Whistleblowers, Pre-Employment Medical Exams, FMLA

 

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

HR4U 101 Workshop, January 14, 2015. This will include information regarding the new employment laws and regulations for 2015 including the new “Paid Sick Leave” law.

Here is a link with more detailed information on the Workshop.

For 2015, more details to follow:

January 21, Webinar on Coaching for Improved Performance

February 11, Webinar on Discipline

February 21, Institute of Management Accountants, San Gabriel Valley

 

Lawyer Wins $2.5M in Whistleblower Claim against University

A former senior legal counsel at Chicago State University has been awarded nearly $2.5 million in a whistleblower case based on an Illinois ethics law governing state employees.

 

Jurors deliberated for less than an hour before awarding James Crowley $2 million in punitive damages and $480,000 for four years of back pay.

 

Crowley had alleged he was fired in retaliation for reporting questionable contracts to the Illinois Attorney General’s office and for reporting what he deemed to be a threat made amid a disagreement over the disclosure of public documents.

 

Chicago State had claimed Crowley was fired for using university funds to pay for a reserved parking space and for giving preferential treatment to a student who was his friend, the story says. The university alleged Crowley used scholarship funds to pay for the student’s textbooks and university funds to buy a plane ticket so the student could attend a Hawaii conference. The trip was later canceled.

 

When Should You Conduct Pre-Employment Medical Exams?

Employers can’t conduct a pre-employment medical exam until after making a conditional job offer. The reason for this law is to isolate an employer’s consideration of an applicant’s non-medical qualifications from consideration of any medical information. This allows job applicants to shield their private medical information until they know that, absent an inability to meet the medical requirements, they will be hired, and that if they are not hired, the true reason for the employer's decision will be transparent.

 

But many employers are unaware that both the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) strictly dictate the sequence in which employers collect pre-hire information.

 

Employers must make sure that the pre-employment medical exam is the final step in the pre-hire process. Employers must complete all non-medical components of the pre-hire process (such as background checks) and make a conditional job offer before conducting a medical exam.

 

California’s disability regulations specifically state that an employer may condition a “bona fide offer of employment” on the results of a medical exam or inquiry (including psychological exam/inquiry) to determine an applicant’s fitness for the job in question.

 

The ADA also prohibits medical examinations and inquiries until after the employer has made a “real” job offer to an applicant. “A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.”

 

Courts have found that employers can be liable for not following the correct pre-hire sequence. For example, in Leonel v. American Airlines Inc., the Ninth Circuit held that employers must follow a certain pre-hire sequence and can’t ask for a pre-hire medical exam before determining if the applicant passed the background check. The employer made conditional offers of employment contingent upon passing background checks and medical examinations. Instead of waiting for the results of the applicants’ background checks, the employer immediately sent the applicants to its on-site medical department for medical exams.

 

As both the EEOC and the California regulations note, an employer may not always be able to reasonably obtain and evaluate all non-medical information at the pre-offer stage. If an employer can show that is the case, the offer would still be considered a real offer and the medical exam could proceed.

 

For instance: An applicant might state that his current employer should not be asked for a reference check until the potential employer makes a conditional job offer. In this case, the potential employer could not reasonably obtain and evaluate the non-medical information from the reference at the pre-offer stage.

 

What does this mean for employers? Revise your practices if you normally send a conditional job offer to potential employees and conduct your background check at the same time (or after) the pre-employment medical exam.

 

Conduct the medical exam as the final step in the pre-hire process after conducting all other non-medical parts of the process, such as personal interviews, background checks or job testing. Consult legal counsel if you believe this requirement is burdensome for your particular business.

 

Make certain that all other requirements for pre-employment exams are also met:

• All entering employees in similar positions must be subjected to such an examination.
• If the results of the exam would result in disqualification, the applicant must be allowed to submit independent medical opinions for consideration before any final determination on disqualification is made
• The results must be maintained on separate forms and must be treated confidentially as medical records.

 

 

Can Employee Decline FMLA Leave?

The Ninth Circuit recently held that an employee can decline to exercise his/her leave rights under the federal Family and Medical Leave Act (FMLA), even when the reason the employee is taking time off would qualify for FMLA purposes. The court also noted that if the employee chooses not to exercise FMLA rights, it’s logical that the employee also gives up any FMLA protections. This case may be a surprise to many employers who have the practice of designating leave as FMLA whenever there is a qualifying reason.

 

Maria Escriba worked for Foster Farms at a processing plant in Turlock, California, for 18 years. She requested a two-week period of leave to care for her ill father in Guatemala, and the employer granted the request. Escriba did not return to work on the scheduled date and did not contact anyone affiliated with Foster Farms about extending her leave until 16 days after she was scheduled to return to work.

 

She was terminated for failing to comply with the company’s three-day no-call/no-show rule. Escriba argued that she should not have had to call in after the end of her approved two-week leave because the company should have placed her on FMLA leave.

 

There was a dispute between the parties about exactly what Escriba discussed with human resources and her supervisor regarding her need for leave. Foster Farms claimed that:

• Escriba specifically requested only a two-week vacation;
• She was asked twice if she needed additional time after the vacation, but she responded no; and
• She was also told that if she needed additional time off, she needed to visit HR and submit any additional documentation to them.

 

According to Foster Farms, Escriba requested and used FMLA 15 times in the past but, in this instance, only requested vacation time, not FMLA leave.

 

Escriba, on the other hand, argued that when she notified Foster Farms about her need to take time off to care for her ailing father, FMLA protection was automatically triggered and her termination was an interference with her FMLA rights.

 

Because there were conflicting accounts of the events, the case went to a jury. The jury decided in favor of Foster Farms, finding that Escriba knew about FMLA leave and how to request it, but that she unequivocally declined to take more time off or to specifically request FMLA leave.

 

Best Practices

Ask questions! If you are unsure what type of leave the employee is asking for and it might be FMLA/CFRA, ask. Not following up and asking the questions can result in liability. It is better to be clear right from the start. What type of time off is the employee requesting? Only vacation time?

 

Engage in a conversation with the employee. Determine if the employee is requesting FMLA/CFRA leave and obtain any necessary information concerning the leave, such as commencement date and duration. If the leave is for a qualifying reason (to care for a seriously ill family member, for instance), is the employee specifically declining use of FMLA/CFRA at this time?

 

Discuss the employee’s rights and the pros and cons of designating the absence as FMLA/CFRA. Remind employees that FMLA/CFRA provides protected leave, while using vacation and/or sick time does not necessarily create job protection for employees. Also, remind employees that company policy dictates how employees use vacation and sick time.

 

Provide the FMLA – Notice of Eligibility and Rights and Responsibilities form if the employee requests FMLA/CFRA-related leave or when you acquire knowledge that the leave may be for a qualifying reason. Better to be safe and provide the notice because failing to provide it can result in liability.

 

Document any conversations – including specifically the fact that the employee was notified of FMLA rights and FMLA was denied, if applicable.

 

Train supervisors to get the information needed when an employee calls in or shoots the supervisor an email or a text. Teach supervisors how to recognize when a request might be because of a FMLA/CFRA qualifying event.

 

Factoids

• California has 40 percent of ADA lawsuits nationwide. However the state has only 12 percent of the nation’s disabled population.
• The average couple should expect to spend more than $220,000 in health care expenses over the course of their retirement.

 

Top three reasons why employers offer workplace flexibility

• 35% employee retention
• 14% recruitment
• 12% increased productivity

 

Quotes

"You can’t build a reputation on what you are going to do.”

~Henry Ford~