HR Specialist: Ohio Employment Law by Capitol Information Group

HR SPECIALIST

OHIO Employment Law

Trusted compliance advice for Ohio employers

In the News … Supreme Court makes it harder to win age-bias lawsuits In an important employer victory, the U.S. Supreme Court ruled last month that for employees to successfully bring lawsuits under the Age Discrimination in Employment Act, they must now show that age discrimination was the cause of their termination or other adverse job action—not just one of several possible contributing factors. This decidedly pro-employer ruling will set a higher bar for workers, making it more difficult for them to win agediscrimination suits in court. Read a full analysis of the case at www. theHRSpecialist.com/Gross. (Gross v. FBL Financial Services, No. 08-441) Outlook: Some Democrats in Congress criticized the ruling, saying it will unfairly limit employees’ ability to seek redress for age bias. Expect a push for legislation that would reverse this decision, as Congress did earlier this year in the Ledbetter pay-bias case.

Ohio Supreme Court strikes municipal worker residency rule In a 5-2 decision, the state Supreme Court has ruled that municipalities may no longer require their employees to live within the municipality’s borders. The ruling upholds a 2006 state law that struck down various “home rule” provisions allowing cities, counties, Continued on page 5

Ohio Employment Law is published by HR Specialist and is edited by Jon

Hyman, an employment law attorney and partner with Kohrman Jackson & Krantz PLL, a Cleveland-based law firm. Contact him at jth@kjk.com or (216) 736-7226. (800) 543-2055

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August 2009 Vol. 3, No. 8

Editor: Jon Hyman, Esq., Kohrman Jackson & Krantz PLL, Cleveland

Set clear, consistent response to ‘I’m sick’ calls N

othing will land you in FMLA trouble faster (and more unnecessarily) than ignoring an employee’s request for leave. You’d never do that, you say. But what about an untrained supervisor? Make sure all managers and supervisors know how to handle medical call-ins, so that a potential FMLA request doesn’t get lost. Also, train switchboard operators on where to route such calls. Then, create a tracking system that documents each call, response and final leave decision. All of this is vital because FMLA rules say employers are required to let their workers know about the FMLA

and how to go about requesting FMLA leave for a serious health condition. Ignoring a leave request could amount to “interference” with the employee’s right to take FMLA leave. Recent case: Richard Lytle worked as a nursing assistant at a retirement home near Akron. After Lytle hurt his knee at a karate lesson, his doctor told him to take it easy so he wouldn’t do more damage. The doctor scheduled a surgery. Lytle went to work, but when he developed severe pain and swelling in that knee, he called his supervisor and asked to take medical leave. His Continued on page 2

‘Difficult’ employee? Don’t assume a disability E

very HR pro has to deal with especially difficult and argumentative employees now and then. You know the type: They do everything better than anyone else, in their humble opinion. Any criticism is taken very personally and may be accompanied by an angry response or generally unprofessional behavior. You may believe the employee is having emotional problems—maybe even a diagnosable mental disorder. But don’t mention your suspicions. Instead, concentrate on enforcing your workplace behavior rules. Focus

on behavior, not cause. Until or unless the employee identifies himself as disabled and asks for an accommodation, treat him like any other employee. Otherwise, you risk being charged with regarding him as disabled, which gives the employee protections under the ADA or state disability-bias law. Recent case: While working fulltime as a maintenance worker, Charles Vainisi tended to a dying wife and then had to raise their teenage children. One of the boys developed a drug problem, causing Vainisi to miss Continued on page 2

IN THIS ISSUE

Policy is useless without vigilance . . . . . . . . . . . . . .2 Drafting a social networking policy . . . . . . . . . . . . . .6 New rules on association discrimination . . . . . . . . . .3 What’s up doc? Contacting doctor for FMLA info . . .7 Promotion policies: A 6-step legal process . . . . . . . .4 The Mailbag: Your questions answered . . . . . . . . . . .8 National Institute of Business Management

Even the best sexual harassment policy is useless without supervisor vigilance

‘I’m sick’ calls (Cont. from page 1)

call was referred to several others within the company. But no one actually provided him with any FMLA information or asked him to get a medical certification from his health care provider. Lytle took the leave and soon found himself terminated, supposedly because he failed to show up for work after calling in. He sued, alleging FMLA interference. The court sent the case to trial, saying employers are required to respond to leave requests and a jury should decide whether Lytle’s condition was an FMLA-qualifying serious health condition. If it was, then the company interfered with his FMLA rights. (Lytle v. Magnolia Village Retirement Community, No. 1:08-CV-1359, ND OH, 2009)

