Recognizing a Troubled Employee

Kim Dyson, MA,LPC,MAC,SAP Licensed Professional Counselor Masters Addiction Counselor EMDR Trained Quote to Remember

“When dealing with people, remember you are not dealing with creatures of logic, but creatures of

emotions.” Dale Carnegie Mental Health Problems in the Work Place

• According to 2010 U.S. National Comorbidity Survey 18% of employees in the workplace experience mental health disorders. • Mental health disorders often go unrecognized and untreated which damages an individual’s health, career and reduces productivity in the work place.

General Signs of Mental Illness

• Confused or Disoriented • Behavior Changes • Darting looks • Flat Affect • Talking to self • Withdrawn • Pressured speech • Sad or anxious mood • Poor hygiene • Panic • Inappropriate attire • Psychosomatic complaints

Schizophrenia Symptoms • Impacts 1 out of every 100 people. Onset is late teens, early adulthood. • Symptoms Include : – Hallucinations – Delusional thinking – Apathy – Withdrawn – Poor hygiene

Major Depression

Symptoms • Sad, anxious, feeling empty, hopeless, pessimism • Decrease energy • Lack of interest in activities, work & sex • Sleep disturbance (insomnia or over sleeping) • Appetite and weight changes • Guilt, helpless, and thoughts of death • Suicide attempts • Problems with concentration, and making decisions • Hypochondria

Manic/ Bipolar Disorder

Symptoms • Increased energy • Decrease need for sleep • Increase risk taking • Unrealistic beliefs in abilities • Increased talking, physical, social & sexual activity • Aggressive response to frustration

• *Depressed phase is similar to Major Depressive Disorder • *Rapid cycling can occur

Anxiety Disorders Panic Disorders Symptoms • Women twice as high as men. • Include intense fear, heart palpitations, chest pain, shortness of breath, dizziness, poor concentration, excessive worrying, requiring excessive reassuring, panic attacks occur without warning

Person is concerned that the attacks will strike again

Anxiety Disorders Obsessive-Compulsive Disorder

• Due to a short circuit in the basal ganglia • Two types: • Obsessions are recurrent thoughts, images, impulses that cause anxiety. They are illogical, at times repulsive and /or center on violence or harm. Ex. fearful of having a illness, pre-occupation. • Compulsions are behaviors that are repetitive- attempts at reducing the anxiety created by the obsessions. i.e. hand washing, counting, ordering. Post Traumatic Stress Disorder

Symptoms: Exposure to an extremely stressful event. Painful memories, nightmares, suspicion, anxiety, depression, feelings of guilt and sleep difficulties Symptoms worsen with exposure to similar events Substance abuse is a common method to cope Psychosis • Senses can be affected: sight, hearing, smell & touch. • Like a LSD trip: a chemical firestorm • Central control system is down • It’s terrifying, confusing • Symptoms will go away with time or with treatment

Personality Disorders

Difficulty in holding steady work and relationships Difficult to change Can co -exist with other mental illnesses Perceiving events are skewed Range of intensity are inappropriate Impulse control

Co-occurring Disorders

Presence of both a mental illness and substance abuse disorder High prevalence rates 60% of persons with a mood disorder also have a substance abuse disorder 50% of persons with schizophrenia also have a substance abuse disorder Cognitive Disorders

Symptoms: • Memory problems • Impaired Judgment • Disorganized • Failure to meet deadlines • Problems with time management • Difficulty following instructions

Basic Communication Guidelines

Simple content Be patient Low stimulation level Be pleasant and firm Don’t force Praise cooperative communication if person is behavior withdrawn Practice reflective listening Be consistent Know your non-verbal Don’t take actions or communication reactions personally Violence

Incidence increases 60% if Greatest risk, males in late the mental illness is teens to early 20’s untreated. Past behavior best predictor Substance abuse Warning Signs

Tremors Hyperactivity Rigid Posture Clenched jaws and fists Pulsing arteries Verbal abuse/profanity

Characteristics of a Good Working System

Shared Vision Involvement of both parties Established written documentation Formal and informal verbal communications Ongoing Commitment

Facts About Suicide

• 8 out of 10 suicides have given prior warning • Ambivalent about Death • Ambivalence is not the same as manipulation • Suicide Risk does not increase with Discussion • Substance abuse issues • History of mental illness • Talk of giving things away of value Facts about Suicide • A parent died by suicide increases risk by 50% • Prior attempts increases risk by 33% • Mental Illness increases the risks – 61% have Major Depression – 48% have Personality Disorders – 40% have Alcohol Use Disorder – 10% have Anxiety Disorder – 6% Schizophrenia

Why Do People Die by Suicide?

• Impulsive • Depressed • Escape from suffering • Communication problems • Loss of a loved one • Feels hopeless Intervening

• Create a safe environment • Take turns communicating • Talk about a safety plan • Emphasize the positives • Evaluate the persons potential • Refer to the EAP Tips for Confronting the Employee

• Private and confidential • Focus on job performance • Document declining performance • Maintain a supportive attitude • Give the employee a chance to “tell their story” • Be clear about all duties and expectations • Be fair and consistent Tips…. • Don’t make value judgments • Make no excuses for poor performance • Be prepared to meet with defensiveness • If the employee reports they are sick….refer to a medical professional • Hold to your convictions regarding their decline • Seize the opportunity to seek help for the employee Tips…. • Set up a follow up meeting • Explain how to utilize a EAP • Make a Management Referral when a employee is a Threat to Self or Others, Tested Positive for Drugs or Alcohol, Psychological Impairment, or Job Performance Deterioration How Can a Manager Deal with Difficult Employees

• Evaluate the situation • Develop a plan • Act quickly • Confront the problem • Focus on the behavior • Be conscious of the employee’s feelings • Use disarming techniques • Know When You are in Over Your Head, call the EAP representative to set up an immediate consultation • If the employee becomes combative or threatening to self call 911 How to Document Poor Work Performance and Attendance

• Note incidents: dates…time • Record behaviors observed • Include acceptable and unacceptable performance • All information is confidential, and discussed only with the employee and official company representative In Conclusion…..

