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02.17.15

Minimize the Risk of Being Sued – Understand Employment Law

Every health care practice is subject to numerous federal and state employment laws. Several issues have become the focus of recent enforcement activities against health care employers, but there are ways physician practices can protect themselves.

Wage and Hour Issues

The number of complaints filed under the Fair Labor Standards Act has been rising steadily, up nearly 5% in 2014 over the prior year, according to the Federal Judicial Caseload Statistics for the period ending March 31. Class action lawsuits that involve several employees are common.

Many of the cases against health care employers challenge the use of “auto-deduct” time keeping systems. This is the practice of automatically deducting time from employees’ pay for a meal period even though they did not take the break or they had to work during that time.

Auto-deduct policies are not per se illegal, but they may have to be modified to comply with the latest court rulings. For example, if you have adopted such an auto-deduct policy, make sure the override procedure is not complex, employees are trained on how to override the deduction, and managers do not prevent employees from exercising the override option.

Leave of Absence Policies

Employees eligible for the Family and Medical Leave Act (FMLA) are entitled to 12 weeks of job-protected leave. After the 12 weeks are up, the employee might qualify for additional leave as reasonable accommodation under the Americans with Disabilities Act (ADA).

The federal Equal Employment Opportunity Commission (EEOC) has sued employers, including many in health care, to challenge policies that require automatic termination of employees who are unable to return to work after a fixed period of leave (such as six months). Normally, indefinite leaves are not required by the ADA, but no-fault termination policies that do not allow for any leave extension invite a challenge from the EEOC.

To help reduce your risk of losing a lawsuit, avoid automatic terminations under leave of absence policies and consider reasonable accommodation in extended leave situations. It is also important to give appropriate training to managers.

Pregnancy Discrimination

The Pregnancy Discrimination Act prohibits an employer from discriminating against a woman because of her pregnancy or medical conditions related to pregnancy or childbirth. The act does not expressly require “reasonable accommodation,” under the ADA, of a woman’s disability resulting from pregnancy.

In July 2014, however, the EEOC issued guidance that requires accommodation of a pregnant woman even if she is not disabled. Specifically, the EEOC guidance states that an employer may not confine light duty to those suffering from workplace injuries, but must provide light duty to pregnant employees who need it as well. The U.S. Supreme Court is expected to issue a ruling resolving this matter in the first half of 2015.

Criminal Records

The EEOC has also pursued litigation against employers who reject applicants because of their criminal records. The EEOC cited that hiring policies that include blanket exclusions of people with criminal records have a disparate racial impact, and therefore violate the Civil Rights Act.

To prevail against such claims, the employer must show that its policy is job-related and consistent with business necessity. The employer can accomplish this by identifying specific offenses related to applicants’ suitability for a particular job, deciding how recent a conviction must be to disqualify a candidate, and individually assessing each applicant. Those applicants should be given the opportunity to correct errors or explain any mitigating circumstances.

Getting to the Nitty-Gritty

Health care practices, as employers, face many legal risks. We have touched on only some of the federal employment law issues. There are many other federal, as well as state laws to consider.

One of our Health Care Group specialists can help you sort through the various issues to ensure that your practice abides by federal and state employment laws. For questions, contact Bob Rifkin. Visit orba.com to learn more about our Health Care Group.

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