‘Difficult’ employee? (Cont. from page 1)

more work. He took FMLA leave. But Vainisi had a temper problem, too. He would shout at his supervisor when asked to work an extra shift. He argued with coworkers and was hard to get along with. Supervisors regularly reprimanded him. Finally, he retired early after being diagnosed with various stress-related disorders. He sued for disability discrimination, arguing the employer treated him as if he were disabled. But the court rejected that argument. It said the employer showed that it believed Vainisi was perfectly capable of functioning well by calling him to work extra shifts. (Vainisi v. Cincinnati Metropolitan Housing Authority, No. 1:07CV-104, SD OH, 2009) Final note: This employer did everything right. It granted Vainisi FMLA leave when he needed it, and didn’t react to his outbursts. 2

Ohio Employment Law • August 2009

he following case offers a lesson for employers who think they have the sexual harassment problem solved. No policy will protect you if what is going on in the cubicles or on the shop floor is blatantly offensive. It may not even matter that the offended or harassed employee didn’t follow your complaint policy and report the harassment to upper management. If she tried to talk to her immediate supervisor, that’s enough. Recent case: Julie Gallagher quit her job at C.H. Robinson Worldwide after just four months. She sued, alleging that she’d worked in a sexually hostile environment. A lower court tossed out her case, but the 6th Circuit Court of Appeals has just reinstated the claims. Here’s why: Gallagher’s job as a transportation specialist required her to work in a cubicle. The workplace included 20 sales employees and several support staff. Many times, Gallagher was the only female in the office. The cubicle workstations were arranged in pods in an open floor. Short dividers separated them, but they provided little privacy. Employees could easily see what was on co-workers’ computers and desks and could hear their conversations. During her four-month tenure, Gallagher said the workplace was like a “guys’ locker room,” with frequent cursing and many derogatory comments directed at female customers and co-workers. Women were regularly referred to as “sluts,” “bitches” and worse. Gallagher herself was often told she was a “cow” with “milking udders” who “mooed” when she walked. But that wasn’t the worst of it. Males also viewed sexually explicit pictures on their computers, left pornographic magazines open on their desks and traded sexually explicit photos of their girlfriends while discussing their sexual escapades and preferences.

The lessons: Train bosses on reporting; get out of your office There are two ways to prevent lawsuits like this one. First, you must train all supervisors that they must report any alleged sexual harassment to the HR office— even if the supervisor doesn’t think it is serious. Second, you or someone from the HR office should do occasional inspections to see what is really happening and spot any obvious harassment.

Online resource For help in sorting out he-said/she-said harassment disputes, access our free white paper, Investigating Harassment: How to Determine Credibility, at www. theHRSpecialist.com/whitepapers. Gallagher complained to her supervisors, who would tell the guys to clean up their act. They never did. Gallagher said they instead intensified their sexually explicit talk. The company tried to defend itself in the lawsuit by claiming Gallagher hadn’t taken advantage of the company’s sexual harassment policy. That policy told employees they should report sexual harassment to the legal department, the branch HR manager or the branch manager. The policy included the names and phone numbers for the legal department and HR office. In addition, the policy provided a third-party, toll-free hotline and an anonymous e-mail service for reporting sexual harassment. While the trial court said Gallagher lost her case because she had failed to take advantage of the sexualharassment reporting policy, the 6th Circuit disagreed. It said that by complaining to her direct supervisor, Gallagher had made an effort to get the problem fixed. It sent the case to trial. (Gallagher v. C.H. Robinson Worldwide, No. 08-3337, 6th Cir., 2009) www.theHRSpecialist.com