BayView Professional BayView EAP Associates Employee Assistance Program

450-2250

“Everything we shut our eyes to, everything we run away from…can become a source of beauty, joy, and strength if faced with an open mind.”

~Henry Miller APPLICATION OF THE ADA TO EMPLOYEES WITH MENTAL HEALTH DISABILITIES

Celia J. Collins EEOC resolved 5000 charges of discrimination based on mental health conditions in 2016 and obtained $20 million for employees denied employment and reasonable accommodation.

Increase in EEOC charges filed per common mental health disabilities

2500

2000

1500 2007 1000 2011 2016 500

0 Anxiety Depression PTSD Disorder From EEOC.gov The Americans with Disabilities Act

• Prohibits employers from discriminating against qualified individual with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment

• Applies to employers with 15 or more employees

• An employer must make a reasonable accommodation to allow a disabled employee to perform the essential functions of the job unless it can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

Statutory Definition of Mental Impairment

Mental Impairment under the ADA – “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities” Definition of Disability

ADAAA (ADA Amendments Act of 2008)

• “definition construed in favor of broad coverage of individuals”

3 Categories of Protection:

• Impairment that substantially limits one or more major life activities • Record of a substantially limiting impairment • Being regarded as having a substantially limiting impairment

Substantially Limited

• EEOC regulations – “not meant to be a demanding standard” • Impairment is a disability if individual: • Unable to perform a major life activity; or • Restricted in the condition, duration or manner under which a major life activity can be performed as compared to the average person • Duration must be more than several months • Consider severity • Without regard to “ameliorative effects” of mitigating measures • Medication, medical supplies, equipment, or appliances • Prosthetics • Hearing aids and other hearing devices • Coping strategies

Episodic/Remission

• Conditions that are episodic or in remission are disabilities if they substantially limit a major life activity when active

• Examples:

• Manic Depressive Disorder

• Bipolar disorder and PTSD Major Life Activities Typically Implicated by Mental Health Impairment

• Thinking

• Concentrating

• Interacting with others

• Sleeping

• Caring for oneself

• Working

• Communicating “RECORD OF IMPAIRMENT”

• Substantially limiting in the past

• Includes individuals mischaracterized as having a disability

• May be relevant cases where someone is using a mitigating measure to control a condition “REGARDED AS” DISABLED

• Impairment is not substantially limiting, but individual is treated as such

• Impairment is substantially limited as the result of the attitudes of others

• No impairment, but employer treats an individual as if he or she has a substantially limiting impairment

Types of Protected Psychiatric Impairments

• Anxiety disorder

• Panic disorder

• Bi-polar disorder

• Depression

• Post-traumatic stress disorder

• Schizophrenia

• Adjustment disorder Impairments Not Covered

• Pyromania

• Kleptomania

• Compulsive gambling

• Current illegal use of drugs

• Certain sexual disorders ??? Personality Traits Are Not Covered Impairments

• Poor judgment

• Chronic lateness

• Irritability

• Inability to get along with supervisor or co-workers WHAT IS REASONABLE ACCOMMODATION?

• A change in the workplace in the way things are customarily done that provides an individual with a disability with equal employment opportunities

• Accommodations are available for the application process, to enable an individual with a disability to perform essential job functions, and to provide equal benefits and privileges of employment. WHAT TRIGGERS ACCOMMODATION PROCESS

Specific request for accommodation

Obvious disability

Employer’s recognition of need for accommodation, performance decline, excessive tardy or absence

Employee’s attempt to return to work after LOA for disability

INTERACTIVE PROCESS

“To determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”

29 CFR 1630.2(o)(3) IMPLEMENTING THE INTERACTIVE PROCESS

• Analyze the particular job, its purpose and essential functions

• Consult with the employee to ascertain job-related limitations and possible accommodation

• Consult with the employee, identify potential accommodations and assess effectiveness

• Select and implement most mutually appropriate accommodation with consideration to employee’s preference

• Continuing obligation Types of Accommodations

• Physical modifications

• Modified work schedules

• Job restructuring

• Changing supervisory methods

• Job coach

• Telework

• Leave

• Reassignment to a vacant position

Accommodations Not Required

• Lowering production or performance standards

• Excusing violations of conduct rules that are job-related and consistent with business necessity

• Removing an essential function

• Monitoring an employee’s use of medication

• Actions that would result in undue hardship (i.e. significant difficulty or expense) DOL SUGGESTED ACCOMMODATIONS:

UNITED STATES DEPARTMENT OF LABOR OFFICE OF DISABILITY EMPLOYMENT POLICY : Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities

• Flexible Workplace - Telecommuting and/or working from home.

• Scheduling - Part-time work hours, job sharing, adjustments in the start or end of work hours, compensation time and/or "make up" of missed time.

• Leave - Sick leave for reasons related to mental health, flexible use of vacation time, additional unpaid or administrative leave for treatment or recovery, leaves of absence and/or use of occasional leave (a few hours at a time) for therapy and other related appointments.

• Breaks - Breaks according to individual needs rather than a fixed schedule, more frequent breaks and/or greater flexibility in scheduling breaks, provision of backup coverage during breaks, and telephone breaks during work hours to call professionals and others needed for support.

