Monday, July 25, 2011
Sunday, July 24, 2011
Limits the ability of a new employer plan to exclude coverage for preexisting conditions;
Provides additional opportunities to enroll in a group health plan if you lose other coverage or experience certain life events;
Prohibits discrimination against employees and their dependent family members based on any health factors they may have, including prior medical conditions, previous claims experience, and genetic information; and
Guarantees that certain individuals will have access to, and can renew, individual health insurance policies
(3) Employment entrance examination
A covered entity may require a medical ex- amination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examina- tion, if—
(A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, ex- cept that—
(i) supervisors and managers may be in- formed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) first aid and safety personnel may be informed, when appropriate, if the disabil- ity might require emergency treatment; and
(iii) government officials investigating compliance with this chapter shall be pro- vided relevant information on request; and
(C) the results of such examination are used only in accordance with this sub- chapter.
A recent case highlights on sometimes HIPAA's privacy rule won't cover an employee like the ADA's rule does. In Blanco v. Bath Iron Works Co. and General Dynamics Corp., (U.S. Dist. Ct. of Maine), No. 2:10-cv-00429-JAW, the plaintiff was terminated for failing to disclose his Attention Deficit Hyperactivity Disorder (ADHD) when he responded to the company’s post-offer, pre-hire Medical Surveillance History Questionnaire. According to the lawsuit, the in-house physician with whom Blanco discussed his post-employment request for a reasonable accommodation accused Blanco of failing to disclose his ADHD on the medical questionnaire. Blanco further alleged that the in-house physician discussed Blanco’s allegedly false responses to the questionnaire with management in General Dynamics’ Labor Relations Department. Blanco claimed that General Dynamics terminated his employment as a result of the disclosure. The case did not allege a HIPAA violation, but, instead, alleged an ADA violation.
The Court, in denying the employer's motion to dismiss the ADA violation count, held that the ADA’s confidentiality requirement to apply not only to disclosures to third parties outside the company (except in the limited circumstances described above), but also to inner-corporate disclosures. More to the point, if the complaint’s allegations turned out to be true, the in-house physician would have violated the ADA because her disclosure of Blanco’s medical information was not necessary for managers in General Dynamics’ Labor Relations Department to accommodate Blanco or to address a work restriction, and the other two exceptions obviously did not apply. The General Dynamics decision is particularly remarkable because the court held that the ADA protects even false medical information provided by an applicant or employee to an employer.
Wednesday, July 20, 2011
Tuesday, July 19, 2011
Monday, July 18, 2011
Sunday, July 17, 2011
Monday, July 11, 2011
Wisconsin Court of Appeals Finds Employer Unreasonably Refused to Rehire Despite Attempt to Commit Fraud by Employee
At the hearing [Woodford] was extremely honest and truthful. He did not deny that in July 2008, he told [Effertz] about going back to work so that he can go back to his doctor and then continue his eligibility to receive temporary disability benefits. He did not need to go back to work to receive temporary disability benefits and what he actually needed was for his doctor to state that he did not reach maximum medical improvement. On the other hand, Effertz was calculating and unconvincing. He was programmed to answer his questions in a manner to always include such terms as "fraudulent" and dishonesty. He calculated every step to see that he would have what he perceived to be legitimate reason so that he would not hire [Woodford] again. Simply, Effertz['s] testimony that he did not call [Woodford] to work for him in November 2008, because he was not willing to participate in a potential fraudulent scheme, is not convincing. [Woodford] wanted to go back to work so that he would receive wages which are higher than the temporary total disability benefits he was receiving.
(Emphasis added.) In its memorandum opinion, the Commission stated that it had "discussed the witnesses' credibility" with the ALJ, and the ALJ "did not credit Mr. Effertz['s] testimony that the only reason he refused to rehire [Woodford] in November 2008 was because of the proposal [Woodford] made in July 2008." Additionally, the ALJ "indicated that he found [Woodford] to be very credible and straightforward in his testimony that he did not intend anything dishonest or fraud[ulent.]" Based on its independent review of the record, the Commission "found nothing to warrant overturning the [ALJ's] credibility determination[s]."
Thursday, July 7, 2011
Tuesday, July 5, 2011
The department’s investigation revealed that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth plant in Illinois to present specific and, in some cases, extra work authorization documents beyond those required by federal law. The Immigration and Nationality Act (INA) requires employers to treat all authorized workers in the same manner during the hiring process, regardless of their citizenship status. Farmland imposed different and greater requirements on non-U.S. citizens and foreign-born U.S. citizens as compared to applicants who were native-born U.S. citizens.
“Employers may not treat authorized workers differently during the hiring process based on their citizenship status,” said Thomas E. Perez, the Assistant Attorney General in charge of the Civil Rights Division. “Federal law prohibits discrimination in the employment eligibility verification process, and the Justice Department is committed to enforcing the law.”
The lawsuit charging Farmland with discriminatory practices has been filed before the Office of the Chief Administrative Hearing Officer (OCAHO) within the Executive Office for Immigration Review, another component of the Department of Justice.
The Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process.