Appeals Court reverses stance; gives a thumbs down to ‘association discrimination’ n a decision sure to create a buzz, the 6th Circuit Court of Appeals has ruled that Title VII does not provide retaliation protection for employees who weren’t involved in protected activity. The decision reverses an earlier panel decision and reflects the opinion of the entire court (rather than just three judges). Recent case: Eric Thompson worked for North American Stainless, where he met his future wife. While she was still his fiancée, she filed an EEOC complaint alleging that she had been discriminated against because of her sex. A few weeks after the EEOC notified the company about the complaint, it fired Thompson. Thompson had played no part in his fiancée’s complaint, and claimed he had been fired in retaliation for it. In

other words, he claimed that the company knew it couldn’t fire his fiancée because that would be retaliation, but it could fire him to get at her. In this ruling, the 6th Circuit said Congress only intended to protect those who actively pursued their rights, and not passive bystanders. Thus, it dismissed the lawsuit. It did not matter that punishing Thompson might also hurt the fiancée economically. (Thompson v. North American Stainless, No. 07-5040, 6th Cir., 2009) Final notes: The ADA has a specific provision covering discrimination against employees who “associate with” disabled individuals, so such claims aren’t covered by this decision. Chances are also good that this case will be appealed to the U.S. Supreme Court.

Changing an employee’s duties may require changing his FLSA classification hese days, organizations have to do just as much (or more) with fewer employees. That may mean employees’ job duties and responsibilities will change frequently. But be aware that such changes could alter an employee’s classification under the Fair Labor Standards Act (FLSA)—and open you up to an overtime lawsuit. That’s why every time job duties and responsibilities are modified, someone needs to determine whether the employee is exempt from overtime or is a nonexempt hourly employee. Otherwise, you may find yourself in the unpleasant situation that the following Ohio employer now faces. Recent case: Jean Kiehl worked in sales promotion and marketing for the University Hospitals Health System. She was classified as exempt under the administrative exemption based on her marketing duties. When Kiehl began to have trouble

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with a supervisor, she was fired. That’s when she sued, alleging that she should have been classified as a nonexempt hourly employee and, thus, was entitled to back pay for all hours worked in excess of 40 per week. She pointed out that her duties and responsibilities had changed many times during the past few years and argued that, for at least part of the time, she should have been classified as hourly. The court said the case can go to trial. The employer will have to explain its classification at each point that Kiehl’s duties changed. (Kiehl v. University Hospitals Health System —Heather Hill, No. 1:08-CV-763, ND OH, 2009) Final note: Tell supervisors and managers to update employee job descriptions with each change and forward them to the HR office for approval.

Legal Briefs Don’t bad-mouth terminated employees Here’s a timely warning during bad economic times: No matter why you discharge an employee or terminate a working relationship, resist the temptation to interfere with that person’s future employment prospects. In Ohio, such ex-employees will have multiple avenues for potential lawsuits. Recent case: Lucas Georgandellis, a doctor, was booted out of a medical practice. Georgandellis sued, alleging he’d been targeted for retaliation because he complained about malpractice and threatened to report the practice to authorities. He also claimed the practice defamed him by telling prospective employers he was rude, had bad bedside manners and had ‘euthanized’ a patient. The court sided with the doctor, saying his multiple claims—including defamation, whistle-blowing, breach of contract and interference with prospective business relations—could go to trial. (Georgandellis v. Holzer Clinic, No. 2:08-CV-626, SD OH, 2009)

No unemployment comp for job lost due to absenteeism An Ohio appeals court has issued a common-sense decision that shows you have the right to expect employees to show up for work. It said that absenteeism is just cause for termination and disqualifies the employee from getting unemployment benefits. Recent case: Amber Bradley was frequently absent from work, but seldom provided a medical or other excuse. When she was terminated, she applied for benefits and complained that her absences were related to things like her child’s illness or medical appointments. But the employer showed that Bradley only turned in excuses for a few absences. The court said she was fired for just cause and not entitled to unemployment comp benefits. (Marchese v. Bradley, No. 12-08-06, Court of Appeals of Ohio, 2009) Final note: Be sure to track absences and keep excuses on file. That way, you have a solid record to support your termination decision. August 2009 • Ohio Employment Law

Compliance Corner

Insight from TheHRSpecialist.com

Choosing employees for promotion: a 6-step legal process Sample policy I Applying for internal openings f your organization is typical, you’re relying more heavily on internal promotions than in the past. And as greater numbers of existing employees compete for coveted “inside” jobs, expect a corresponding rise in the number of failure-to-promote lawsuits. HR people and managers are aware of the legal dangers in hiring outside applicants. But many forget that internal promotions also carry risks.

