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DISABILITY UPDATE – House Expands ADA Coverage Even if You Have a TPA
By George S. Crisci*
Congress recently passed a bill by a wide margin (402-17) that, if
passed, would overturn Supreme Court precedent and broadly expand
workers’ rights under the Americans with Disabilities Act (“ADA”).
Supporters of the bill argue that the amendments to the ADA would
provide “a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.”
The amendments would operate to expand coverage under the ADA
to include a greater amount of mental and physical impairments. First,
the definition of disability would expand to prevent an employer from
considering the impact of “mitigating measures” an employee might use to
control his disability, e.g., (medication, prosthetics, or hearing
aids, etc. that prior Supreme Court decisions allowed). Second, the
definition would expand to include “episodic” disabilities or conditions
that are in remission. Currently, disabilities include only those
“physical or mental impairments that substantially limit one or more
major life activities,” such as performing manual tasks, seeing,
hearing, walking, standing, and thinking.
The amendments further would instruct courts to consider
“substantially limits” in a broad sense. Previously, the Supreme Court
had narrowed the definition of this term to a strict and demanding
standard. The ADA’s potential amendments would render those decisions
moot.
Finally, the amendments would allow for the Attorney General,
the Equal Employment Opportunity Commission, and the Secretary of
Transportation to issue regulations and guidance on how the amended
definitions should be construed. Supporters of the amendments argue that
this will provide for a nationwide mandate for the elimination of
discrimination against individuals with disabilities by providing
employers with guidance on how to follow and adhere to the ADA.
The potential amendments, if passed by the Senate and signed
into law by the President, will go into effect on January 1, 2009.
Practically, persons with conditions such as cancer, diabetes, and
epilepsy – who before were not considered “disabled” – would be covered
under the amended ADA. This expansion of coverage will likely open the
door to more lawsuits against employers as the burden of proof for
plaintiffs becomes more lax.
Employers should be aware of these possible changes to the ADA
looming on the horizon and be prepared in the event the bill becomes law
and they are required to provide additional employees with
accommodations.
*George S. Crisci is an OSBA Certified
Specialist in Labor and Employment Law. George represents employers in
all facets of employment law, and both public and private sector
management in actions before the NLRB. For more information concerning
any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
ESQUIRE BEWARE: Attorney Found Liable for Unauthorized Disclosure of Medical Records
By Lois A. Gruhin
The Ohio Supreme Court recently affirmed a lower court
decision in favor of a Plaintiff whose medical records were released to
an unauthorized party by the Defendant, his former wife’s divorce
attorney. In
Hageman v. Southwest General Health Center, the
attorney – who gained access to the disputed medical records through
discovery proceeding in the domestic relations matter involving the
Plaintiff and his former wife – released a copy of the records to a
County Prosecutor after the Plaintiff was charged with domestic
violence. The Court held that the attorney could be found liable to the
Plaintiff for her unauthorized disclosure.
In 2003, the Plaintiff began seeing a psychiatrist. Through
the course of treatment, he admitted to having homicidal thoughts about
his wife and was subsequently treated for bipolar disorder. When his
wife filed for divorce, plaintiff filed a counterclaim seeking legal
custody of the couple’s minor son. The wife’s attorney, thereafter,
served subpoenas on the Plaintiff’s psychiatrist requesting his medical
records and psychotherapy notes. Ultimately, the wife’s attorney
received medical documentation from the Plaintiff’s psychiatrist.
At some point later, the Plaintiff was accused of assaulting
his wife at home and was charged with domestic violence. On the day of
trial, the prosecutor met with the wife’s attorney where the attorney
shared the medical records containing the Plaintiff’s nefarious thoughts
about his wife. The records were never used or entered into evidence
and the Plaintiff was acquitted of all charges.
After entering into a separation agreement with his former
wife, the Plaintiff filed suit against his psychiatrist, the
psychiatrist’s hospital employer, his now ex-wife, and her attorney. The
trial court granted summary judgment on behalf of every defendant,
including the attorney. On appeal, the Court of Appeals affirmed for
every defendant except the attorney on grounds that she had “overstepped
her bounds … when she disseminated information regarding (the
Plaintiff’s) psychiatric condition to the prosecutor.”
