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Monthly Archives: March 2011

Reed Group & Webility Offer Disability Duration Guidelines E-Learning Course

New Online Training Course for Physicians is a Primer on Disability Prevention and Management

For most working adults, getting sidelined by illness or injury can have devastating consequences for their family and career as well as for their financial, physical and emotional well-being. Yet very few physicians receive formal education or training in how to prevent and minimize that impact on patients’ major life functions, especially their jobs.

To respond to this need, Reed Group and Webility Corporation today announced a new e-learning course: Mastering MDGuidelines: Using Disability Duration Guidelines for Clinical Patient Care.

Co-developed by disability experts Jon Seymour, MD, and Jennifer Christian, MD, the brief e-course efficiently delivers a primer in disability prevention and management to treating clinicians of all specialties.

“Patients, employers, insurance carriers, case management firms, and claims administration companies all complain of physicians’ lack of awareness of – and willingness to play – the communications role prescribed for them in disability cases,” says Reed Group President, Guidelines, Jon Seymour, MD. “This e-course will help address that issue by building clinician awareness and ability to use the MDGuidelines resource in the manner in which it always has been intended – as the source of objective information that, when shared, creates common ground and allows all parties to achieve common goals and better outcomes in the return-to-work process.”

Webility Corporation President Jennifer Christian, MD, says: “We designed this e-course like a Cliff Notes introduction to disability prevention and management for busy doctors: 30 to 45 minutes of clinician-friendly instruction on how to give sound practical advice to working-age patients about what they should and shouldn’t do, both at home and at work while recovering from injury and illness.”

To arrange group purchases of the e-course, call Reed Group at 866.889.4449 or email jnelson(at)reedgroup.com.

To take the course, go to the Webility website and click on MDG101: Mastering MDGuidelines: Using Disability Duration Guidelines for Clinical Patient Care. Tuition is $50, payable by credit card. Course completion earns 0.75 hours of Category I CME credit.

MDGuidelines is the disability industry’s leading return-to-work reference toolset. Available as a web-based resource or integrated with the user’s IT system, MDGuidelines offers real-world and idealized return-to-work durations with advanced predictive modeling, ACOEM treatment guidelines, state workers’ compensation treatment guidelines, and medical monographs for reference and employee/patient education.

About Reed Group
Reed Group® is the world’s most trusted source of return-to-work information, helping companies improve employee absence outcomes. Reed Group’s data, tools, customized solutions, and case management services help reduce absence incidence and duration, and get employees back to normal, healthy lives and full productivity. Reed Group is headquartered in Westminster, Colorado. More information at www.reedgroup.com and www.mdguidelines.com.

About Webility Corporation
Webility’s mission is bridging the communications gap that separates medical offices from employers and benefit administrators, enabling these parties to more effectively play their roles in minimizing the disruptive impact of injury or illness on an employee’s income and vocation. We are committed to speeding the recuperation of ill and injured employees, as well as supporting the continued employability of those who are aging, chronically ill, or who have significant functional impairments. More info at www.webility.md.

No Good (Leave Management) Deed Goes Unpunished

By Marti J. Cardi, Chief Compliance Officer, Reed Group

Employers should take heed of the lessons learned by the employer in Branham v. Gannett Satellite Information Network, Inc., a recent decision from the Sixth Circuit Court of Appeals.

On November 7, 2006, employee Deborah Branham embarked upon a string of day-by-day absences for which she applied for FMLA leave. In an effort to be helpful, the employer, Gannett, faxed the medical certification form directly to Branham’s health care provider. The physician returned the form on November 17 and indicated that Branham could return to full duty work as of three days earlier, November 14, with no need for further leave time.

When Branham still had not returned to work by November 24, Gannett decided to terminate her. Because she did not return a Gannett manager’s call, a termination letter was sent to Branham on November 28. On that same day Branham called in and was told that she had been terminated. She obtained another appointment at her physician’s office, and at 6:00 p.m. that evening the nurse practitioner faxed to Gannett a new certification form indicating that Branham had been suffering from a serious health condition since May 2006 (despite the fact that she had been working most of the time since that date) and could return to work in January 2007.

Gannett sustained its termination decision on the basis of the “negative certification” it had received on November 17, and Branham sued for interference with FMLA rights.

Guess who lost, and why? The employer, for failing to follow FMLA rules. Gannett made the following mistakes:

Failure to Send the Notice of Rights and Responsibilities
Gannett never sent Branham the notice of rights and responsibilities required by the FMLA. [Currently 29 C.F.R. § 825.300(c).] This notice would have told Branham of her obligation to provide her employer with a certification within 15 days, and the consequences of her failure to do so.