• Other Policies - Beverages and/or food permitted at workstations, if necessary, to mitigate the side effects of medications, on-site job coaches.

DOL SUGGESTED ACCOMMODATIONS:

Modifications: • Reduction and/or removal of distractions in the work area. • Addition of room dividers, partitions or other soundproofing or visual barriers between workspaces to reduce noise or visual distractions. • Private offices or private space enclosures. • Office/work space location away from noisy machinery. • Reduction of workplace noise that can be adjusted (such as telephone volume). • Increased natural lighting or full spectrum lighting. • Music (with headset) to block out distractions.

Equipment/Technology: • Tape recorders for recording/reviewing meetings and training sessions. • "White noise" or environmental sound machines. • Handheld electronic organizers, software calendars and organizer programs. • Remote job coaching, laptop computers, personal digital assistants and office computer access via remote locations. • Software that minimizes computerized distractions such as pop-up screens.

DOL SUGGESTED ACCOMMODATIONS:

Job Duties

• Modification or removal of non-essential job duties or restructuring of the job to include only the essential job functions. • Division of large assignments into smaller tasks and goals. • Additional assistance and/or time for orientation activities, training and learning job tasks and new responsibilities. • Additional training or modified training materials.

Management/Supervision • Implementation of flexible and supportive supervision style; positive reinforcement and feedback; adjustments in level of supervision or structure, such as more frequent meetings to help prioritize tasks; and open communication with supervisors regarding performance and work expectations.

• Additional forms of communication and/or written and visual tools, including communication of assignments and instructions in the employee's preferred learning style (written, verbal, e-mail, demonstration); creation and implementation of written tools such as daily "to-do" lists, step-by-step checklists, written (in addition to verbal) instructions and typed minutes of meetings. DOL SUGGESTED ACCOMMODATIONS:

Management/Supervision (cont’d)

• Regularly scheduled meetings (weekly or monthly) with employees to discuss workplace issues and productivity, including annual discussions as part of performance appraisals to assess abilities and discuss promotional opportunities.

• Development of strategies to deal with problems before they arise.

• Written work agreements that include any agreed upon accommodations, long-term and short-term goals, expectations of responsibilities and consequences of not meeting performance standards.

• Education of all employees about their right to accommodations.

• Relevant training for all employees, including co-workers and supervisory staff.

What Is Undue Hardship

• Limitation on employer’s obligation to provide reasonable accommodation

• Significant difficulty or expense and focuses on resources and circumstances of particular employer in relationship to cost or difficulty of providing specific accommodation

• Consider employer’s size, financial resources, the nature and structure of its operation

• Not only financial difficulty, but to accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter nature or operation of business

• Assessed on case-by-case basis

SAFETY ISSUES

• Individual with a disability may only be excluded for safety reasons if he or she poses a “direct threat” to the health or safety of him/herself or others.

• Direct threat means a significant risk of substantial harm to self or others that cannot be reduced or eliminated through reasonable accommodation

• Determination relies on best available objective evidence from treatment provider or other reliable source and not on stereotypical generalizations or bias about mental illnesses.

• An individualized assessment is required

DIRECT THREAT FACTORS

• Nature of the risk and severity of the potential harm

• Duration of the risk

• Likelihood that the potential harm will occur

• Imminence of the risk

• Availability of reasonable accommodation

Documentation

• Employers may obtain reasonable documentation that an employee has a mental disability and needs an accommodation

• Documentation should establish the existence of an impairment and the degree to which the impairment limits major life activities

• Employer entitled to no more information than is necessary to determine that individual has a disability and needs an accommodation

• Employer may require documentation come from a health care professional CONFIDENTIALITY

• Information about an employee’s reasonable accommodation must be kept confidential

• EXCEPTION: Information may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations

• EXCEPTION: Information may be disclosed to individuals involved in making decisions about reasonable accommodations

• Exceptions: Where necessary for emergency treatment; to officials investigating compliance with Rehabilitation Act; for workers’ compensation and insurance purposes

EEOC Guidance December 2016

Depression, PTSD and Other Mental Health Conditions in the Workplace: Your Legal Rights

• Can’t discriminate because of a mental health condition or rely on myths or stereotypes about the condition to decide whether employees can perform the job

• Must have objective evidence that employee cannot perform job or creates a safety risk even with a reasonable accommodation

• Employee can keep condition private unless they ask for accommodation or there is objective evidence that he or she can’t perform the job or poses a safety risk

• Employee has right to reasonable accommodation for any mental health condition that substantially limits ability to concentrate, interact with others, communicate, eat, sleep, care for self, regulate thoughts or emotions or do any other major life activity. EEOC Guidance December 2016

Depression, PTSD and Other Mental Health Conditions in the Workplace: Your Legal Rights

• Episodic symptoms may qualify – major depression, PTSD, bi-polar, schizophrenia, OCD

• Employer does not have to excuse poor performance caused by a medical condition or the side effects of medication

• If a reasonable accommodation would help the employee do his job, the employer must provide unless it involves significant difficulty or expense

• If the employee can’t perform essential functions and has no paid leave, he may be entitled to unpaid leave as a reasonable accommodation

• If employee is permanently unable to perform his tasks, he may ask employer to reassign to one he can do, if available. Managing Employee’s with Psychiatric Disabilities

• The ADA does NOT protect an employee from misconduct, even if the misconduct is related to disability

• Courts have upheld terminations for misconduct even when the misconduct was the symptom of a mental illness

“An employer consistent with the ADA…may terminate an employee for inappropriate behavior even when that behavior is precipitated by the employee’s disability.”