The following sample policy comes from The Book of Company Policies (www.theHRSpecialist.com/reports). Feel free to alter it to suit your organization’s purposes. “XYZ believes that job opportunities are often best filled from within the organization. Therefore, XYZ maintains a job-posting system so you can learn about job openings and express interest in those for which you are qualified. “To apply for a posted position, you need to have the required skills, have been in your current position for at least one year and have at least satisfactory performance, attendance and punctuality.”

Base promotions on job criteria Private employers are generally free to decide when to hand out promotions and raises, unless an employment contract or collective-bargaining agreement puts limits on the organization. But you still must keep discrimination out of your promotion process. Reason: Promotions fall under the heading of “terms, conditions or privileges of employment,” meaning they’re covered by both state and federal anti-bias laws, including Title VII. So make sure your promotion decisions don’t discriminate against employees because of age, race, religion, national origin, color, sex, pregnancy or disability. To do that, remind hiring managers to base promotion decisions on neutral, job-based criteria. To bring failure-to-promote claims to court, employees must show:

• They are members of a protected group. • They are qualified for (and applied for) the promotion sought. • They were rejected despite their qualifications. • Other similarly qualified employees who weren’t members of a protected class were promoted instead.

6 steps to legal promotions Most failure-to-promote suits hinge on inconsistencies in your job-filling

Instant Online HR Answers 14-Day Free Trial Get FREE access to more than 5,000 HR articles plus a Free Bonus Report—“10 Employment Laws Every Manager Should Know.” You also get: • HR Law 101: a plain-English database of every important federal employment law • Sample policies, Q&As, customizable HR memos, self-audits and more • State-specific employment law advice. Start your free, no-risk trial today at www.theHRSpecialist.com/trial.

Ohio Employment Law • August 2009

process. To ensure a discriminationproof selection process, you should: 1. Analyze the position. Define which characteristics are essential to the job, including manual and creative skills, education, training and supervisory or managerial ability. 2. Determine neutral criteria for screening candidates, such as the employee’s work record. 3. Develop a promotion policy. Consider whether to give seniority preference and whether you should publicize job opportunities within the organization before going outside. Tip: Don’t require minimum length of service by employees before being eligible for promotions. That only penalizes fast learners or top performers by classifying them as job-hoppers. 4. Train hiring managers to base promotion decisions on neutral, jobbased criteria applied equally to all. 5. Analyze your promotion system for bias. Make sure it doesn’t eliminate certain categories of people from job advancement. Distribute job announcements widely, not just in public spaces of your workplace. 6. Avoid specific promises in company handbooks, job interviews and employment contracts that commit you to handing out promotions. STAFF

Editor: Jon Hyman, Esq., Kohrman Jackson & Krantz PLL, Cleveland, (216) 736-7226 Contributing Editor: Anniken Davenport, Esq., HROHeditor@NIBM.net Senior Editor: John Wilcox, (703) 905-4506, jwilcox@NIBM.net

Publisher: Phillip Ash Associate Publisher: Adam Goldstein Editorial Director: Patrick DiDomenico Copy Editor: Cal Butera Production Editor: Nancy Asman Customer Service: (800) 543-2055, customer@NIBM.net Vol. 3, No. 8

HR Specialist: Ohio Employment Law (ISSN 1934-1571) is published monthly by the National Institute of Business Management LLC, 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA 22043-2004, (800) 543-2055, www.theHRSpecialist.com. Annual subscription price: $299. © 2009, National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: Ohio Employment Law, please visit www.copyright.com or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA 01923, (978) 750-8400. Fax: (978) 646-8600. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney.

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In the News ... Debate heats up in Washington on health reform, taxing benefits Congress and the Obama administration have begun laying the groundwork for an overhaul of the U.S. health care system. The big question: How to pay for it? Many Democrats want the value of health insurance to be counted as income on employees’ paychecks (and thus taxed). This, however, would collide with President Obama’s campaign pledge not to raise middle-class taxes. One compromise proposal: Tax the premiums of people who earn above a certain amount, say $100,000 for individuals and $200,000 for families.