Affirming the lower court judgment, the Supreme Court held
that while the Plaintiff had knowingly placed his medical condition into
evidence during the custody proceeding, his implied authorization and
waiver was limited to that matter and did not extend as a waiver to
unauthorized disclosure to third parties, such as the prosecutor in the
Plaintiff’s criminal trial.
The Court held that the public policy surrounding medical
records confidentiality trumped a purported expansive waiver of privacy
obtained during litigation. Privacy is vital, according to the Court,
since the mere possibility of disclosure of sensitive records could
impede successful treatment, especially in terms of psychotherapy, due
to the possibility of embarrassment or disgrace. In terms of Plaintiff’s
situation, the Court agreed that he might have been pressured into
settling with his former wife due to the potential embarrassment of
disclosure of his medical treatment.
Because an individual must be encouraged to seek such
treatment, the Court held that any medical waiver is strictly limited to
the particular litigation. Accordingly, an attorney who obtains medical
records lawfully through the discovery process could be liable for
later disclosure unrelated to the specific matter in which they were
procured.
Before releasing any confidential or proprietary information
about an employee, employers should carefully examine the potential use –
and misuse – of that information and take adequate precaution to ensure
that the records are kept confidential and used only for the limited
stated purpose for which they were procured.
NO RETALIATION: Violating Privacy Policy Is Not Protected Activity
By Michael V. Heffernan
The Sixth Circuit Court of Appeals, in
Niswander v. Cincinnati Insurance Company,
recently held that a female claims adjuster, who was fired after she
disclosed files containing customer names and other confidential company
information to her attorneys pursuing an equal pay collective action,
did not engage in “protected activity” under Title VII.
In 2003, Kathy Niswander opted into a collective action
lawsuit against her employer, Cincinnati Insurance (“Cincinnati”),
alleging that the company had discriminated against her on account of
her sex in violation of the Equal Pay Act (“EPA”). After she joined the
lawsuit, Niswander complained that she was being discriminated against
in retaliation by her supervisors. Ultimately, in 2005, Niswander filed a
separate Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) alleging that she had been retaliated against for
engaging in protected activity; namely, joining the EPA lawsuit.
During the course of the EPA litigation, Niswander’s
attorneys sent her a letter requesting that she “look around [her] house
and office for any documents [she thought] might be remotely helpful to
our case and send them in right away.” Her attorneys further requested
documents from Niswander in response to Cincinnati’s discovery requests
and warned her of the potential consequences of her failure to cooperate
in discovery. In this letter, her attorneys requested “any documents
related to (Niswander’s) employment” that she had not already submitted.
In response to the letters, Niswander provided many documents
that she believed were relevant to Cincinnati’s alleged acts of
retaliation, but admittedly had no documents supporting an EPA claim.
Some of the documents produced by Niswander were claim-file documents
that contained confidential information about Cincinnati policyholders.
According to Niswander, she believed that since Cincinnati had made the
discovery requests, this disclosure was allowed. When Cincinnati
received the documents, however, they asserted that she had violated the
company’s Privacy Policy, its Code of Conduct, and its Conflict of
Interest Policy, all prohibiting the disclosure of policyholder
information. In December 2005, Cincinnati terminated Niswander’s
employment and Niswander filed a separate lawsuit alleging that her
termination was retaliation for filing her Charge with the EEOC.
The Sixth Circuit affirmed the trial court’s grant of summary
judgment on Niswander’s retaliation claim. The court held that
Niswander’s delivery of the confidential documents was not reasonable as
“participation” under Title VII because she admitted that the documents
were not relevant to the claims in the lawsuit. The court applied the
following six factors to determine whether Niswander’s act was
reasonable under the opposition clause: (1) how the documents were
obtained; (2) to whom they were produced; (3) the content of the
documents, both in terms of the need to keep the information
confidential and its relevance to the employee's claims; (4) why the
documents were produced; (5) the scope of the employer's privacy policy;
and (6) the ability of the employee to preserve the evidence in a
manner that does not violate the employer's privacy policy.
The court held that Niswander knowingly violated the
company’s policies when she searched through policyholder files to
obtain evidence of Cincinnati’s alleged retaliation. The court held that
most of the factors favored the policy and that Niswander could have
made a record of the alleged retaliation without violating the
policyholders’ privacy. The court reasoned that, rather than invade
client files, Niswander could have made notes of Cincinnati’s conduct
that she felt was retaliatory.