According to the court, this failure meant that Branham’s duty to provide a medical certification was never triggered. The fact that two (conflicting) certifications were indeed received by Gannett within the 15 days of verbal notice was immaterial to the court. Branham was entitled to her notice and she didn’t get it. As a result, the employer was not entitled to delay or deny her leave on the basis of the certification requirement.

Lesson for Employers:
Always send the full FMLA packet, including the certification form, Notice of Rights and Responsibilities, and other documentation, to the employee immediately after receiving information that the employee may need an FMLA leave of absence. Even if there is a desire to facilitate the process for the employee by sending the certification form directly to a provider, be sure the employee receives complete and timely information. Reed Group’s procedures follow this best practice.

Failure to Allow the Employee the Full 15 Days to Provide a Supporting Certification
Gannett relied heavily on the fact that it received a “negative certification” from Branham’s physician – one that affirmatively stated that the employee could return to work. Gannett made its termination decision on the basis of this certification and Branham’s failure to return to work, even though the 15 days allotted to an employee to return a supporting medical certification had not expired.

Q: Is this always the case? Must an employer wait the full 15 days before taking action on a leave request (or an “unexcused” absence) even though it has received a certification stating unequivocally that the employee is able to return to full work?

A: The answer is unclear. The court noted that this was an issue of first impression in the circuit – meaning that it had not previously been addressed and decided by that court. Relying on a case from the Seventh Circuit, the court observed that nothing in the FMLA or regulations limits the employee’s ability to produce a medical opinion that contradicts a prior negative certification. But, the court’s decision was not based on this issue, so it is not authority for this proposition. As noted above, the court relied on the fact that Gannett never gave Branham her notice of rights and responsibilities. Therefore Branham’s obligation to provide a certification was never triggered, and Gannett could not take action against Branham on the basis of the medical certification requirement.

What Does this Mean for FMLA Leave Management Practices?
If you are wondering how Reed Group handles this type of situation, know that negative certifications are actually quite rare. We will still send FMLA denial notices upon receipt of a negative certification. However, if a subsequent timely certification is received that contradicts the negative cert, that later certification will be considered and the situation will be assessed on the facts of the particular situation. Employers are advised, however, not to take a negative employment action (termination, discipline) until the 15-day certification period has expired.

[Note that the FMLA regulations do not specify whether the 15 days is measured from the date a notice is sent by the employer or received by the employee. In accordance with client requests Reed Group may provide additional days over the required 15 to allow time for mailing.]

Branham v. Gannett Satellite Information Network, Inc. (6th Cir. 2010)

Supervisors Be Careful What You Promise – Don’t Expand FMLA Coverage

By Marti J. Cardi, Chief Compliance Officer, Reed Group

A legal principle known as “equitable estoppel” can allow an employee to enforce a promise of benefits made by the employer and relied upon by the employee to his detriment.

A well-intended but ill-informed promise by a supervisor can have the unexpected effect of providing protected leave of absence beyond the requirements of the FMLA. A recent case illustrates the importance of training supervisors not to promise leaves of absence without first consulting Human Resources.

FMLA Bereavement Leave?
The FMLA does not in fact provide protected bereavement leave, but in Murphy v. FedEx National LTL, Inc., a supervisor’s promise of time off had a similar effect.

Susan Murphy, a former employee of FedEx, took approved FMLA leave to care for her ill husband. When he died unexpectedly on September 7, 2006, she took three days of company bereavement leave. Her supervisor contacted her on September 11 and informed her that her FMLA leave had expired on September 7 (the day her husband died). He asked how much more time off she needed. She requested an additional 30 days “to take care of things.”

Her supervisor told her this would be no problem and he would let Human Resources know. However, HR denied the leave and required the supervisor terminate Murphy for unexcused absences. Murphy sued, alleging interference with FMLA rights and estoppel. The trial court ruled that Murphy was not entitled to a trial on her claims, but the Eighth Circuit Court of Appeals reversed the decision and sent her case back to the trial court for a jury trial.

Did Murphy Provide Adequate Notice?
The FMLA requires an employee to provide enough information to the employer to show that she may need FMLA leave. The Eighth Circuit ruled that consideration of the totality of the circumstances could lead a reasonable jury to believe that FedEx had notice of Murphy’s FMLA request.

The statement that she needed time off “to take care of things” by itself would not be sufficient, but FedEx should have considered other facts of which it was aware: (1) Murphy’s husband, who had also worked for FedEx, died unexpectedly; (2) she was noticeably distraught in her conversations with her supervisor; (3) she told him that she was unable to work the night shift because it reminded her too much of her husband; and (4) Murphy made the request during the conversation with her supervisor when he told her that her FMLA leave (to care for her husband) had expired and asked whether she needed more time off.