Delphi settles EEOC lawsuit over illegal medical inquiries Auto parts giant Delphi settled a lawsuit with the EEOC that alleged the company made prohibited medical inquiries into employees’ health, then retaliated against those who objected. Delphi required employees returning from sick leave to sign releases allowing the company to inquire into their medical records. When an employee objected, he was immediately terminated. Delphi will pay him $80,000. In addition, Delphi will change its sick leave policy and train

Municipal residency rule (Cont. from page 1)

townships and school districts to require their workers to live within the jurisdiction. After the law took effect, two cities, Akron and Lima, challenged the law’s constitutionality. That effort died with this decision. In the opinion, the state’s high court noted that the state constitution grants the Ohio General Assembly the power to pass laws “providing for the comfort, health, safety, and general welfare” of employees. The court ruled that the state law was a valid exercise of that power and that “home rule” provisions did not trump the state’s power. www.theHRSpecialist.com

Are Facebook postings private? Bosses, workers disagree Managers and employees have very different views of employee privacy when it comes to employees’ off-duty postings on social networking sites such as Twitter and Facebook. The majority of executives—60%—responding to a new Deloitte survey said they have a right to know how employees portray their company online. That clashes with the opinion of 53% of workers, who say their off-duty posts are none of their employer’s business. Almost three-quarters of employees (74%) acknowledge that social networking sites may very easily be used to trash an employer’s reputation. So what are executives doing? Seventeen percent formally monitor employee postings—but the monitoring may be of limited effectiveness. About half of employees (49%) say that employer monitoring would not affect their online behavior. The survey assessed the opinions of more than 2,000 employees and 500 executives. Note: For more on social networking and how to manage it, see this month’s Spotlight article on page 6.

its supervisors about which medical inquiries are allowed and which are not. Note: Employers may not go on fishing expeditions in employees’ medical records. Employers may request medical certification of the need for leave under the FMLA or obtain medical restrictions on the employee’s ability to perform the essential functions of the job. All inquiries must be job-related and of business necessity.

Congress considers legislation mandating paid sick leave Employers with 15 or more workers would have to provide them with up to seven days of paid sick leave each year if the newly introduced Healthy Families Act becomes law. (S. 1152 and H.R. 2460) Sponsored by Sen. Edward Kennedy (D-Mass.) and Rep. Rosa DeLauro (D-Conn.), the legislation would allow employees to accrue an hour of paid sick-time off for every 30 hours worked, up to seven days off per year for a full-time employee. The act is working its way through various congressional committees this summer. A coalition of HR and business groups vowed to fight the bill. The District of Columbia and the city of San Francisco already mandate paid sick leave, and several states are debating similar legislation.

Smoking bans versus job losses: Truth or just blowing smoke? University of Minnesota and Ohio State University researchers teamed up to study the effect of smoking bans on bar and restaurant employment. Although the researchers found greater job loss among establishments with smoking bans during the 45-monthlong study period, the difference was not statistically significant. Thus, the researchers concluded the smoking bans had no significant effect on hospitality industry employment. Restaurant and bar owners, who have consistently lobbied against smoking bans, claim their experience is much different.

Flextime & early-exit Fridays top employees’ summer wish list More flextime was the leading choice of summer perks sought by employees, according to a survey by Robert Half International. Flextime was identified by 38% of respondents, followed by the ability to leave work early on Fridays (32%). Employees also expressed an interest in relaxed dress codes and potluck meals and picnics. Note: As with winter holiday parties, employers should limit the amount of alcohol consumed at company summer functions. August 2009 • Ohio Employment Law

In the Spotlight

by Jon Hyman, Esq., Kohrman Jackson & Krantz PLL, Cleveland

Social networking is here to stay; it’s time to amend your e-policies C

ave drawings were the earliest form of social networking. Today people tweet their thoughts for the world to see. In between, we’ve had instant messaging, MySpace, Facebook and blogs. Online social networking is here to stay—the only change will be in what form it takes. According to a recent survey conducted by Deloitte, 22% of employees say they use some form of social networking five or more times per week, and 15% admit they access social networking while at work for personal reasons. Yet, only 22% of companies have a formal policy that guides employees in how they can use social networking at work. Before we can figure out what to do about these exploding media at work, we need to know exactly what we are dealing with. So, for the uninitiated, here is a short lesson on the various types of social networking likely being accessed from your workplace right now. • Blogs: Blog is short for weblog. Blogs either provide commentary on news or a particular subject (such as the Ohio Employer’s Law Blog), or serve as an online diary. There are hundreds of millions of blogs on the Internet, many updated every day. • Facebook: Facebook started as an online tool for college and university students to connect with each other. It has since expanded to allow anyone over the age of 13 with a valid e-mail address to open a free account. It is loosely organized into a variety of networks based on schools, location, employers, charities and other causes. Connections are known as “friends.” People update with short written blurbs about what they’re doing as well as pictures, video and the like. 6

