was a genuine dispute in regards
to whether the employee is entitled to physical
therapy as a result of his work-related injury.
Petition Granted; Writ Issued.
RETALIATORY DISCHARGE
Foster v. North American Bus Industries, Inc., ___So.3d ___, 2017 WL 1534547 (Ala. April 28, 2017)
Holding: The Supreme Court again addressed the standard of establishing a prima facie case and the evidence necessary to create a question of fact regarding pretext once the defendant puts forth their grounds as to why a claim for workers’ compensation benefits was not the sole reason for the discharge. Accordingly, the Supreme Court reversed the trial court’s grant of summary judgment, and the matter was remanded for further proceedings.
Kirby v. Jack's Family Rests., LP, 2017 Ala. Civ.
App. LEXIS 121 (June 16, 2017)
Holding: The Court of Civil Appeals determined that the trial court exceeded its discretion in certifying Plaintiff's dismissal of her tort of outrage claim as final, pursuant to Rule 54(b), because Plaintiff's tort of outrage claims relied on the same set of underlying facts as her claim for retaliatory discharge. Thus, in order to avoid the unreasonable risk of inconsistent results posed by separate adjudication of two claims that rely on the same set of underlying facts, the Court of Civil Appeals dismissed Plaintiff's appeal.
Tracy P. Turner (251) 441-9213
Lawrence J. Seiter (251) 441-9224
Where are We and
What the Heck are We
Supposed to Do?
The current state of employment law
under the new administration
Celia J. Collins
How Things Have/Can/Will Change
• Replace / Rescind prior Executive Orders
• New Agency leadership rescind/replace guidances and
interpretations
• New Agency leadership rescind/replace Final Regulations
• Statutory changes by Congress
• Judicial philosophy/ Judicial interpretations in Courts
Executive Orders
Rescinded Obama’s Fair Pay and Safe Workplace Order
Blacklisting and Pay transparency
Federal contractors must disclose violations of 14 different labor
laws even if dispute settled.
Contracts could be denied if excessive violations
Federal contractors must provide detailed wage statements to
each employee
Enjoined by Texas court now rescinded by Trump
Issued Buy American / Hire American Order
(may impact employer’s who rely on H-1B’s)
Agency Changes
DOL
Wage and Hour
OSHA
OFCCP
NLRB
EEOC
Changes Expected from Agencies
Retract, rescind or modify guidances and interpretations
Suspend enforcement of regulations
Adopt new initiatives and strategies
Propose new regulations
DOL
Alexander Acosta, Secretary of Labor
Confirmed 04/27/2017, US Attorney in Florida
Former Head of DOJ Office of Civil Rights
Member of NLRB (Bush appointee)
Law School Dean
Trump proposed 20% budget cut for DOL
Withdrawal of Agency Interpretations
June 7, 2017
Acosta withdrew Administrator's Interpretation No. 2016-01
establishing new standards for Joint Employment.
Acosta withdrew Administrator’s Interpretation No. 2015-1
classification of independent contractors “most workers
are employees under the FLSA’s broad definitions.”
Numerous Vacancies Deputy Secretary, Administrator of Wage and Hour awaiting
confirmation
DOL
Wage & Hour
Status of White Collar Overtime Exemption
Obama increased Wage and Hour investigations by 1/3, cut back
is likely.
Trump will re-instate Wage and Hour Opinion Letters which
were stopped under Obama.
Persuader Rule stayed by Court and DOL issued Notice to
officially rescind
EEOC
Victoria Lipnik, Acting Chair – Moderate Republican – Commission seat
until 2020
Appointments pending confirmation -
Janet Dhillion, Chair, Republican, Corporate General Counsel
Daniel Gade, Republican, ADA expert, lost leg in Iraq
Both awaiting confirmation vote
2 Democrats, one’s term expires in July 2018 and the other in July 2019
Will be 3 Republicans and 2 Democrats, but Lipnik is moderate on some
issues.
EEOC
Strategic Enforcement Plan
2017-2021
Immigration/ Migrant protection
Equal Pay
Systemic Harassment
Inflexible Leave Policies
Accommodation for Pregnancy
LGBT rights
Expect subtle shifts in priorities
EEOC
Future of Expanded EEO-1
Expanded EEO-1 requires reporting an abundance
of additional information - both costly and
administrative burden
August 2017 - Frozen by OMB as “unnecessarily burdensome”
EEOC
Future of LGBT Protection
SUMMARY OF CURRENT LAW
• Sexual Orientation –whether a person prefers the company of the
opposite sex, their own sex or both sexes – gay, lesbian, bisexual
• Discrimination based solely on sexual orientation prohibited under
EEOC interpretation but not strictly prohibited for private employers
and by majority of courts interpretation of Title VII.
