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Monthly Archives: October 2010

Difficulty in Access to Workplace May Require ADA Accommodation

Jeanette Colwell worked for Rite Aid as a clerk, working a varied schedule that included frequent evening shifts. Eventually, due to a medical condition, Colwell became blind in one eye. Her doctor advised her to refrain from driving at night for safety reasons. Colwell requested that she be scheduled only for day shifts, as there was no bus service after 6:00 p.m. and no taxis were available in the area.

Rite Aid refused this request for an accommodation. Colwell’s manager claimed that it “wouldn’t be fair” to the other workers. Colwell had her grandson pick her up from work for a period of time thereafter and tried unsuccessfully to discuss the matter further with Rite Aid. Eventually, Colwell resigned and then sued Rite Aid for failure to accommodate her disability.

In court the company took the position that Colwell was asking for help with a “commuting problem unrelated to the workplace” which was not covered by the ADA, rather than requesting a workplace accommodation that would enable her to perform her job once she arrived at the worksite.

The Third Circuit rejected Rite Aid’s position, holding unequivocally that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA covers.

According to the Court, the statute specifically contemplates workplace accessibility and modified work schedules. “Thus, the ADA does not strictly limit the breadth of reasonable accommodations to address only those problems that an employee has in performing her work that arise once she arrives at the workplace.”

In closing, the Court noted that it was for a jury to decide whether a shift change was a reasonable accommodation under the circumstances or would have imposed an undue hardship on the operation of Rite Aid’s business. (We note that this would be a difficult burden for a large corporation to establish, and suspect that settlement talks followed the announcement of the Court’s opinion in favor of Colwell on this issue.)
Colwell v. Rite Aid Corp. (3rd Cir. April 8, 2010). http://www.ca3.uscourts.gov/opinarch/084675p.pdf

For more information about ADA and FMLA, please read our Reed Group FMLA Update.

Free Training Available for New York Workers’ Comp Guidelines

New Medical Treatment Guidelines Require Use of New Procedures and Forms.

As publisher of MDGuidelines with New York State Treatment Guidelines, we are reminding New York workers’ compensation stakeholders today that the NY guidelines require use of new procedures and forms, and comprehensive training is available to help medical providers, insurers, legal professionals and others correctly adopt and incorporate the guidelines in their workflow.

Free web-based training courses are available on the New York State Workers’ Compensation Board’s website. The medical provider program is accredited for CME credits; the chiropractor program is accredited for CCE credits. There are also courses designed for attorneys and claimant representatives, as well as for insurers, medical providers’ staffs, and other non-medical persons.

In addition to the web-based legal training, the Board, in cooperation with Albany Law School, will offer a Continuing Legal Education (CLE) program on the Medical Treatment Guidelines. The program, worth 3.5 CLE credits including .5 hours of Ethics, is scheduled for the morning of November 3, 2010, and will be broadcast to locations around the state.

Reed Group MDGuidelines with New York State Treatment Guidelines Helps You Navigate & Comply With the New Requirements

Reed Group now publishes NY-specific content and tools to help stakeholders navigate and comply with the NY Guidelines requirements via its industry-leading MDGuidelines reference toolset. The new suite of guidelines tools is available through a standalone website or through simple integration with existing software applications. It includes the core NY Guidelines (which incorporates access to the required proprietary ACOEM treatment material), a tool to help align diagnosis and procedure codes more efficiently, payment tables, and other critical decision support and process efficiency tools.

MDGuidelines tools are designed to improve claims processing and case management, and therefore, to improve outcomes for injured workers, as well as to expedite processing and adjudication of claims.

Reed Group helps all stakeholders improve outcomes related to state and federal guideline implementation and compliance by putting the best training, tools and support at stakeholder fingertips in an efficient, tailored manner to meet every group’s needs. MDGuidelines tools make it easier for legislators, state committees, regulators, payors, insurers and physicians treating injured workers to accomplish their objectives effectively and efficiently.

More Information

For more information on the new MDGuidelines tools for New York State workers’ compensation Medical Treatment Guidelines, contact Reed Group’s Keith Mayers at 800-347-7443 or kmayers@reedgroup.com. Or contact Reed Group’s Ken Eichler at 917-270-3921 or keichler@reedgroup.com.

Integritas’s Agility EHR® Now Available with Reed Group® MDGuidelines

We’re pleased to join Integritas, Inc., provider of electronic health records (EHR) software for urgent care and occupational medicine, in announcing that Integritas Agility EHR® 10 is now available with Reed Group’s MDGuidelines return-to-work reference toolset.

Agility EHR® 10 is a CCHIT Certified® 2011 Ambulatory EMR. The product offers super-fast charting, making it ideally suited for high-volume provider clinics offering occupational medicine and/or urgent care services. Agility EHR is also fast gaining acceptance among large health care systems that have realized the need for a certified EMR for employee health that is separate from their inpatient or ambulatory EMR.