“So long as the employee’s misconduct is related to the performance of her job, an employer may discipline or terminate the employee even if her misconduct was caused by the disability.”

Managing Employee’s with Psychiatric Disabilities

A SECOND CHANCE IS NOT A REQUIRED ACCOMMODATION

• The Accommodation request should come before the discipline.

EEOC Guidance, the Americans with Disabilities Act, Applying Performance and Conduct Standards to Employees with Disabilities

“If an employee states that her disability is the cause of the conduct problem, requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.”

“Excusing workplace misconduct to provide a fresh start/second chance to the employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA”

Celia J. Collins (251) 441-9241 [email protected] Overview: Trajectories in Health Care 21st Century Cures Act

Wade B. Perry 21st Century Cures Act

• Cures Act was enacted on 12/13/16 • Authorizes $6.3 billion in funding, including $1 billion to help states fight opioid epidemic • Cures Act has numerous aims, including: • Enhance personalized medicine, facilitate health data use for research, and speed up drug development • Develop best practices and evidence-based protocols (“real world evidence”) to support new therapies and improve health and care quality • Expand access to and better coordinate mental health (“MH”) and substance use disorder (“SUD”) care, especially in underserved areas

21st Century Cures Act – HIT Matters (§§ 4001-4012 )

• Reduce burdens (regulatory and documentary) in use of EHRs • Permit physicians to use scribes for EHR documentation requirements • Promote technology/EHRs for pediatric care • Adopt regulations for technology vendor certification prohibiting information blocking and promoting interoperability • Offer hardship exception for eligible professionals whose EHR has been decertified • Establish a trusted exchange framework and common contract for data exchange between health information exchange organizations ("HIEs") • Create national provider digital contact information index 21st Century Cures Act – HIT Matters (§§ 4001-4012 )

• Create a single HIT Advisory Committee to replace HIT Policy and HIT Standards Committees • Secretary to identify activities that are not "information blocking" • Impose penalties of up to $1 million for information blocking ($10 million initial appropriation to OIG for this) • - ONC/OCR to issue guidance on barriers to HIE (remember HISPC?) Enable patients to access longitudinal EHRs through HIEs • GAO to issue studies on patient matching and patient access to health information • Push for greater telehealth coverage by Medicare 21st Century Cures Act – Mental Health Matters (Div. B)

• Strengthening Leadership and Accountability (Title VI) o Nomenclature changes: . Administrator of SAMHSA now "Assistant Secretary for Mental Health and Substance Use" . Substance abuse now "substance use disorder" o Chief Medical Officer for SAMHSA to be appointed o By 9/30/18, Assistant Secretary to publish SAMHSA strategic plan with numerous areas of focus, including improving quality of MH and SUD services, encouragement of more providers to serve rural areas o Creation of Serious Mental Illness Coordinating Committee 21st Century Cures Act – Mental Health Matters (Div. B)

• Ensure MH/SUD Programs Keep Pace with Science/Technology (Title VII) o Create national MH and SU Policy Laboratory to study best practices and implement evidence-based programs • Promote Access to MH and SUD Care (Title IX) o Integrate MH and primary care programs o Create and maintain real-time State databases of MH and SUD beds o Assist individuals in transitioning out of homelessness o Implement adult suicide prevent and intervention programs o Equip pediatric providers to reduce underage drinking through screening and intervention 21st Century Cures Act — Mental Health Matters (Div. B)

• Promote Access to MH and SUD Care (Title IX) (cont'd) o Training programs for medical residents/fellows to provide MH and SUD care in underserved areas — use of technology to support such care and integration of MH and primary care will be prioritized o Minority fellowship program focusing on prevention, education, and treatment of minorities suffering from MH and SUD problems o Report on workforce development efforts due by December 13, 2018 for posting on DHHS website o Create College Campus Task Force to address MH concerns on campuses, recommend future initiatives based on findings 21st Century Cures Act — Mental Health Matters (Div. B)

• Various MH/SUD Programs for Children and Adolescents (Title X) o Pediatric MH care access grants to develop/improve statewide or regional pediatric MH telehealth programs o SUD treatment and early intervention services o Assist in recovery from trauma due to violence-related stress o Screening and treatment for maternal depression o Promotion of infant and early childhood MH intervention and treatment 21st Century Cures Act — Mental Health Matters (Div. B)

• Clarifying HIPAA Permissions (Title XI) o By early 2018, Secretary must convene stakeholders to discuss effect of revised 42 CFR Part 2 rules on patient care, health outcomes, and privacy o By 12/13/2017: . Guidance due on permitted uses and disclosures of PHI, when consent or opportunity to object required . Identify or develop model programs and training materials about permitted uses and disclosures of PHI of MH/SUD patients, including patient and family access rights 21st Century Cures Act — Mental Health Matters (Div. B)

• Mental Health Parity (Title XIII) o By 12/13/2017, Depts. of HHS, Labor and Treasury to issue Compliance Program Guidance for group health plans, insurers about MHPAEA requirements . Include de-identified examples of previous agency findings, examples of compliant and noncompliant NC1TLs o By 6/13/2017, Secretary must convene stakeholders to create action plan to improve federal and State coordination of MH parity enforcement, including toll-free number, website, and centralized collection of and response to patient complaints o HHS and GAO to study parity compliance and enforcement . Five parity violations by plan sponsor or health insurance issuer will lead to compliance audit o Eating disorder benefits are subject to parity requirements Response to the Opioid Epidemic

In 2015, >33,000 individuals died from opioid overdose Response to the Opioid Epidemic

