Posts Tagged ‘Human Resources’

News Roundup: Study-Palooza, FMLA birthday, Out-of-This-World Workplace, Terminations & More

Wednesday, February 6th, 2013

Study-Palooza – Joe Paduda offers his analysis of work comp hospital costs as reported in WCRI’s recently released 20-state study on outpatient hospital costs. And Joe is really letting his nerd side show with a report on two other workcomp-related research studies, one dealing with back surgery outcomes and the other, the use and cost of compound medications.
Health data – While on the topic of research, you may want to bookmark the Pew Research Center’s Health research page. It offers excellent insight as to how people are using the Internet to access health-related information. A recent study shows that seven in ten (69%) U.S. adults track a health indicator for themselves or a loved one and many say this activity has changed their overall approach to health.
20 Years Today – Today is the 20th anniversary of the Family Medical Leave Act (FMLA). Occupational Health & Safety features a story on a survey conducted by the Department of Labor to learn how the law has affected employees and employers. The survey showed 16 percent of workers took FMLA leave within the last year, 56% of whom were women. More than half took leave for their own illness (57%), for new child-related reasons (22%) or to care for a family member with a serious health condition (19%). While the law is praised as “the first step in creating a more family-friendly American workplace” by many and hailed as a boon to families, there are some employees who would not agree. Plus, many employers would cite abuse, problems and confusion in implementing and complying with the law. Noncompliance can be costly – see Failing to Train Supervisors in FMLA: $1.2 Million Loss to Employer. One of the best resources we have found for keeping up with FMLA emerging issues, case law and changes is employment law attorney Jeff Nowak’s FMLA Insights. Jeff has comments about the FMLA anniversary and the DOL survey results, which he calls “curious.”
Terminations – Sharon Lauby hosts a blog delightfully name blog, HR Bartender, well worth keeping on your radar. She recently posted about How to fire an employee. This week, she followed up with Terminating Employees: How To Fire Right, which includes a valuable guide from employment law attorney Mark Neuberger, which you can download at no cost, and with no registration required. The first line in this guide gives a reason why you should go there and download it now: “Every termination decision should be based on the assumption that it will be challenged before an administrative agency, a court or both.”
Out-of-This-World Twitter posts – Some people’s work environments are a little more interesting than yours and mine. Canadian astronaut Chris Hadfield stunning images taken from the international space station. You can follow his Twitter feed for more: @Cmdr_Hadfield.
News Briefs

New Jersey Courts: Zero Tolerance, Zero Compassion

Friday, February 24th, 2012

You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson’s disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness “hush, hush.” Martin complied, and never mentioned his illness to the company’s HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties – unrelated to work – he returned to work as soon as he was able.
In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin’s mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.
Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.
A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a “prescribed” medication? Well, that’s where a problem arises.

The word “prescription” comes from the Latin “praescriptus” compounded from “prae”, before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.

It appears that a “verbal prescription” is an oxymoron: if it isn’t in writing, it isn’t a prescription. [NOTE: the court ruling did not even address this issue.]
The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company’s zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin’s Parkinson’s disease until this litigation commenced.Thus Martin’s termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.
The court wrote:

Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin “failed” the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company’s lack of compassion in these circumstances.

Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: “nor should such a duty exist with respect to existing employees.” The court may not see any difference between an applicant and a loyal employee, but I do.
No Room for Compassion
The court “is not offended by a private company’s lack of compassion.” Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:

Quick Chek is proud to be one of NJ’s Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.

I wonder what Erik Martin thinks of the company’s “core values.” When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor’s orders and his company’s procedures. Martin’s loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.

