KEEPING UP WITH
THE TIMES
Presented by
Bob Gregg
Boardman Law Firm
Agenda
I. Introduction
II. ADAAA
III. FMLA
IV. WC/ADA/FMLA
V. Drug and Alcohol Testing
VI. Electronic Workplace
VII.Conclusion
Laws
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ADA
Wisconsin Fair Employment Act
Genetic Information Nondisclosure Act
Family and Medical Leave Acts
Worker’s Compensation
Wage and Hour Laws
Privacy and Confidentiality Laws
Approaching Difficult Situations
Discussion Example
A number of employees have complained
to the supervisor about the body odor of a
fellow worker.
Duty of Care
Duty of care for the health, welfare and
safety of the work environment.
Duty to Act
Script
Script 1: Describe and ask
Script 2: Prescribe
Disability
Ongoing mental or medical condition which
seriously impairs a major life activity and
makes work achievement unusually difficult or
limits the capacity for work.
Prohibits Discrimination on:
• Disability
• Perceived as Disabled
• Associated with a Disabled Person(s)
Wisconsin Law Does not
have a “Major Life Activity”
Requirement
The Wisconsin Fair Employment Act
focuses on the condition’s substantial
impact on the job at issue.
The New Foundations
• Currently limited
• Could be limited
– Do not consider corrective measures
– Do not consider remission
• Broad, “inclusive” interpretation
Ongoing Condition
Does not include less than six months and
“minor” but . . .
• What if “minor” but over six months?
• What if less than six months but
“major”?
Disability Process
Step 1 – Awareness of disability
Step 2 – Interactive process
»Document
Step 3 – Reasonable accommodation
• Don’t “fish” for medical information.
• It is the employee’s role to raise the
disability.
• “Perceived as disabled.”
Discussion Example
Jim, a project manager, has been spotted falling asleep
at his desk. When JoAnne, his supervisor, talks to him
about it, he says he has been struggling with his
medication, will talk to his doctor and requests that you
give him a break for now. What should JoAnne do?
– Nothing at this point. If Jim is going to speak with his
doctor, she cannot invade those confidential
discussions.
– Write Jim up with a final warning because that is what
her normal practice would be, and she should treat
Jim consistently as other employees.
– Talk to Jim about his condition and get information
from Jim’s doctor, including Jim’s condition and how
long he is expected to struggle with medication.
Disability Process
Step 1 – Awareness of disability
Step 2 – Interactive process
»Document
Step 3 – Reasonable accommodation
Types of Accommodation
• Physical
• Alteration of duties
• Treatment (and forbearance)
The Burden is on the Employer
to Prove an Accommodation is
not Reasonable
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Economic
Safety
Undue burden on others
Disruptive
Changes nature of job, etc.
Discussion Example
An employee begins to accuse others of causing his
mistakes. He progresses to accusing others of
plotting against him and begins to put powder over
his desk when he leaves it, so he can see
fingerprints of anyone who would tamper with it.
One day he approaches a complete stranger in the
coffee shop and asks why that person is trying to
harm him. Three days later another worker tells the
supervisor that the employee in question had just
told him, “I'm going to take care of those that are
against me,” and indicated he had a “weapon” in his
desk.
Duty of Care
To the health, welfare and safety of those
in the environment (employees, students,
clients, patients, citizens)
Direct Threat
1. Significant risk (high probability) of
substantial harm.
2. Identify the specific risk.
3. Show it is a current risk (not speculative,
remote or “could develop into . . .”).
4. Objective medical and/or other factual
evidence regarding the individual.
5. Cannot be eliminated by reasonable
accommodation.
Beware of stereotypes and “knee jerk”
reactions and “regarded as disabled.”
Discussion Example
An employee has on several occasions returned
from lunch to find other workers chatting and
laughing and has walked up to them and yelled,
“Stop laughing at me! I know you're laughing at me,
and it's not so damned funny!” This has also
happened once in the building's coffee shop. When
she has been approached by other workers trying to
be friendly, she has said, “Leave me alone! You're
only trying to set me up to make fun of me.” Today
she walked up to two other employees who were
discussing a filing problem and said, “If you're going
to talk about me, at least do it to my face!”
Fitness For Duty
1. “Job related and consistent with business
necessity.”
2. Objective evidence that the employee
may not be able to perform essential
functions satisfactorily.
3. Done by a medical professional.
4. The whole evaluation is done with a jobrelated focus.
Qualified Privilege
1. The information is reasonably necessary for
the protection of the interests of one of the
parties.
2. The scope of the inquiry is limited to what is
reasonably necessary to protect the interest.