While this case is certainly a win for this employer,
employers should take precaution when terminating any employee that is
involved in a Title VII lawsuit and/or administrative proceeding against
their company for an alleged violation of a company policy. Prior to
taking an adverse employment action, employers should consider whether
the employee’s conduct passes the balancing test recently established by
the Sixth Circuit.
*Michael V. Heffernan regularly defends
employers involved in employment litigation and in administrative
hearings before the Equal Employment Opportunity Commission and various
state administrative civil rights agencies.
TIMELINESS - Retaliation Can Accrue Past Termination
By Patrick J. Hoban*
A New Jersey appellate court recently held that an employer can be found liable for retaliation for conduct that occurs
after the employee’s separation from his or her employment. In
Roa v. LAFE (“
Roa”),
Fernando Roa and his wife, Lilliana Roa, alleged that they were
discriminated and retaliated against by their former employer, LAFE, a
distributor of “Hispanic Food Products,” and its Vice-President, Marino
Roa.
Fernando and Lilliana alleged that Marino was engaged in a
number of extramarital relationships with several female employees of
LAFE. In February, 2003, when Marino’s wife discovered the
relationships, in an attempt to shift blame for his conduct, Marino told
his wife that Fernando was the one involved in the relationships.
Initially, according to Fernando, he went along with the ruse in order
to protect Marino, his superior, in an effort to save his job.
Ultimately, however, Fernando came clean to Marino’s wife and confirmed
Marino’s involvement in the affairs.
Following Fernando’s confession to Marino’s wife, Fernando
and Lilliana allege that Marino engaged in a campaign of harassment
against them. At one point, Fernando complained to upper-level
management that Marino engaged in the sexual harassment of employees.
Fernando’s complaint was rebuffed and Fernando (on October 12, 2003) and
Lilliana (on August 24, 2003) were ultimately terminated, allegedly in
retaliation for making the complaint about Marino’s conduct. The Roa’s
filed their Complaint against LAFE and Marino Roa, under New Jersey’s
Law Against Discrimination (“L.A.D.”), more than two years later, on
November 5, 2005.
The Defendants argued that the Plaintiffs’ claims could not
have accrued past the dates of their terminations. Thus, they argued,
given the L.A.D.’s two-year limitations period, both Fernando and
Lilliana’s claims were untimely. In response, Fernando and Lilliana
alleged that LAFE improperly interfered with Lilliana’s unemployment
benefits by indicating to the state unemployment commission that she had
been fired for “misconduct,” resulting in Lilliana not receiving
unemployment benefits until February 2004. The Roa’s further argued that
LAFE improperly denied a medical insurance claim by terminating
Fernando’s coverage on September 30, 2003, ahead of his discharge. They
alleged that an early October 2003 claim that accrued during Fernando’s
employment was not denied by the health insurer until November 11, 2003.
Accordingly, they claimed that the limitations period accrued on
November 11, 2003 for Fernando and February 2004 for Lilliana, within
the two-year limitations period, as LAFE’s conduct in denying the
medical claim and the unemployment claim was in retaliation for
Fernando’s harassment complaint.
In their Reply brief, the Defendants countered that Fernando
had to have known of his potential claim, at the latest in October 2003,
because he had a lawyer negotiating the terms of his severance at the
time of his discharge. With respect to Lilliana, they argued that she
knew of the denial of her unemployment benefits not when she began to
receive them (in February 2004), but rather on October 21, 2003, when
the state unemployment commission issued a finding denying her claim.
Accordingly, the Defendants maintained that Fernando and Lilliana’s
claims were time-barred.
Although the trial court agreed with the Defendants, the
appellate court reversed in part, finding that the Supreme Court
decision of
Burlington N. v. Sante Fe Ry. Co. (“
Burlington”),
which separated a substantive violation under Title VII from
independent acts of retaliation that need not be related to the
workplace, controlled. The court held that allegations of retaliation
under the L.A.D. likewise were not confined to a plaintiff’s dates of
employment. Rather, both Title VII and state law employment
discrimination laws’ anti-retaliation provisions create separate and
distinct causes of action and an employer’s continuing violation of
these statutes could accrue after the employee’s termination. The Court
found that the denial of Lilliana’s unemployment claim and the denial of
Fernando’s medical insurance claim could be construed as continuing
violations of Title VII and the L.A.D.’s anti-retaliation provisions.
