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We advise business in the following areas: Employee Benefits, Litigation, Business Advisory and more.

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Every criminal case is a serious matter. There are lifelong consequences for any person accused or convicted of committing a crime.

Since 1976, our litigators have effectively and efficiently represented clients in federal and state courts in business litigation, municipal law, employment law, personal injury and a variety of complex litigation.

Since 1976, our litigators have effectively and efficiently represented clients in federal and state courts in business litigation, municipal law, employment law, personal injury and a variety of complex litigation.

Since 1976, our litigators have effectively and efficiently represented clients in federal and state courts in business litigation, municipal law, employment law, personal injury and a variety of complex litigation.

As a part of the "American Recovery and Reinvestment Act of 2009" a civil penalty structure was put in place for Health Insurace Portability and Asccountability Act (HIPAA) violations.

Our experience uniquely qualifies us to advise in governmental issues: Annexation, Associations/Non-Profits, Cities, Towns, & Counties, Colleges & Universities, Economic Development, Elections and more.

We provide legal advice for businesses in the following areas: Agribusiness Energy, Diversified Businesses, Emerging Businesses, Federal & State Tax, Finance, and more.

Probate is the court procedure by which a decedent’s property is administered for the purpose of passing ownership of assets remaining in the decedent’s name at his/her death.

Since 1976, our litigators have effectively and efficiently represented clients in federal and state courts in business litigation, municipal law, employment law, personal injury and a variety of complex litigation.

HEALTHCARE LAW NEWS - VOLUME 42

WHISTLEBLOWER PROTECTION EXPANDED

This week the United States Supreme Court opined that whistleblower protections apply not just to publicly traded companies, but also to subcontractors that do business with them.  The Justices were interpreting part of the Sarbanes-Oxley Act of 2002 to reform Wall Street and set standards for all U.S. publicly traded companies, boards, managements and public accounting firms.

Many believe that the Act only applied directly to publicly owned companies.  However, the Court noted that their decision was similar to how the U.S. Department of Labor had interpreted the law for nearly 10 years.  Justice Ginsburg wondered whether Congress would want to exclude from the whistleblower protection the countless professionals “equipped to bring fraud on investors to a halt”.  In this particular case the whistleblowers were determined to be legally protected against retaliation after they raised concerns to the parent company of Fidelity Investments about how some mutual funds were being managed.  In this case, Fidelity’s mutual funds themselves are public companies, but FMR, LLC, the parent company, and the management company, Fidelity Brokerage Services, LLC, were not “publicly traded” companies.

The lessons from this case:

1.   The reach of this law is much, much broader than assumed over the last 10 years.

2.   Artificial constructs Fidelity tried to use to separate the publicly traded side from a privately owned or managed side do not appear to be effective.  If your company is part of a structure that includes publicly traded companies, all of the employees of all the affiliates may be covered.

3.   Given the increasing complex management and ownership structures of modern hospital systems, which often combine not for profit, for profit, publicly owned and privately owned segments, it may be that the large hospital systems in this Country are now subject to Sarbanes-Oxley, at least the whistleblower protection from the top to the bottom of each subsidiary or affiliate.  Each hospital system, medical device maker, insurer or other payor needs to carefully review employee whistleblower provisions and protections and their methods of dealing with, investigating and reporting about such matters.

SHOWING UP FOR WORK

One of the most litigated areas in employment law the last several years has been FMLA/ADA claims where employees claim to have chronic health conditions that interfere with their attendance at work.  Many of these employees, in the early stages of their illness, take FMLA leave and then seek ADA-based accommodations for their chronic illness.

Employers find such cases difficult often because of the extended nature of such accommodations, and employees’ inability or unwillingness to regularly attend work.  A recent federal district court case is a good primer in how employers should approach these cases.  Mecca was a PICC nurse who inserted catheters into patients’ arms.  Apparently, Mecca suffered from panic attacks and anxiety.  After one FMLA leave his doctor restricted Mecca to working no more than three days per week.  This required the employing hospital to alter his schedule, which the hospital did.  However, his chronic illness was not improving, and there was no indication that regular attendance would ever be achieved.  Mecca then resigned and sued the hospital claiming lack of ADA accommodations.

If you would like to read the case or the details, I would be glad to forward it to you, but my take on the case is as follows:

1.   Employers are not required to wait indefinitely for an employee’s chronic medical condition to be corrected or improved, particularly where such improvement is uncertain.

The Court found that regular, reliable attendance at work is an essential function of most jobs.  When an employee requests an accommodation allowing the employee to arrive at work at any time, and irregularly, it is not a reasonable accommodation request under ADA.

2.   Don’t interfere with employee FMLA rights.  As frustrating as some FMLA leave requests are when they are intermittent and uncertain, you must let the FMLA process work its way through.

3.  When the FMLA process is concluded, whether permanently or temporarily, the employer should have two questions, how can we help you and can you attend on a reliable and regular basis?  This so called interactive process should be undertaken and repeated as necessary and documented.

4.   If you have an employee whose attendance is irregular or unreliable, and it appears from an employee claim that it is caused by medical condition, the employer has the right to inquire with the employees’ physician whether the requested accommodation will help the employee perform their duties in the present or immediate future and regularly and reliably attend those duties.

In short, follow FMLA rules and require reliable and regular attendance where appropriate.


This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.