• Gender non-conformity – a person who does not demonstrate the
stereotypical conduct, behavior, demeanor for their gender, i.e., Not
manly, not feminine etc.
Discrimination based on failure to conform to gender stereotypes is
prohibited whether employee is gay or straight.
Future of LGBT Protection
Transgender – a person who identifies as a gender different from their
birth gender and may be transitioning in identity, dress and demeanor
and/or medically to the non-birth gender.
Discrimination based upon transgender status has increasingly been
found to be discrimination based upon unlawful gender stereotyping.
Future of LGBT Protection
Current Court Status
7th Circuit en banc panel holds sexual orientation a
protected class under Title VII
2d Circuit and 11th Circuit’s refused to extend Title
VII coverage to sexual orientation
Conflict among Courts will likely go to SCOTUS
05/25/2017
Federal District Court holds gender dysphoria is a
disability under the ADA – Case Settled
Reasonable accommodations may be required
for transgender employees
Future of LGBT Protection
Mixed Signals from the White House
Late January White House announces will not
rescind Executive Order 11246 which expressly
prohibits discrimination on the basis of sexual
preference, sexual orientation or transgender
status.
White House withdraws Obama era guidance on
rights of transgender students under Title IX
White House declines to continue tradition
celebrating Gay Pride Month but does not stop
agencies from doing so (EEOC, DOD, etc.)
Future of LGBT Protection
Mixed Signals from the White House (cont’d)
DOJ files Amicus brief in 2d Cir Title VII sexual
orientation case reversing its prior position “the
EEOC does not speak for the United States.”
September 2017 – DOJ files Amicus in bakery
case supporting right to refuse business on
religious grounds.
October 2017 -
DOJ issues memo rescinding transgender protection
Trump issues directive to cease recruiting transgender in
military
Future of LGBT Protection
State Law Developments
20 States have passed laws banning discrimination based
on sexual orientation or gender identity.
2 more passed laws protecting sexual orientation
NLRB 5 member capacity - currently 2 Democrats (terms expire 2018
and 2019), 1 Republican.
2 Republicans nominated, 1 confirmed, 1 pending confirmation
Republican chair’s term expire December 2017
General Counsel’s term expires in December, replacement nominee
pending confirmation
6% Funding cut in proposed budget – reduction of 275
employees.
Possible legal changes
Withdrawal of Persuader Rule (currently in litigation and temporarily
enjoined – NLRB could withdraw appeal)
Scope of Concerted Activity – Purple Communications
Social Media / Confidentiality Policies
Quickie Election Rule
Joint Employer Definition
OSHA
Electronic Record Keeping Rule
Rule effective January 1, 2017 requiring electronic
reporting of illness and injury to be filed by July 1,
2017
May 2017 - OSHA suspended rule. In July, extended
compliance date until December 2017.
Issue - filings would be public record effecting
reputation of companies and providing fodder for
unions. (This may be rolled back.)
Volk’s Rule – Published 12/19/16
Extended OSHA’s time frame to issue citations for
record keeping violations from 6 months to 5 years
Trump repealed in April
Budgeting Changes – 05/23/2017
Mandatory Paid Maternity Leave
Included in proposed budget
• 6 weeks paid leave to mother AND father
• “Federal-state” paid with unemployment insurance
program
• Commences in 2020
• States must implement but have latitude to design
and finance
Who will fund – Employers through additional payroll taxes
Proposed Merger of OFCCP and EEOC
“One agency to combat discrimination”
Congress said “NO” in September 2017
Budget Cuts
DOL 20% decrease
NLRB 6% decrease
EEOC $700K
OSHA – very minor reductions
Legislation
Increasing Minimum Wage
• Immediate increase from $7.25 to $9.25
• Increase to $15 an hour in 7 years.
• Thereafter pegged to median hourly rate BLS
Prediction – Won’t Pass but may be compromised
Side note – Trump campaigned on higher minimum wage – has
suggested $10 per hour
Working Families and Flexibility Act Comp Time in the Private
Sector
Working Families and Flexibility Act (HR1180)
Amend FLSA to allow comp time in private sector
• optional for both employee and employer
• 1.5 hours of comp time for each overtime hour capped at
1600
• Eligible if worked 1000 hours in 12 months
• Employer must pay for unused accrued hours at end of year
by January 31 or on separation of employment or upon 30
days of written request by employer
• Employer can choose to buy back hours in excess at 80 at
any time and can discontinue comp time program
Passed House with no Democratic votes. Pending Senate vote.