3. The information is communicated on a proper
occasion.
4. The information is given to and confined to
proper parties only.
5. The process is conducted in a proper manner.
6. The entire process is characterized by good
faith.
Safe Place
1. Duty of care for safe place.
2. Don’t confuse direct threat and
fitness.
3. Balance the interests, safety and
rights of “accused.”
4. Qualified privilege.
Discussion Example
Eight months ago Jan Thompson was injured
in a snowmobile accident. She missed five
weeks of work. Now she keeps taking time off
for the chiropractor, doctor and physical
therapy appointments. She comes in late,
leaves early, or is gone a couple of hours
during the work day. These absences are
disrupting to the schedule, and you don't know
when you can depend on her to be there. She
has also taken some time off when her
husband was sick. She is now 350 hours
beyond her annual sick leave.
Family and Medical Leave Acts
• 50 employees
• One year of employment for eligibility
• Personal, family, new child, military
exigency, military care
Federal FMLA
• 1,250 hours in 12 months (calendar
or rolling)
• 12 weeks of leave total for all
purposes
• 26 weeks for military care
• Can force use of paid time (vacation,
sick leave, etc.)
Military
• Military Exigency Leave
– Part of regular 12 weeks
• Military Care Leave
– 26 weeks – one time per service
member
State FMLA
• 1,000 hours in one year (calendar year)
• 2 weeks for self
• 2 weeks for family
• 6 weeks for new child
• Cannot force use of paid leave
New Family Leave Provisions
• Domestic partners (Wisconsin)
• In Loco Parentis (federal)
Certification
• New forms
• May contact medical provider for:
– “Authentication”
– “Clarification”
Forms
• Request Form (5-day response time)
• Eligibility Form and Rights
• Response form (grant/deny/more
information)
• Verification Forms (15 days)
Confidentiality
• All medical information must be
maintained in separate, more secure files
than other employment records.
• Shared only with managers, health and
safety personnel who have a need to
know.
GINA
Prohibits disclosing genetic information
about applicants and employees.
• Genetic tests
• Family medical information or history
(four generations)
Inadvertent Disclosure
• Notes and reports from medical
professionals (doctor notes, ADA and
FMLA certifications)
• Workplace discussions
Safe Harbor
• Adopt a Safe Harbor Statement in
handbook and all requests for information
“Water cooler talk”
v.
Taking notes or reporting
medical-related conversations in
electronic form to other managers
Workers Comp
FMLA
X
12 weeks
Rehire
Disability
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Light Duty
• A form of accommodation
• Extends FMLA
• May create a new position if lengthy
• May be required for all employees unless
limited to Worker’s Compensation issues
Discussion Example
Sue has been your employee for four years. She has had
consistently good performance. Lately, you have noticed
that she seems a bit irritable and you've seen her take
medication at her desk. You overhear a co-worker of Sue's
in the break room mention that Sue was out at a bar with a
group of employees and they'd never seen her so
"relaxed.“ You should:
– Sit down with Sue. Tell her you are worried about her
health and that employees are talking about her.
– Take note of the situation but do nothing at this time.
You would be acting on speculation and have no
objective basis to believe Sue cannot do her job.
– Start taking notes on all of Sue’s behaviors to build a
case, in the event that you need one.
Discussion Example
A unit employee has developed a pattern
of reporting late in the morning and after
lunch. Recently this has gotten worse.
On four of the last eight Mondays, he
called in sick, and two other days he was
over an hour late and seemed rather
unclear during the morning. Several coworkers report that they have smelled
alcohol when he has returned from a
restroom break.
The Proper Focus is
Job-Related Behaviors
Disability
• History of dependency or treatment.
However,
• Violation of work rules or duties is not
protected.
Drug and Alcohol Testing
• Pre-employment
• Reasonable suspicion
• Random
Pre-Employment
• Drugs only – not alcohol
• Except under DOT rules
• Reasonable suspicion
– Have standards
• Random
– Public sector must test only safety
sensitive positions
Policy
• Prohibit on or off job use of illegal drugs
• Time frame for alcohol
• Prescription drugs and the ADA
• Positive v. inconclusive
Office Parties and
Social Functions
• Alcohol
• Driving
• Harassment
• Assault and battery
Social Functions Policy
There are occasions in which employees attend
work-related social functions, dinners, or have
other work-related interaction with clients,
vendors, etc., in which alcohol is served.
Employees may consume alcohol in these
situations. However, that consumption will be
moderate. No one will become inebriated. No
one will drive a vehicle, organization-owned or
personal, after consuming enough alcohol to be
legally under the influence. You are also
responsible for the appropriate behavior of guests
you invite to work-related social functions.