Together, these facts could be considered adequate notice to FedEx of a request for FMLA leave.

Did Murphy Establish an FMLA Claim Based on Estoppel?
The Eight Circuit recognized the estoppel principle established by earlier cases: “[A]n employer who makes an affirmative representation that an employee reasonably and detrimentally believed was a grant of FMLA leave can be estopped [prevented] from later arguing that the employee was not in fact entitled to that leave…”

According to the Court, the supervisor’s statement that the requested 30-day leave would not be a problem, and that he would let HR know, could be construed as a promise of leave. The supervisor did not indicate there were any additional steps Murphy needed to take to have the leave request approved. A jury could find that Murphy, upon receiving an immediate affirmative response to her request for leave, reasonably believed that she had been promised the leave and was entitled to rely upon that promise.

This case illustrates the way in which courts can view facts in favor of the employee when determining whether the employee has met the requirements of the FMLA. The court ruled that Murphy was entitled to a jury trial, and under these facts, it is likely that a jury would find in favor of Murphy and award substantial damages against FedEx.

Lessons for Employers:
Supervisors need to be trained that even in the most sympathetic of circumstances, it is important to follow leave procedures. Always consult with an HR manager before making a promise of FMLA leave.

FedEx’s HR department takes away a lesson that they could have handled the situation better as well. For instance, they could have placed a call to Murphy to let her know that her leave was not in fact approved and provided her an opportunity to return to work or to support her leave request with appropriate medical documentation. This would have been a far wiser, less costly and less public alternative.

Murphy v. FedEx National LTL, Inc. (8th Cir. 2010)

Join Us at DMEC Behavioral Wellness in the Workplace Conference

If you’re an HR and/or absence management professional, you well know that employee behavioral issues can cause all kinds of expensive productivity problems. Proactive management of behavioral issues in the workplace can save huge dollars, increase productivity AND increase employee morale as well as help you retain key talent.

That’s exactly why you should attend the DMEC Behavioral Wellness in the Workplace Conference – “The Road to Behavioral Wellness: Managing Absence and Productivity in Today’s Workforce.” This must-be-there event on March 23-25 in sunny Newport Beach, CA, is only TWO WEEKS AWAY.

DMEC tells us there are still great registration rates (early bird is extended through March 18th) and room rates of $145 at the Marriott Hotel are being honored through March 11th. So DON’T DELAY. REGISTER TODAY.

(And if you go, be sure to catch Reed Group’s Mary Ellen Wadsworth, RN, Clinical Manager speaking on “A Triple-Tiered Approach for Reducing Lengthy Work Absences” March 25 at 9 a.m.)

Join Us for GINA Webinar – March 10

Are Your Absence Management Practices GINA Compliant?

Join us for a free webinar and learn what all employers should be doing in 2011 to comply with the Final Regulations to the Genetic Information Nondiscrimination Act.

Thursday, March 10
1 pm Eastern/10 am Pacific

Absence industry experts Marti Cardi and Kevin Curry of Reed Group will help you learn what your organization must do today to ensure compliance with the new GINA regulations, including:

  • The definition of Genetic Information today.
  • “Safe harbor” language inclusions.
  • New rules for managing employee records.
  • How to ask for medical information without requesting genetic information.

PRESENTERS

Marti Cardi, Chief Compliance Officer

Marti is a seasoned employment law and compliance attorney with over 20 years private practice and in-house experience in management of employment litigation and EEO agency charges, investigations of alleged employee misconduct and discrimination.

Kevin Curry, Sr. VP Client Services, National Practice Leader

Kevin is an absence management expert with over 20 years of experience in strategy, design, development and implementation of best-practice solutions to industry needs for disability management and consulting.

To join the Webinar:
1.  Click here.
2. Enter your name and email address.
3. This meeting does not require a password.
4. Click “Join Now” and Select “I will call in” from pop-up box
6. Call-in toll-free: 866-469-3239
Access code: 490 534 698

Trouble accessing the Webinar?

For assistance https://rgl.webex.com/rgl/mc
On the left navigation bar, click “Support”

What is the ADA Interactive Accommodation Process?

The ADA requires employers to engage in an “interactive process” with a disabled employee to determine whether there is a reasonable workplace accommodation that would enable the employee to return to work and perform the essential functions of his/her position.

The process includes discussion and an exchange of information between the employee and the employer, and sometimes with medical professionals. Pertinent information may include the employee’s job description, medical restrictions on the employee’s performance of duties, and analysis of whether a particular accommodation will be suitable due to the employee’s limitations.

Reasonable accommodations may include a modified work schedule, provision of special equipment, workplace accessibility modifications, shifting of non-essential duties of the employee’s position, or even extended leave of absence to allow time for recovery or training.