Ohio Employment Law • August 2009

Facebook has over 200 million registered users. Even my mom has a Facebook page. • LinkedIn: LinkedIn is an online network for professionals. It allows people to search and connect via alma mater, location, employer or various user-created groups. It has over 41 million members. • Twitter: Twitter is the latest big thing in social networking. It is known as “micro-blogging.” “Tweets” are text-based posts of up to 140 characters, displayed on the user’s profile page and

delivered to followers—other users who have subscribed. I could draft a perfect socialnetworking policy to cover these new media using only a few words: “Be mature, be ethical and think before you type.” Ultimately, you may decide that such brevity is what you want for your business. For the sake of completeness, though, review the box below to consider the seven most important questions when drafting a socialnetworking policy.

Drafting a social-networking policy: 7 key questions 1. How far do you want to reach? Social networking presents two concerns for employers—how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social-networking policy must address both types of online use. 2. Do you want to permit social networking at work at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of businessrelated networking. Further, a blanket ban is also hard to monitor and enforce. 3. If you prohibit social networking, how will you monitor it? Turning off Internet access, installing software to block certain sites, or monitoring employees’ use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online. 4. If you permit employees to social network at work, do you want to limit it to work-related conduct or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return. 5. Do you want employees to identify with your business when networking online? Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers. 6. How do you define “appropriate business behavior?” Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, whether the employee wrote it from work or outside of work. 7. How will social networking intersect with your broader harassment, technology and confidentiality policies? Employment policies do not work in a vacuum. Employees’ online presence—depending on what they are posting—can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update and fine-tune other policies. www.theHRSpecialist.com

Nuts & Bolts

What’s up doc? How to collect medical info under new FMLA rules THE LAW The FMLA entitles eligible employees to up to 12 weeks of unpaid leave to recover from a serious health condition or assist an immediate family member with a serious health condition. The key to determining whether the employee or family member has a condition that meets the law’s definition of “serious health condition” is the medical certification the employer receives from the employee’s health care provider. WHAT’S NEW In January, the Bush administration updated FMLA regulations, tightening the rules regarding who may request certification. To maintain employee privacy, the person requesting the information from the health care provider must be an HR professional, a leave administrator, a management official or another health care provider. In no case may it be the employee’s direct supervisor. Further, employers may not ask health care providers for additional information beyond what the certification form contains. Health care providers are allowed, but not required, to provide a diagnosis of the patient’s condition as part of the certification. In the past, medical certification requests were tightly constrained, permitting employers to collect medical information relevant only to the particular malady that created the need for leave. By contrast, employees seeking accommodation for a disability under the ADA were required to enter an interactive process where they were free to volunteer information. Under the new regulations, employers may use information gathered in ADA accommodation discussions or medical certification requests and workers’ compensation proceedings, as well as the FMLA certifications, to determine whether leave qualifies for FMLA designation. If the employer can make the www.theHRSpecialist.com

What is a serious health condition? Under the new regulations, a “serious health condition” means an illness, injury impairment or physical or mental condition that involves one of the following: Hospital care: Inpatient (overnight) care in a hospital, hospice or residential care facility, including any period of incapacity or treatment connected to inpatient care. Absence plus treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following: • Two or more visits to a health care provider. The first visit must occur within seven days of the first day of the incapacity, and both visits must take place within 30 days. • A regimen of continuing treatment, with the first visit taking place within seven days of the onset of the incapacity. Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care. Chronic conditions requiring treatments: A chronic condition that extends over a period of time and requires periodic treatments. “Periodic visits” are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic rather than continuous. Examples include asthma, epilepsy or diabetes. Permanent/long-term conditions requiring supervision: A permanent or longterm incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of (but need not be receiving active treatment by) a health care provider. Examples include Alzheimer’s, a severe stroke or the terminal stages of a disease. Multiple treatments (nonchronic conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical treatment, such as cancer (chemotherapy, etc.), severe arthritis (physical therapy) and kidney disease (dialysis).