2015 Age-adjusted rate 2.8 to 11.0 11.1 to 13.5 13.6 to 16.0 16.1 to 18.5 18.6 to 21.0 21.0 to 41.5 Death rate due in part to increased prescribing of opioids for chronic pain in belief that opioids are not addictive – 259 million prescriptions in 2012 Response to the Opioid Epidemic

• CDC Guidelines issued March 2016 o Voluntary, best practice tools o Intended to assist PCPs; don't apply to surgical, cancer, hospice patients or minors o Use opioids only when necessary after trying other pain relief methods o Use lowest effective dose o Check PDMP databases and monitor patients during treatment o Prescriptions rarely should exceed 7 days; typically, 3 or fewer days needed o Avoid prescribing opioids and benzodiazepines simultaneously o Make naloxone available when certain risk factors present Response to the Opioid Epidemic

• Federal Efforts to Combat the Epidemic o §1003 of Cures Act directed Secretary to issue $500 million in grants to States in both 2017 and 2018, based on States' incidence of opioid use disorders o Money to be used to improve State PDMPs, abuse prevention efforts, practitioner training, access to treatment o In April 2017, Tom Price announced $485 million in grants to be issued to States and territories Response to the Opioid Epidemic

• State Efforts to Combat the Epidemic o 46 Governors signed Compact to Fight Opioid Addiction in July 2016, agreeing to: . Take steps to reduce improper prescribing . Raise awareness and understanding of addiction . Ensure pathways to recovery o Nine States have limited amount of opioids practitioners may prescribe (5 to 7 days) o o OH requires opioid prescriptions for pain to be filled within 14 days of issuance o NC Medical Board investigating all prescribers who fall within top 1% of two prescribing categories or have had two or more patient deaths in last 12 months o TN, OH, WV, CA, and others have sued opioid manufacturers; more suits likely W. Bo Perry (251) 441-9238 [email protected] WORKERS' COMPENSATION CASE LAW UPDATE

PRESENTED BY: LAWRENCE J. SEITER TRACY P. TURNER WORKERS' COMPENSATION CASES Ex Parte West Frazer, Inc., ___So.3d ___, 2017 WL 4081311 (Ala.Civ.App. September 15, 2017)

Holding: The Court of Civil Appeals granted the employer’s petition for writ of mandamus following a Publix hearing wherein the trial court failed to determine the source and causation of the employee’s injuries. The Court of Appeals specifically held that the trial court failed to determine the source and cause of the employee’s injuries and whether the injury was compensable. At such a Publix hearing, the trial court must make all appropriate findings of fact or the matter will be reversed and remanded for additional findings. Saarinen v. Hall, ___ So.3d ___, 2017 WL 3821732 (Ala. September 1, 2017)

Holding: The Supreme Court held that a co- employee’s failure to install another presumably safer saw was not the equivalent of removal of a safety guard so as to constitute willful conduct under the Workers’ Compensation Act allowing a tort action against a co-employee. Grieser v. Advance Disposal Services Alabama, LLC, ___ So.3d___, 2017 WL 3445618 (Ala.Civ.App. August 11, 2017)

Holding: The Court of Civil Appeals clarified when the Return to Work Statute applies, finding that as a whole it is not an affirmative defense, but that the five subsections are in fact five affirmative defenses which must be pled by the employer in its answer in order that they not be waived. In addition, the Court held that the Return to Work Statute does not ordinarily apply when an employee has been terminated from his or her employment before receiving an initial award of workers’ compensation benefits. Bailey v. Jacksonville Health and Rehabilitation Center, ___So.3d ___, 2017 WL 3096322 (Ala.Civ.App. July 21, 2017)

Holding: The Court of Civil Appeals found that a question of fact existed in regard to whether a CNA contracted scabies while at work and whether this caused alleged psychological injuries, thus precluding summary judgment. The Court further opined that at the summary judgment stage, the trial court cannot weigh conflicting evidence in the record and make credibility determinations. Wyatt v. Baptist Health System, Inc., ___ So.3d ___, 2017 WL 3096691 (Ala.Civ.App. July 21, 2017)

HOLDING: The Court of Civil Appeals upheld the trial court’s determination based on the court’s hearing of the evidence at trial and finding that substantial evidence was presented that the employee did not establish medical causation. Thus, the trial court’s ruling in favor of the employer was affirmed. Ex parte R.E. Garrison Trucking, Inc., 2017 Ala. Civ. App. LEXIS 126 (June 16, 2017)

Holding: The Court of Civil Appeals determined the trial erred in concluding that there was sufficient evidence to hold that the Defendant did business by an agent in Washington County through its "recruitment" policies for its drivers. Based on the insufficiency of evidence to determine that Defendant did business by an agent in Washington County, the Court of Appeals granted Defendant's writ of mandamus and directed that the trial court vacate its order denying Defendant's motion for transfer of venue to Cullman County. Brewton Area YMCA v. Lanier, 2017 Ala. Civ. App. LEXIS 61 (Civ. App. March 17, 2017)

 Holding: The Alabama Court of Civil Appeals determined that: 1) substantial evidence existed at the trial court level regarding the employee's testimony used to prove legal causation; 2) that actual knowledge of a work- related injury existed when the employer-CEO contacted its workers compensation carrier about the work place injury, and the workers compensation carrier subsequently investigated the claim; 3) that injuries to an employee's hip should be treated as a nonscheduled member injury; 4) that the employer was barred from arguing that its retirement plan contributions should not be calculated in the employee's average weekly wage simply because the employer failed to raise such argument at the trial court level; and 5) the employee conceded she was not due TTD and TPD benefits when she was being paid her full salary while recuperating and when she returned to work full time after her accident. Ex parte Hibbett Sporting Goods, Inc., No. 2160069, 2017 Ala. Civ. App. LEXIS 31 (Civ. App. Jan. 27, 2017)