The court ultimately upheld the dismissal of Lilliana’s
claims, however, finding that she knew, at the latest, on October 21,
2003, that her claim for unemployment benefits had been denied. With
respect to Fernando, conversely, the court held that he did not learn of
the denial of his medical insurance claim until November 11, 2003, less
than two years before he filed his Complaint, on November 5, 2005.
Thus, the court allowed his claims to survive.
The
Roa decision illustrates how courts likely will apply
Burlington,
finding that violations of Title VII or a state’s civil rights
statutes’ anti-retaliation provisions can accrue after an employee’s
termination date. When dealing with post-employment benefits such as
health care coverage and/or unemployment claims, employers should
carefully consider whether their conduct could be construed as a
“continuing violation” of either the applicable state law against
discrimination and/or Title VII, and extend the relevant limitations
period.
*Patrick J. Hoban practices in all areas
of labor and employment law, including employment discrimination and
wrongful discharge. For more information on Title VII claims or any
labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Z&R Shorts
Zashin and Rich Co., L.P.A. Named As Approved Counsel by Cincinnati Insurance
Cincinnati Insurance recently named Zashin and Rich Co., L.P.A.
as “approved counsel” for employment practices liability insurance
claims. In the event that your company has a claim under a Cincinnati
Insurance policy (e.g., a demand letter, charge of discrimination or a
lawsuit), simply ask your insurance broker to request Zashin and Rich
Co., L.P.A. as defense counsel in the matter.
Zashin & Rich Co., L.P.A. Welcomes Mike Heffernan to its Growing Labor and Employment Group
Zashin & Rich recently welcomed Mike Heffernan to the firm
and its expanding Employment and Labor Group. Mike defends employers in a
wide variety of labor and employment matters, including harassment,
discrimination, and federal and state civil rights. Mike received his
undergraduate degree, cum laude, in Urban Affairs from Cleveland State
University in 1998 and graduated from the Cleveland-Marshall School of
Law in 2001, where he was Articles Editor for the Cleveland-Marshall Law
Review. Prior to joining Zashin & Rich, Mike served as the Chief
Judicial Attorney of the Cuyahoga County Court of Common Pleas.
Please join us in welcoming Mike to Z&R!
Upcoming Seminars
September 8, 2008
Steve Dlott and
Patrick Watts
will present the “Ten Biggest Leave of Absence/Return-To-Work Mistakes
Aging Services Providers Make” to the Advocate of Not-For-Profit
Services For Older Ohioans (“AOPHA”) 2008 Annual Conference and Trade
Show, which will be held at the Greater Columbus Convention Center.
Steve and Patrick will provide protocols and decision trees to assist
health care organizations in the resolution of these complicated issues.
For more information and/or to register, call (614) 444-2882.
September 24, 2008
Jon Dileno will be a panelist at the AMS
Conference on Labor Arbitration at the Crowne Plaza, Cleveland City
Centre Hotel on the subject of "Just Cause for Discipline and Discharge,
the Basics. The Perspective of the Employer and Union
Representatives."
September 25, 2008
Steve Dlott will present “Defending Workers’
Compensation Claims” to the Lake/Geauga Chapter of the Society for Human
Resource Management (“SHRM”) as part of the “Effective HR – It’s All
About People!” workshop on September 25, 2008 at the Radisson
Hotel/Eastlake. For more information or to register, call (440) 392-2168
or email: info@lgashrm.org.
September 10-13, 2008
George Crisci will be part of a panel discussion
at the Labor & Employment Law Section of the American Bar
Association’s 2nd Annual CLE Conference in Denver, Colorado from
September 10-13, 2008. George will serve as a panelist for the
“Negotiating Skills in Collective Bargaining” discussion that will focus
on what works and what does not work in the context of labor
negotiations and useful tools for working in the thicket of public
sector bargaining.
October 16 and 17, 2008
George Crisci and
Stephen Zashin
will speak at the 45th Annual Midwest Labor and Employment Law Seminar
presented by the Ohio State Bar Association October 16 and 17, 2008 in
Columbus. George will present “Public Collective Bargaining
Developments” to the conference and Stephen will present an update on
FMLA and other leave law.