Risk, compensability, mousing elbow, medical costs, and other news briefs

Wednesday, May 18th, 2011

Cavalcade of Risk – Emily Holbrook is hosting the 131st edition of Cavalcade of Risk at one of our favorite risk-related blogs, Risk Management Monitor. Check it out!
Compensability issues – In disputes as to whether an employee’s injury or illness is eligible for benefits, courts look at the issues of whether the injury arose in the course and scope of employment. Roberto Ceniceros posts that while course and scope have generally been regarded as a single doctrine, that may be changing with the challenges posed by an increasingly mobile work force. See his blog post: “Course and scope” separated.
Safety for the solitary worker – Speaking of a mobile work force, do you have workers who work alone? Solitary work poses unique safety challenges. See Safety Daily Advisor’s tips for keeping solo workers safe.
Claims IT systems webinar – Health Strategy Associates has an upcoming webinar that may be of interest to some of our readers: the results of HSA’s First Annual Survey of Workers Comp Claims IT Systems. If the sponsoring organization’s name isn’t familiar to you, it’s our fellow blogger and friend Joe Paduda’s firm – he’s sponsoring the seminar in conjunction with colleague Sandy Blunt. If this interests you, act now – the webinar is scheduled for tomorrow!
Mining safety, one year later – On last week’s anniversary of the West Virginia Big Branch mine disaster that claimed 29 lives, the latimes.com looks at progress – or lack of progress – in enhancing miner safety: Families of dead miners feel let down by Washington. The story reports that in the past year, a safety bill has failed and the backlog of safety cases has grown.
Top HR issuesWorkforce covers the top 10 HR concerns as reported by the Employers Resource Association. These issues are compiled from the more than 8,000 hotline calls made by the organization’s membership of 1,300 companies in Ohio, Kentucky and Indiana.
Mousing elbow – As we incorporate more and more devices in our work-world, technology-related maladies seem to multiply. Greg LaRochelle of the MEMIC Safety Blog talks about Mousing Elbow and how to prevent it. See also Blackberry Thumb, Cell Phone Elbow, IPod Ear. Also, see our ergo tips for setting up a workstation.
Medical costs – Can making physicians aware of the costs for procedures help to curtail costs? Katherine Hobson of WSJ’s Health Blog reports on an interesting research project that showed a decrease in expenditures for routine lab tests when physicians were made aware of the overall costs for such procedures: “Cosimi tells the Health Blog the study represents “a good first step, just to show that there’s a problem, and a potential solution.” The goal would be to establish guidelines for proper testing. And he says it’s not just blood work that could benefit from this kind of approach. At his own transplant unit, he noticed changes in prescribing behavior simply by posting the very different costs of two similar antibiotics.”
Hidden costs – We all know the health risks of smoking and that smoking can contribute to comorbidities that hinder worker recovery. But there are lesser known risks that can contribute to claim costs, In PropertyCasualty360, Zack Craft of Total Medical Solutions talks about how smoking can damage sensitive medical equipment too, and a factor that adjusters should consider.
Wage & hour violations? There’s an app for that – If you feel like your employees are tracking you, they may well be. Employment attorney Michael Fox posts about the Department of Labor’s new timesheet i-phone app, which is intended to help employees track the hours they work and the wages they are owed. The DOL says that, “This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”

News roundup: Premium rates, ADA, disability awareness, OHIO privatization, and more