Holding: Venue is proper under §6-3-7(a) (2) in the county where a business has its principal office in the State of Alabama, and §6-3-7(a) (3), stating that venue is proper where a Plaintiff resides, applies if the corporation does business by an agent in the county of Plaintiff's residence. Ex parte Tenax Corp., No. 1151122, 2017 Ala. LEXIS 6 (Jan. 27, 2017)

 Holding: Factors such as control, direction, payment of fees for workers compensation insurance premiums, duration of work, and acquiescence of the risks of employment where physically working are factors that support a contract of hire. When such contract for hire exists, in addition to other enumerated factors, the employer becomes a special employer, as defined by the Alabama Workers Compensation Act, and is thereby relieved of tort liability under the exclusive-remedy provisions of the Alabama Workers Compensation Act. Ex parte Thompson Tractor Co., No. 2160086, 2017 Ala. Civ. App. LEXIS 14 (Civ. App. Jan. 13, 2017)

Holding: When an employee / plaintiff to a workers compensation claim dies before the adjudication of the workers compensation claim, the action abates upon the employee's death, and thereby strips the trial court of subject-matter jurisdiction, forcing the case to be dismissed. A widow to the deceased employee may not be substituted as a plaintiff in such instance because the widow has no claim under the Alabama Workers Compensation Act. Hand Constr., LLC v. Stringer, No. 2150730, 2017 Ala. Civ. App. LEXIS 19 (Civ. App. Jan. 13, 2017)

Holding: Trial court lacked jurisdiction to award benefits under Alabama Code §25-5-35(d) (2) due to the fact

that the employee (Stringer) could not satisfy the two- pronged test under §25-5-35(d) (2) and thereby show that no other state besides Alabama would have jurisdiction over workers compensation claim for benefits in connection with his injuries. Ex parte Associated Gen. Contrs. Workers' Comp. Self-Insured Fund, No. 2160120, 2017 Ala. Civ. App. LEXIS 9 (Civ. App. Jan. 6, 2017)

 Holding: The Alabama Court of Civil Appeals granted AGC's and Good Hope's writ of mandamus directing the Cullman trial court to vacate its order transferring the action to Jefferson County, to reinstate the action in Cullman County, and to enter an order denying Harding's motion to dismiss or, alternatively, to transfer on the basis of improper venue due to AGC's and Good Hope's showing that §6-3-7 controls venue in this instance because Good Hope's principal place of business was in Cullman County. RGIS Inventory Specialists v. Huey et al., 2016 Ala. Civ. App. LEXIS 302 (Ala. Civ. App. Dec. 16, 2016)

 Holding: (1) Since the trial court had not yet dismissed the case when it denied the employer's and the carrier's motion to intervene, the employer and carrier appealed from a valid order. (2) Since the employer and the carrier did not cite any relevant Alabama legal authority to support their argument for their right to intervene for subrogation recovery, they waived their argument that the trial court erred in denying their motion to intervene. Ex parte Tidra Corp, 2016 Ala. Civ. App. LEXIS 252 (Ala. Civ. App. Oct. 07, 2016)

 Holding: (1) Because no party made a required motion, petitioner employer was entitled to a writ of mandamus vacating an order that respondent employee undergo a mental examination. (2) Error in summary judgment requiring the employer to provide the employee physical therapy because no evidentiary hearing required under Ala. Code § 25-5- 77(a) and Ala. Code § 25-5-88 was held, only a properly supported motion for judgment on the pleadings or summary judgment could be granted pretrial, and there was a genuine dispute in regards to whether the employee is entitled to physical therapy as a result of his work-related injury.

 Petition Granted; Writ Issued. RETALIATORY DISCHARGE Foster v. North American Bus Industries, Inc., ___So.3d ___, 2017 WL 1534547 (Ala. April 28, 2017)

Holding: The Supreme Court again addressed the standard of establishing a prima facie case and the evidence necessary to create a question of fact regarding pretext once the defendant puts forth their grounds as to why a claim for workers’ compensation benefits was not the sole reason for the discharge. Accordingly, the Supreme Court reversed the trial court’s grant of summary judgment, and the matter was remanded for further proceedings. Kirby v. Jack's Family Rests., LP, 2017 Ala. Civ. App. LEXIS 121 (June 16, 2017)

Holding: The Court of Civil Appeals determined that the trial court exceeded its discretion in certifying Plaintiff's dismissal of her tort of outrage claim as final, pursuant to Rule 54(b), because Plaintiff's tort of outrage claims relied on the same set of underlying facts as her claim for retaliatory discharge. Thus, in order to avoid the unreasonable risk of inconsistent results posed by separate adjudication of two claims that rely on the same set of underlying facts, the Court of Civil Appeals dismissed Plaintiff's appeal. Tracy P. Turner Lawrence J. Seiter (251) 441-9213 (251) 441-9224 [email protected] [email protected] Where are We and What the Heck are We Supposed to Do?

The current state of employment law under the new administration

Celia J. Collins How Things Have/Can/Will Change

• Replace / Rescind prior Executive Orders

• New Agency leadership rescind/replace guidances and

interpretations

• New Agency leadership rescind/replace Final Regulations

• Statutory changes by Congress

• Judicial philosophy/ Judicial interpretations in Courts

Executive Orders

Rescinded Obama’s Fair Pay and Safe Workplace Order

Blacklisting and Pay transparency

Federal contractors must disclose violations of 14 different labor laws even if dispute settled.

