An Employee Manual Predicament.

07 Thursday May 2015

Posted by Celia C. Elwell, RP in 6th Circuit Court of Appeals, Employee Manuals, Employment Law, FMLA Leave, Health Care Benefits

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Elliott-Larsen Civil Rights Act, Employee Manual, FMLA, Jason Shinn, Michigan Employment Law Advisor

Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual, by Jason Shinn, Michigan Employment Law Advisor [originally published February 5, 2015]

http://tinyurl.com/pkld6yo

This past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).

An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.

Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.

The FMLA and Eligibility

For background purposes, the FMLA provides employees ‘a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an ‘eligible employee’ who works for an ‘employer’ – as both terms are defined under Act – may obtain such benefits.

The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.

At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. . . .

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New Law For Paid Sick Leave?

16 Friday Jan 2015

Posted by Celia C. Elwell, RP in Employment Law, Health Care Benefits, Pregnancy Discrimination

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Employment Law, Eric B. Meyer, Healthy Families Act, Paid Sick Leave, President Obama, The Employer Handbook

President Obama To Push For Paid Sick Leave For American Workers, by Eric B. Meyer, The Employer Handbook

http://tinyurl.com/kyyw5te

In an announcement made late in the day yesterday on LinkedIn [January 14, 2015], Valerie Jarrett, Senior Advisor to President Barack Obama, posted that President Obama will call upon Congress today to pass the Healthy Families Act.

More on this push from the President and what it will mean for American business, after the jump…

* * *

I’ve blogged about the Healthy Families Act before here. Essentially, the Healthy Families Act would require companies with 15 or more employees to permit each employee to earn at least 1 hour of paid sick time for every 30 hours worked.

Employees could then use this accrued sick time to: (1) meet their own medical needs; (2) care for the medical needs of certain family members (including a domestic partner or the domestic partner’s parent or child); or (3) seek medical attention, assist a related person, take legal action, or engage in other specified activities relating to domestic violence, sexual assault, or stalking.

Many states and cities have already paid sick leave laws. And, of course, many companies provide paid sick leave voluntarily. The Act would not be cumulative. Rather, it would set a floor for qualifying American businesses. . . .

Insurers Using Generic Drugs To Shift Costs To Sick?

17 Wednesday Sep 2014

Posted by Celia C. Elwell, RP in Affordable Care Act, Drug Promotion, Health Care Benefits, Health Law, Health Reform

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Affordable Care Act, Charles Ornstein, Co-Payments, Generic Drugs, Health Insurance, Insurers, Pre-Existing Conditions, ProPublica

A New Way Insurers are Shifting Costs to the Sick, by Charles Ornstein, ProPublica (This story was co-published with The New York Times’ The Upshot.)

http://tinyurl.com/kaaelvg

By charging higher prices for generic drugs that treat certain illness, health insurers may be violating the spirit of the Affordable Care Act, which bans discrimination against those with pre-existing conditions.

Health insurance companies are no longer allowed to turn away patients because of their pre-existing conditions or charge them more because of those conditions. But some health policy experts say insurers may be doing so in a more subtle way: by forcing people with a variety of illnesses — including Parkinson’s disease, diabetes and epilepsy — to pay more for their drugs.

Insurers have long tried to steer their members away from more expensive brand name drugs, labeling them as ‘non-preferred’ and charging higher co-payments. But according to an editorial published Wednesday in the American Journal of Managed Care, several prominent health plans have taken it a step further, applying that same concept even to generic drugs.

The Affordable Care Act bans insurance companies from discriminating against patients with health problems, but that hasn’t stopped them from seeking new and creative ways to shift costs to consumers. In the process, the plans effectively may be rendering a variety of ailments ‘non-preferred,’ according to the editorial.

‘It is sometimes argued that patients should have ‘skin in the game’ to motivate them to become more prudent consumers,’ the editorial says. ‘One must ask, however, what sort of consumer behavior is encouraged when all generic medicines for particular diseases are ‘non-preferred’ and subject to higher co-pays.’ . . .