The Electronic Workplace
The Growth Area in Business
and Liability
• Technology improves our ability to enable
people in the workplace.
• Technology improves the scope of
business, communication and
recordkeeping.
• Technology has created an explosion of
legal issues and organizational liability.
Electronic Discovery Rules
Electronically Stored Information
(ESI)
“Writings, drawings, graphs, charts,
photographs, sound recordings, images,
and other data or data compilations stored
in any medium from which information can
be obtained.”
Rediscover Verbal
Communication
Your email is “evidence”
Don’t Speculate
Don’t brainstorm serious topics by email.
“String emails” on serious topics can
become problematic.
• Email blow-ups
• Email wars
Not just the Email
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Reports
Graphics
Electronic files
Charts
Records
Contracts
Drafts and redrafts
Calendars
Network access records
“Documents of any kind”
Not just the Computer
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Computer use (Intranet and Internet)
Telephones
Cell phones
Text messages
Tapes, CDs, disks
Locaters/global positioning
Electronic calendars
Message systems
Busted by your Blackberry?
Your “personal” devices may not be
personal.
Rule 26(a) requires that employers
disclose, at the beginning of litigation
and prior to any discovery by
plaintiffs, a copy of, or a description
by category and location of, any
documents (paper or electronic) that
may support its claims or defenses.
Rule 26F
Preservation
• Freeze the system on “notice”
• To archive, or not?
Failure to Preserve is “Spoilation”
Sanctions for Spoilation:
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You pay to have it restored.
You pay penalties.
The Court “suppresses” your evidence.
Presumption of guilt.
You lose! Court grants summary
judgment due to your bad faith.
Mark has a network of friends who
exchange humor by email. They send him
some pretty good ethnic and sex jokes.
Mark knows some of his co-workers would
get a kick our of these, so he forwards
them to their work PCs. Of course, Mark
is very careful; he would never send a joke
or video clip to anyone he thought might
not like that sort of humor.
Harassment
and Defamation
Duty of equality to employees,
customers, public, etc.
• It was just a joke
• The email is your ad
Have a Policy on
“Inappropriate Use”
• Enforce it
• Educate your workforce
Duty of Care
• To monitor
• To report illegal usage
Pornography
Electronic Wagering
Electronics Communication Act
• Have effective use and monitoring policies
• Right to intercept and inspect authorization
Information Security
Policy on Proper Access
Off the Job Electronic Issues
• Electronic communication continues to
expand the ability to work from remote
locations.
• Work from home has become an
increasing official and unofficial practice.
What is “Off the Job”?
• On call
• Electronics
• “In the scope” of employment
Wage and Hour Considerations
Electronic communications make it difficult
to be “off the clock.”
Rulli v. C.B. Richard Ellis, Inc. (W.D.,
Wisconsin)
• Have clear policies on work from home
• Approval of all hours
• Reporting and tracking of hours
Family and Medical Leave Act
• Electronic work can create eligibility
• Electronic contact during leave can violate
FMLA
• Work from home can mean the leave did
not count as FMLA and must be paid
Electronics While Driving
Anytime/Anywhere
• OSHA Distracted Driver Rules
• Wisconsin Act 220
– Bans texting or emailing while driving
– Worker’s Compensation penalties
– Should have a strong policy
Policy
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No texting or emailing or reading of same
Hands-free phone
Pull over to dial
Not in town or in traffic
Employee is responsible for all fines and
liability to others
• Worker’s Compensation
– Reduction, discipline or discharge
Privacy
• Not job related
• Expectations of privacy
GPS Tracking
Social Networking
• Off-work social networking is generally not
“private” except for secured access sites.
• Secured sites are private.
Relationship to the workplace may allow
employers to act on inappropriate off-work
social media behavior.
Richardson v. Beckmann (9th Cir., 2009)
Off-Duty Conduct
Does the employee’s off-duty conduct have
a connection to the workplace?
• Injury to the employer’s business or
operations;
• Inability to report for work.
• Unsuitability for continued employment.
• Other employee(s) refusal to work with the
off-duty offender, or danger to other
employees.
Duty of Loyalty
but
• First Amendment (for public employees)
• Concerted activity
In re American Medical Response
of Conn. (NLRB, Oct. 2010)
• Concerted activity
• Overbroad policy
Balance of
Legally or Constitutionallyprotected speech of
“public concern”
v.
Harassment, bullying, personal
vendettas and undermining
the public trust
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