Wednesday, October 26th, 2005

RIMS Benchmark Survey: downturn in commercial rates
Commercial insurance renewal premiums in the third quarter were down by more than 5% from rates in the same quarter last year, although the survey notes that workers comp was the only major line to drop by less than 5%, with an average reduction of 3.75%. However, for many respondents, the effects of hurricane season hadn’t yet been factored into prices.
ADA protects persons “associated with” the disabled
Diane Pfadenhauer discusses a less widely recognized provision of the Americans With Disabilities Act that extends legal protections to those individuals who are associated with a disabled person.
October is Disability Awareness Month
According to the Society for Human Resource Managers (SHRM), there are 33 million people in the United States with disabilities and the unemployment rate for this population is 44%. SHRM notes that many employers fear high costs associated with making accommodations for workers with disabilities, but 38% of employers have not had to spend any money on accommodations and an additional 17% have spent less than $500.
For a whole different outlook on disability, you may want to see a film called Murderball about a team of quadriplegic rugby players. Some time back, Larry King featured a very compelling interview with a few of the charismatic team members – what an inspiration!
Ohio: many oppose privatization of workers comp
Despite the recent investment scandals, it seems that many employers, attorneys, and unions are unified in opposition to the idea of privatizing the state workers’ compensation system. Ohio is one of a diminishing number of monopolistic states. The current Bureau of Workers Compensation system was established in 1995 with a nine-member Workers’ Compensation Oversight Commission. Since then, it has been credited with speeding up claims and reducing premiums by an average of more than 30%.
The Best-laid Disaster Plans Are Merely Works in Progress
Workforce features an article offering an overview of problems and issues that HR departments faced in the aftermath of the Katrina disaster. The article profiles the experiences of three large employers – Entergy, Sodexho USA, and McDonalds – and some of the creative problem-solving that was required to locate and retain workers, communicate with workers despite the collapse of the communication infrastructure, arrange payments and administer benefit programs, and assist workers and their families in resolving various psycho-social issues.
12 picks for America’s Safest Companies of 2005
Occupational Hazards recognizes a dozen companies that set their own standards for safety excellence, exceeding OSHA and EPA regulations and industry norms. Safety efforts in these companies were generally characterized by high employee involvement and superior management commitment.
Insider View of the Vioxx trials in NJ
Robert Ambrogi and J. Craig Williams from Law.com’s arsenal of law bloggers offer first hand accounts from inside the courtroom at the VIOXX trial underway in New Jersey.
Also. from Legal Talk Network’s Workers Comp Matters:
Latex allergies in the workplace with Sandra Jutras, a career clinical nurse who developed a serious level one latex allergy; Attorney Jim Brady, and Dr. Gail Lenehan, national advocate and member of the Massachusetts Nurses Association’s Congress on Occupational Health and Safety.
Medicare set-aside allocations – Jean Feldman of CHOICE Medical Management discusses the complex issue of workers compensation Medicare set-aside allocations.
Making a difference
We can all sometimes get bogged down in the status quo and wonder if it’s still worth it to try to effect a change. It’s good to be reminded how one person can make an enormous difference – rest in peace, Rosa Parks. The LA Times has a wonderful tribute to this remarkable woman. (free registration required)

You’re fired! Should you terminate an employee who is on workers compensation?

Tuesday, April 6th, 2004

Donald Trump’s TV series has everyone joking about firing or being fired, although for anyone who has ever been on either end of the equation – as the manager who fires, or as the employee who is fired – it is rarely a joking matter.

Some would make the case that in today’s litigious society, most companies don’t ‘fire’ employees outright anymore, fearing a charge of discrimination or wrongful termination. It does seem as though downsizing, outsourcing, re-engineering, plant closings, mergers, and a host of other euphemistic group actions have all but replaced the plain vanilla one-to-one termination, at least for large companies. Nevertheless, when there’s a continuing employee performance issue, terminating employment is sometimes the only course of action. And, in some instances, an employer may even be sued for not terminating an employee, such as when that employee poses a danger to other employees.

What about firing an employee who is out on leave for workers compensation?

That’s a question we often get. In these cases, we will often hear a long litany of complaints about the employee, sometimes going back years. From the employer’s perspective, the workers comp claim is often viewed as the final straw in a continuing series of problems with that particular employee; at other times, it simply may appear to be a convenient, neat way to resolve an ongoing problem.

Firing an employee while he or she is out on workers compensation disability leave is almost always a bad idea. For one thing, many states have laws that prohibit retaliatory firings for workers who file claims. Even if this were not the case, it’s not a good idea to use workers comp as a tool to resolve human resource issues.

There may indeed be some instances where termination would not violate the law, such as in cases of business necessity or for an egregious breach of policy.