determination from information garnered during ADA accommodation discussions, there is no need to seek FMLA medical certification as well. Employers may require a new certification at the beginning of each FMLA year. This is true regardless of when the leave began. Employers may request recertification every six months for employees with chronic conditions. If the employee’s condition changes within six months, the employer may request a recertification. Unlike initial certifications, employers may not request a second or third opinion on a recertification. HOW TO COMPLY Employers should update their FMLA policies and procedures to reflect the new regulations. In fact, the new regulations give employers some important

tools to reduce FMLA abuse. If the employer finds an employee’s medical certification insufficient, the employer must specify in writing what information is lacking and give the employee seven calendar days to cure the deficiency. Under the old regulations, when employers substituted paid leave for unpaid FMLA leave, employees could provide just the medical certification required by the employer’s sick leave plan (if any). The new regulations give employers the right to request FMLA medical certification anytime FMLA leave is requested, whether paid leave is substituted or not. Coming next month: Coming in October:

Mandated benefits Supporting military employees

August 2009 • Ohio Employment Law

The Mailbag

by Jon Hyman, Esq., Kohrman Jackson & Krantz PLL, Cleveland

Can we terminate a no-call/no-show employee? We have an employee who has missed the last several days of work without notice. We also have a policy that says employees who miss three days without notice are deemed to have resigned and are terminated. Are there any legal risks associated with terminating this employee?

One risk that leaps to mind is potential discrimination liability if this employee is in a protected class and you have not uniformly applied this policy in the past. Another potential landmine is exposure under the FMLA if this employee is out of work because of sudden and unforeseen illness. The recent amendments to the FMLA’s regulations, however, give some much needed protection to employers who apply policies such as yours. According to the regulations (Sect. 825.303): “When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” A recent U.S. Labor Department opinion letter says these rules permit the enforcement of reasonable call-in procedures. It says: “Where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.” In your case, you should be free to terminate your AWOL employee under this regulation. If, however, you later learn that the employee could not call in because of unusual circumstances, you may have to retroactively grant FMLA leave for the absences and rescind the termination.

When can we legally dock employees’ salaries? Under what circumstances can my business make deductions from an exempt employee’s weekly salary without putting the employee’s exemption in jeopardy?

The U.S. Labor Department allows for seven specific situations in which an employer can legally deduct from an employee’s salary without risking his or her exempt status: 1. When an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability. 2. For absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.

Ohio Employment Law • August 2009

3. While an employer cannot make deductions from pay for absences of an exempt employee for jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week. 4. For penalties imposed in good faith for infractions of safety rules of major significance. 5. For unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules imposed pursuant to a written policy applicable to all employees. 6. For any time not actually worked during the first or last week of employment. 7. For any time taken as unpaid FMLA leave. A mistaken deduction could prove costly. Generally speaking, if an employer makes an illegal pay deduction, the exemption would be lost during the time period during which the improper deduction was made. The lost exemption not only applies to the affected employees but also to all employees in the same job classification working for the same managers responsible for the actual deduction.

Protecting computers from ex-employees Is there anything I can do to deter employees from stealing or damaging computers after a termination? There is a lot you can do. First, if you don’t have a strongly worded electronic communication and technology policy, considered implementing one. Second, remind employees upon termination or resignation of their duty to return all data and equipment, including laptops. Finally, there are remedies available to you if you choose to proceed to court. One is the Computer Fraud and Abuse Act, a federal law that creates a private course of action for individuals or businesses damaged by computer fraud. More federal courts are allowing employers damaged by ex-employees who fail to return computers to proceed with claims under this statute. It is an important weapon for employers because it allows for the recovery of a variety of damages and costs, including forensic investigation fees incurred in examining the computer after its return.

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Jon Hyman is a partner with Kohrman Jackson & Krantz PLL, a Cleveland-based law firm, where he concentrates on employment disputes. He can be reached at (216) 736-7226 or jth@kjk.com. His blog is ohioemploymentlaw.blogspot.com. To submit your question to Ohio Employment Law, e-mail it to HROHeditor@NIBM.net or fax it to (703) 905-8042. www.theHRSpecialist.com