With more than 1300 medical topics, Reed Group’s MDGuidelines is the leading return-to-work (RTW) reference toolset for occupational health. MDGuidelines includes evidence-based, physician-reviewed RTW duration guidelines, a powerful predictive modeling tool that enables case managers to tailor guidelines to individual employees, medical monographs suitable for educating employees, and ACOEM workers compensation treatment guidelines by (American College of Occupational and Environmental

“Reed Group’s MDGuidelines toolset is the established gold standard for occupational health,” says Integritas President Mary Stroupe. “Agility EHR customers can now take advantage of fast and simple-to-use guidance to help return injured and ill employees to productive work.”

“We’re very pleased to know that Integritas’s Agility EHR customers will be offered the convenience of having the MDGuidelines toolset embedded in their workflow,” says Reed Group President, Guidelines, Jon Seymour, M.D. “We look forward to helping all stakeholders in occupational health care improve return-to-work outcomes.”

Following FMLA Leave, Don’t Forget the ADA Interactive Accommodation Process!

Employee Larry Bernhard was diagnosed with neck cancer and took FMLA time off for surgery and radiation treatment. When his FMLA time had expired, he still needed about three more months to complete and recover from the treatment.

His supervisor terminated Bernhard rather than extend the additional three months’ leave.

The court held that the additional leave of absence may have been a reasonable accommodation under the ADA (Bernhard was one of 16 employees in his same position). Moreover, there was little evidence that the supervisor had engaged in the interactive process or analyzed prior to Bernhard’s termination whether additional leave of absence would have been an undue burden under the ADA. Thus there was an issue of fact to present to the jury as to whether the employer had violated the ADA.

The Lesson

If the employee cannot return to work or returns but cannot resume full duties following FMLA leave, always consider whether you need to engage in the ADA interactive accommodation process. Further leave of absence or a reduced schedule might be a reasonable accommodation. The failure to discuss this with the employee can lead to an ADA discrimination claim.

Bernhard v. Brown & Brown of Lehigh Valley Inc., (E.D. PA. June 14, 2010). http://www.paed.uscourts.gov/documents/opinions/10d0572p.pdf

To read more about FMLA, ADA and return-to-work, read our Reed Group FMLA update.

Are You Required to Certify Compliance with the New NY State Workers’ Comp Treatment Guidelines?

The NY State Workers’ Compensation Board just announced regulations requiring stakeholders to incorporate new state-specific medical treatment guidelines into their policies, procedures, and practices.

The following organizations will have to incorporate the NY Guidelines in their daily activities within 120 days of December 1, 2010 – and certify their on-going compliance thereafter:

  • Carriers
  • Self-insured employers
  • Third party administrators
  • Payers
  • Other stakeholders

If you’re one of these, Reed Group can help you achieve compliance quickly and cost-effectively to avoid business disruption.

As publisher of the leading clinical case management and treatment guidelines (MDGuidelines), we’re proud to announce our development and release of new content and tools to help you navigate and comply with the NY Guidelines requirements.

Our newest product is a suite of tools available on an a la carte basis through a standalone website or through simple integration with your existing software applications such as your claims systems, case management software, utilization review & physician management programs, and other tools you and your team use in your daily work.

Our suite of tools will include the core NY Guidelines (which incorporates access to the required proprietary ACOEM treatment material), a tool to help you align diagnosis and procedure codes more efficiently, payment tables, and other critical decision support and process efficiency tools.

By using these new tools on their own or pairing them with other MDGuidelines tools, you can deliver better information to your team members to help drive efficiency, compliance, and effectiveness in your organization.

You can find an overview of the announcement here and the complete text of the regulations here. You can also follow links at the Workers’ Compensation Board’s website at www.wcb.state.ny.us.

We stand ready to help you ensure compliance and deliver improved productivity to your organization. The team at Reed Group will be providing extensive training in Guidelines tool use throughout the state in the near future.

You can follow developments right here on this blog, on Twitter at @ReedGrp, or on our website at www.mdguidelines.com.

We will be sure to keep you apprised of developments in NY and in other states promulgating treatment guidelines in the near future. We will have tools for your use in those states as well.

Please feel free to contact us for further information, a demonstration of the NY Treatment Guidelines tools, or free trial use of the broader MDGuidelines toolset.

Keith Mayers, Reed Group
10155 Westmoor Drive, Suite 210
Westminster, CO 80021
800-347-7443

kmayers@reedgroup.com

FMLA Lesson: Supervisor Attitudes Can Create Employer Liability Even When All Requested FMLA Time is Granted

Despite the fact that the Family and Medical Leave Act has been a part of the American employment landscape for 17 years, there are still many pitfalls for employers in administering FMLA.

Two recent federal court cases bring home the lesson that even if an employee’s leave request is handled properly and all requested FMLA time is granted, the actions or attitude of the employee’s supervisor can create liability for the employer.

Supervisor’s repeated mention of FMLA time off in evaluations creates a claim.

Employee Dorothy Goelzer had worked for the Sheboygan County government for two decades, serving the last few years as an administrative assistant. In early evaluations her supervisor, Adam Payne, praised Goelzer’s performance and attendance. From 2002–2005 Goelzer took several fairly extensive FMLA leaves for various reasons. In 2006 she requested and was approved for another FMLA leave for foot surgery for September 22 through November 20.