Needs 8 Democrats in Senate to pass. Trump will sign.
Courts
Justice Gorsach – Confirmed as Justice on Supreme Court
“Brilliant legal mind”
Former US Supreme Court Clerk
Considered Conservative
Strict Constructionist
5/4 ProBusiness Majority in SCOTUS
2016-2017 Supreme Court Employment Law Cases
Class Action Arbitration Waiver Clauses
Public Employee Right to Work Law
LGBT Rights??
WHAT TO DO
Changes slow and incomplete –
no rush to change your practices / policies
Stay Vigilant –
Read email alerts and updates
Speak up –
Contact Congress person, Senator on pending legislation.
Submit comments on proposed regulations
Affordable Care Act: 2017 Update
• Trump Administration – Executive Order (October 12, 2017)
• Nationwide Association Health Plans (AHPs) Flexibility to offer group coverage across state lines
Designed to promote “healthcare choice and competition”
• Trump Administration – Executive Order (October 12, 2017)
• Expanding availability of short-term, limited duration insurance
Not afforded some ACA protections (e.g. pre-existing conditions)
• Expanding availability of Health Reimbursement Arrangements (HRAs)
Affordable Care Act: 2017 Update
• Trump Administration – Subsidy Cutoff (October 12, 2017)
• Ending cost-sharing reductions (CSRs) Goal: reduce deductibles and co-pays for many low
income people
18 states have joined in a federal lawsuit to force continued subsidy payments
• Congressional Action Plan • Senate bipartisan agreement to fund ACA subsidy
payments Effort to stabilize insurance marketplace
• Trump support / non-support
Affordable Care Act: 2017 Update
• Section 1557 and Gender Identity Discrimination
• Nationwide injunction and HHS revisiting of regulation Franciscan Alliance, Inc. v. Burwell, 227
F.Supp.3d 660 (N.D. Tex. 2016) Prescott v. Rady Children’s Hospital – San Diego,
S.D. Cal. No. 16-cv-02408 (Doc. 22, Sept. 27, 2017)
• ACA Coverage Exemption for Birth Control • moral and religious objections by employers
requirement – must notify employees • Lawsuits and Congressional Actions
ACLU and State Attorney Generals
19 Senate Democrats have signed bill to reverse Trump’s exemption
What’s Next for the ACA?
Jessica L. Welch (251) 441-9273
Update on Status of Federal
Overtime Rule
Spencer H. Larche
Old / Current Rule
• All hours over 40 must be paid at time and
one-half the regular rate of pay, unless
exempt.
Exempt Employees:
• Executive
• Administrative
• Professional
• Outside Sales
• Certain Computer Employees
New Proposed Rule
• Raised salary requirement for first time since
2004
• Proposed $913 per week ($47,476/year)
• Salary level to automatically update every 3
years, starting January 1, 2020
• Was to take effect on December 1, 2016
07/06/15 09/04/15 05/18/16 Panic Ensues 11/22/16 06/30/17 07/26/17 08/31/17 09/05/17 09/25/17
DOL issues Notice of Proposal Rulemaking
Public Comment Closed
Final Rule Released
District Court Issued TRO
DOL Filed Reply Brief in Appeal before 5th Circuit and withdraw support for wage level
DOL Seeks Public Comment on White Collar Exemptions
District Court Dismiss Entire Case
5th Cir. Grants DOL motion for voluntary dismissal
Comment Period Closed
White Collar Exemption Timeline
• Litigation was voluntarily dismissed
• DOL must review public comments, which addressed DOL questions:
• Should new salary level be 2004 level adjusted for inflation?
• Should the duties test change?
• Should salary level be dependent on employer size, region or other factors?
• Should each exemption category have its own standard salary level?
• What did employers do to prepare for implementation of 2016 Find Rule?
• Should there be an automatic increase in my levels, our time, and if so , how would that be implemented?
Where Does DOL Go From Here?
Where Does DOL Go From Here?
• There will be a new rule sometime in the future
• DOL Secretary Acosta on the record that $47K is too
high for a salary level, but that $23K is too low
• Acosta suggested $33K (roughly $635 per week)
Where Does DOL Go From Here?
• If you have already made changes in how employers
are paid and classified, it’s probably not wise to flip-
flop.
• Be prepared for a more moderate increase in the
salary level for exemptions.
• Monitor court cases and DOL rulemaking notices to
see which way the wind is blowing.