Contracts could be denied if excessive violations

Federal contractors must provide detailed wage statements to each employee

Enjoined by Texas court now rescinded by Trump

Issued Buy American / Hire American Order (may impact employer’s who rely on H-1B’s) Agency Changes

DOL Wage and Hour OSHA OFCCP NLRB EEOC Changes Expected from Agencies Retract, rescind or modify guidances and interpretations

Suspend enforcement of regulations

Adopt new initiatives and strategies

Propose new regulations DOL

Alexander Acosta, Secretary of Labor Confirmed 04/27/2017, US Attorney in Florida Former Head of DOJ Office of Civil Rights Member of NLRB (Bush appointee) Law School Dean

Trump proposed 20% budget cut for DOL

Withdrawal of Agency Interpretations June 7, 2017 Acosta withdrew Administrator's Interpretation No. 2016-01 establishing new standards for Joint Employment.

Acosta withdrew Administrator’s Interpretation No. 2015-1 classification of independent contractors “most workers are employees under the FLSA’s broad definitions.”

Numerous Vacancies Deputy Secretary, Administrator of Wage and Hour awaiting confirmation DOL

Wage & Hour

Status of White Collar Overtime Exemption

Obama increased Wage and Hour investigations by 1/3, cut back is likely.

Trump will re-instate Wage and Hour Opinion Letters which were stopped under Obama.

Persuader Rule stayed by Court and DOL issued Notice to officially rescind EEOC

Victoria Lipnik, Acting Chair – Moderate Republican – Commission seat until 2020

Appointments pending confirmation - Janet Dhillion, Chair, Republican, Corporate General Counsel Daniel Gade, Republican, ADA expert, lost leg in Iraq Both awaiting confirmation vote

2 Democrats, one’s term expires in July 2018 and the other in July 2019

Will be 3 Republicans and 2 Democrats, but Lipnik is moderate on some issues.

EEOC

Strategic Enforcement Plan 2017-2021 Immigration/ Migrant protection Equal Pay Systemic Harassment Inflexible Leave Policies Accommodation for Pregnancy LGBT rights

Expect subtle shifts in priorities

EEOC

Future of Expanded EEO-1

Expanded EEO-1 requires reporting an abundance of additional information - both costly and administrative burden

August 2017 - Frozen by OMB as “unnecessarily burdensome”

EEOC

Future of LGBT Protection

SUMMARY OF CURRENT LAW

• Sexual Orientation –whether a person prefers the company of the opposite sex, their own sex or both sexes – gay, lesbian, bisexual

• Discrimination based solely on sexual orientation prohibited under EEOC interpretation but not strictly prohibited for private employers and by majority of courts interpretation of Title VII.

• Gender non-conformity – a person who does not demonstrate the stereotypical conduct, behavior, demeanor for their gender, i.e., Not manly, not feminine etc.

Discrimination based on failure to conform to gender stereotypes is prohibited whether employee is gay or straight. Future of LGBT Protection

Transgender – a person who identifies as a gender different from their birth gender and may be transitioning in identity, dress and demeanor and/or medically to the non-birth gender.

Discrimination based upon transgender status has increasingly been found to be discrimination based upon unlawful gender stereotyping.

Future of LGBT Protection

Current Court Status 7th Circuit en banc panel holds sexual orientation a protected class under Title VII

2d Circuit and 11th Circuit’s refused to extend Title VII coverage to sexual orientation

Conflict among Courts will likely go to SCOTUS

05/25/2017 Federal District Court holds gender dysphoria is a disability under the ADA – Case Settled

Reasonable accommodations may be required for transgender employees Future of LGBT Protection

Mixed Signals from the White House

Late January White House announces will not rescind Executive Order 11246 which expressly prohibits discrimination on the basis of sexual preference, sexual orientation or transgender status.

White House withdraws Obama era guidance on rights of transgender students under Title IX

White House declines to continue tradition celebrating Gay Pride Month but does not stop agencies from doing so (EEOC, DOD, etc.) Future of LGBT Protection

Mixed Signals from the White House (cont’d)

DOJ files Amicus brief in 2d Cir Title VII sexual orientation case reversing its prior position “the EEOC does not speak for the United States.”

September 2017 – DOJ files Amicus in bakery case supporting right to refuse business on religious grounds.

October 2017 -

DOJ issues memo rescinding transgender protection

Trump issues directive to cease recruiting transgender in military

Future of LGBT Protection

State Law Developments

20 States have passed laws banning discrimination based on sexual orientation or gender identity.

2 more passed laws protecting sexual orientation

NLRB 5 member capacity - currently 2 Democrats (terms expire 2018 and 2019), 1 Republican. 2 Republicans nominated, 1 confirmed, 1 pending confirmation Republican chair’s term expire December 2017 General Counsel’s term expires in December, replacement nominee pending confirmation

6% Funding cut in proposed budget – reduction of 275 employees.

Possible legal changes Withdrawal of Persuader Rule (currently in litigation and temporarily enjoined – NLRB could withdraw appeal)

Scope of Concerted Activity – Purple Communications Social Media / Confidentiality Policies Quickie Election Rule Joint Employer Definition OSHA

Electronic Record Keeping Rule Rule effective January 1, 2017 requiring electronic reporting of illness and injury to be filed by July 1, 2017

May 2017 - OSHA suspended rule. In July, extended compliance date until December 2017.

Issue - filings would be public record effecting reputation of companies and providing fodder for unions. (This may be rolled back.)