On August 15, 2006, Payne’s job title changed and for the first time in his seven years of supervision of Goelzer he gained the sole authority to discharge her. On September 8, two weeks before Goelzer was to commence her latest FMLA leave, Payne discharged her with an effective date of November 30, 2006. He placed her on paid leave until then so that she would receive the previously-approved FMLA leave.

Goelzer sued the County, alleging that the County had interfered with her right to reinstatement under the FMLA and had retaliated against her for taking FMLA leave. The County contended that her supervisor had merely exercised his statutory authority to appoint an administrative secretary of his own choosing and had decided to hire another person with a larger skill set. The trial court granted summary judgment in favor of the County, but the Seventh Circuit Court of Appeals ruled that Goelzer had offered enough evidence to go to trial and present her case to a jury.

Key among the Court’s considerations were the numerous written comments by Payne showing frustration with Goelzer’s repeated leaves of absence. Despite still giving her decent overall evaluations, Payne complained about her use of sick leave and FMLA time in writing at least four times from 2002 through 2006.

In light of these comments, coupled with the timing of her notice of termination two weeks before her 2006 FMLA leave was to commence, the Court determined that a jury might find that her termination was in retaliation for and/or interference with her exercise of her FMLA rights and ruled that she could go to trial.
Goelzer v. Sheboygan County, (7th Cir. May 12, 2010). http://caselaw.findlaw.com/us-7th-circuit/1523854.html

Supervisor’s “harassment” about leave time supports a claim of FMLA interference.

In another case, employee Vanessa McFadden had worked full time for the employer (a law firm) for more than ten years when she needed FMLA time off to care for her husband, who had cancer. The employer did not deny any requested leave time and provided a combination of paid company leave and unpaid FMLA leave, followed by a reduced work schedule.

Nonetheless, the employee claimed the firm interfered with her ability to take additional leave by misinforming her about her entitlement to leave under the FMLA and by harassing her for taking too much time off. The court stated that a claim for interference with FMLA rights has only two elements: first, that the employer somehow interfered with, restrained, or denied the exercise of FMLA rights; and second, that the employee was prejudiced by the employer’s actions. The claim does not require that the requested leave was denied; it is enough if the employee suffered a direct monetary loss or other prejudice as a result of the interference.

McFadden’s evidence of interference was fairly sparse. She claimed that a member of the firm told her that her need to miss work on days when her husband had medical appointments was “going to be a problem.” Apparently feeling that her job was threatened, McFadden arranged for her sister to care for her husband on those days and reported to work as instructed. As a result, she claims, she took less time off than she was entitled to take and had to pay her sister to take care of her husband.

The Court of Appeals found this was sufficient evidence to send the employee’s claim to a jury—who could then determine whether the employer had interfered with McFadden’s FMLA rights.
McFadden v. Ballard Spahr Andrews Ingersoll LLP (D.C.Cir. June 29, 2010). http://caselaw.findlaw.com/us-dc-circuit/1529463.html

The Lesson

Train supervisors not to convey frustration or criticize employees for FMLA- protected leaves.

It is critical that supervisors understand the FMLA and the rights it grants—and that complaining or showing frustration about an employee’s absence due to FMLA leave is unacceptable and, in fact, might be illegal. In both of these cases, all requested FMLA leaves were granted. Nonetheless, the supervisors’ comments led to both employees having a right to a jury trial to determine their claims—an event that employers should try to avoid.

Clearly, it is not enough to have the right policies and procedures if supervisors can create FMLA claims due to their intolerant attitudes. Train those supervisors, and train again next year!

FOR MORE INFO ABOUT MANAGING FMLA, SEE OUR REED GROUP FMLA UPDATE.

Reed Group® Partners With Texas DARS for Section 508 Compliant MDGuidelines


MDGuidelines Easy Access For Those Who Depend on Screen Readers or Keyboard Shortcuts

We’re very pleased to announce that Reed Group has partnered with the Texas Department of Assistive and Rehabilitative Services (DARS) to complete a new 508-compliant version of MDGuidelines, our industry-leading reference toolset for optimizing return-to-work outcomes for employers and medical providers.

MDGuidelines Easy Access is a fast, image-free site for the visually impaired who depend upon screen readers or keyboard shortcuts.

In a recent news release, Reed Group President, Guidelines Jon Seymour, M.D. said: “Enabling employees for productivity is our highest mission. We are pleased to be able to offer MDGuidelines in a format that allows the visually impaired increased access and opportunities.”

The Texas Department of Insurance’s Division of Workers’ Compensation selected Reed Group’s Medical Disability Advisor (MDA), now published within MDGuidelines, for the statewide adoption of return-to-work guidelines in 2006. Since May 1, 2007, Texas health care providers have been required to use the MDA when providing non-network health care to injured or ill employees in the workers’ compensation system.

Section 508 of the Federal Rehabilitation Act requires that governmental agencies make their information technology accessible to people with disabilities.

For more information about the 508-compliant MDGuidelines Easy Access, please visit www.mdguidelines.com.