When employees get sick: Legal lessons for your medical practice

Your employees may occasionally come to you with medical issues. For example, an employee advises you that his 12-year-old son broke his leg over the weekend playing soccer and needs a week off from work to be with his son, who is undergoing surgery/recovery. Or an employee tells you she has recently been diagnosed with migraine headaches and, while there is no way to predict when the need will arise, she will need a few hours on “flare-up” mornings to stay home.

There are times when employers become suspicious that an employee is exaggerating an illness or injury or that the course of treatment is inaccurate. That temptation can be even greater if the employer is a medical practitioner. It is wise to avoid this temptation, as there are a myriad of laws which, depending on the size of your practice, require very specific types of interaction, and punish employers for missteps. In order to safeguard your practice from potential liability, the best course of action is to proceed in the same manner as a non-medical employer.

David Lichtenberg

Understanding the law

The first step to properly managing disability issues in the workplace is to discern which laws apply to your business. There are various coverage thresholds. For example, the federal Americans With Disabilities Act (“ADA”) covers employers with 15 or more employees. The federal Family and Medical Leave Act (“FMLA”) covers employers with 50 or more employees within a 75-mile radius. What constitutes an “employee” under each law differs (eg, are part-time or seasonal employees counted?). There are also state-specific laws of which to be aware. For example, in New Jersey, the Law Against Discrimination, which includes disability management requirements, covers employers of any size, even those with just one employee. New Jersey also has its own family/medical statute called the New Jersey Family Leave Act which covers employers with 50 or more employees, regardless of where those employees are employed, so long as one employee works within the state limits.

There is also a current trend whereby cities are enacting their own disability management laws. San Francisco, Portland (Oregon), Seattle, New York City, Jersey City (NJ) and Newark (NJ) have all passed paid sick-leave laws, which require covered employers to provide paid leave to covered employees. Given the maze of employment laws and the interaction between them, it is wise to take the time to understand which laws apply to your business, particularly if your business is growing and may evolve to a point where it is covered by laws today that it was not covered by a year or two ago.

Amanda K. Caldwell

Understanding your obligations

Once you have determined which laws apply to your business, the next step is understanding the obligations those laws place on your business. The following are just some of the questions that need to be answered:

1. Do you have to post required notices in the workplace? Generally, the answer is yes (with regard to covered laws), although many employers in the modern age wonder if electronic notice upon hire is sufficient to meet a posting requirement.

2. Do you need to include policies in your handbook that outline specific disability management practices? Under the FMLA, the answer is yes (and New Jersey’s state leave law has a similar requirement).

3. What is an employee entitled to under each applicable law? The answer will change depending on the specific circumstances. Under the FMLA, a covered employee is entitled to 12 weeks of unpaid, job-protected leave to deal with his/her own or a covered family member’s serious health condition. Those 12 weeks can be taken in a single block, in separate blocks of time, or intermittently. Under the ADA, an employee is entitled to a reasonable accommodation provided that said accommodation does not present an undue burden on the employer. This is a much more amorphous issue to analyze.

PAGE BREAK

4. When does an employee put an employer on notice that a disability management law has been triggered? The law is consistent in that there are no magic words that an employee needs to use to advise his/her employer that he/she needs time off or an accommodation. That said, an employer need not (and should not) guess whether someone has a medical issue. Rather, once the employee provides enough information to the employer for the employer to discern that a need for leave (or an accommodation) arises, the employer has an obligation to participate in the interactive process by inquiring further as to what is needed, and then make appropriate decisions. Under the FMLA, specific paperwork will need to be sent out. That paperwork will generally include a medical certification form to be completed by the employee’s medical practitioner(s).

5. When can I terminate an employee who is on leave? This is probably the most critical inquiry. Most employers become concerned that when any employee is out for a significant period of time, the business is impacted, and therefore, the employer wants to remedy the situation. However, unless the employer has taken all of the proper steps up to the point where termination is being considered, the risk is significant that a termination may result in legal action and potential liability.

For example, if the employee is covered under the FMLA, and does not fall within the very narrow definition of “key employee” as defined by the statute, he/she cannot be terminated within the 12 covered weeks, and cannot be disciplined in any way for taking this time off. To do so would be an act of retaliation, which is strictly prohibited. Further, an employer who terminates an employee the instant those 12 weeks have expired will generally not be standing on safe ground. Rather, the prudent course of action would be to explore whether there are additional accommodations beyond the FMLA that the employee seeks, and discern objectively whether the business can take any action short of termination to accommodate the employee without resulting in an undue burden on the business. Keep in mind that meeting the “undue burden” requirement under the ADA is not easy for an employer.

Importance of employee training

Lastly, an employer should take appropriate steps to ensure that its managerial staff are properly trained to deal with medical- or leave-related issues. In most instances, a company’s managers are the first ones to hear about these types of issues, and the first ones charged with ensuring that a proper response is given. Responding in the wrong way, even with the best intentions, can derail the entire process. As a result, it is strongly recommended that, as an employer, you provide your managers with the tools to recognize the red flags in dealing with disability management issues, understand who to go to when these issues arise, and are instructed regarding what to say, and what not to say. In short, there are significant differences between diagnosing a patient, and dealing with an employee in need of a medical accommodation. Be mindful of the challenges, and be prepared.

David Lichtenberg, JD, and Amanda K. Caldwell, JD, can be reached at Fisher & Phillips, LLP, 430 Mountain Ave., Murray Hill, NJ 07974; 908-516-1050; email: dlichtenberg@laborlawyers.com or acaldwell@laborlawyers.com.