Volk’s Rule – Published 12/19/16 Extended OSHA’s time frame to issue citations for record keeping violations from 6 months to 5 years

Trump repealed in April Budgeting Changes – 05/23/2017

Mandatory Paid Maternity Leave Included in proposed budget • 6 weeks paid leave to mother AND father • “Federal-state” paid with unemployment insurance program • Commences in 2020 • States must implement but have latitude to design and finance

Who will fund – Employers through additional payroll taxes Proposed Merger of OFCCP and EEOC

“One agency to combat discrimination”

Congress said “NO” in September 2017

Budget Cuts DOL 20% decrease NLRB 6% decrease EEOC $700K OSHA – very minor reductions Legislation

Increasing Minimum Wage

• Immediate increase from $7.25 to $9.25 • Increase to $15 an hour in 7 years. • Thereafter pegged to median hourly rate BLS

Prediction – Won’t Pass but may be compromised

Side note – Trump campaigned on higher minimum wage – has suggested $10 per hour

Working Families and Flexibility Act Comp Time in the Private Sector

Working Families and Flexibility Act (HR1180) Amend FLSA to allow comp time in private sector

• optional for both employee and employer

• 1.5 hours of comp time for each overtime hour capped at 1600

• Eligible if worked 1000 hours in 12 months

• Employer must pay for unused accrued hours at end of year by January 31 or on separation of employment or upon 30 days of written request by employer

• Employer can choose to buy back hours in excess at 80 at any time and can discontinue comp time program

Passed House with no Democratic votes. Pending Senate vote. Needs 8 Democrats in Senate to pass. Trump will sign.

Courts

Justice Gorsach – Confirmed as Justice on Supreme Court “Brilliant legal mind” Former US Supreme Court Clerk Considered Conservative Strict Constructionist 5/4 ProBusiness Majority in SCOTUS

2016-2017 Supreme Court Employment Law Cases

Class Action Arbitration Waiver Clauses Public Employee Right to Work Law LGBT Rights??

WHAT TO DO

Changes slow and incomplete – no rush to change your practices / policies

Stay Vigilant – Read email alerts and updates

Speak up – Contact Congress person, Senator on pending legislation. Submit comments on proposed regulations

Celia J. Collins (251) 441-9241 [email protected]

Affordable Care Act: 2017 Update • Trump Administration – Executive Order (October 12, 2017) • Nationwide Association Health Plans (AHPs) . Flexibility to offer group coverage across state lines . Designed to promote “healthcare choice and competition” • Trump Administration – Executive Order (October 12, 2017) • Expanding availability of short-term, limited duration insurance . Not afforded some ACA protections (e.g. pre-existing conditions) • Expanding availability of Health Reimbursement Arrangements (HRAs) Affordable Care Act: 2017 Update • Trump Administration – Subsidy Cutoff (October 12, 2017) • Ending cost-sharing reductions (CSRs) . Goal: reduce deductibles and co-pays for many low income people . 18 states have joined in a federal lawsuit to force continued subsidy payments • Congressional Action Plan • Senate bipartisan agreement to fund ACA subsidy payments . Effort to stabilize insurance marketplace • Trump support / non-support Affordable Care Act: 2017 Update • Section 1557 and Gender Identity Discrimination • Nationwide injunction and HHS revisiting of regulation . Franciscan Alliance, Inc. v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. 2016) . Prescott v. Rady Children’s Hospital – San Diego, S.D. Cal. No. 16-cv-02408 (Doc. 22, Sept. 27, 2017) • ACA Coverage Exemption for Birth Control • moral and religious objections by employers . requirement – must notify employees • Lawsuits and Congressional Actions . ACLU and State Attorney Generals . 19 Senate Democrats have signed bill to reverse Trump’s exemption

What’s Next for the ACA?

Jessica L. Welch (251) 441-9273 [email protected] Update on Status of Federal Overtime Rule

Spencer H. Larche Old / Current Rule

• All hours over 40 must be paid at time and one-half the regular rate of pay, unless exempt.

Exempt Employees: • Executive • Administrative • Professional • Outside Sales • Certain Computer Employees New Proposed Rule

• Raised salary requirement for first time since 2004 • Proposed $913 per week ($47,476/year) • Salary level to automatically update every 3 years, starting January 1, 2020 • Was to take effect on December 1, 2016 White Collar Exemption Timeline

07/06/15 09/04/15 05/18/16 Panic Ensues 11/22/16 06/30/17 07/26/17 08/31/17 09/05/17 09/25/17

DOL issues Public Final Rule District DOL Filed DOL Seeks District 5th Cir. Comment Notice of Comment Released Court Reply Brief Public Court Grants Period Proposal Closed Issued in Appeal Comment Dismiss DOL Closed Rulemaking TRO before 5th on White Entire motion Circuit and Collar Case for withdraw Exemptions voluntary support for dismissal wage level Where Does DOL Go From Here?

• Litigation was voluntarily dismissed

• DOL must review public comments, which addressed DOL questions:

• Should new salary level be 2004 level adjusted for inflation? • Should the duties test change? • Should salary level be dependent on employer size, region or other factors? • Should each exemption category have its own standard salary level? • What did employers do to prepare for implementation of 2016 Find Rule? • Should there be an automatic increase in my levels, our time, and if so , how would that be implemented? Where Does DOL Go From Here?

• There will be a new rule sometime in the future

• DOL Secretary Acosta on the record that $47K is too high for a salary level, but that $23K is too low

• Acosta suggested $33K (roughly $635 per week) Where Does DOL Go From Here?

• If you have already made changes in how employers are paid and classified, it’s probably not wise to flip- flop.

• Be prepared for a more moderate increase in the salary level for exemptions.

• Monitor court cases and DOL rulemaking notices to see which way the wind is blowing. QUESTIONS?

Spencer H. Larche (251) 441-9230 [email protected]