Spring 2006
Law Protects Employers When Providing Employee References
You may not remember the name Charles Cullen, but you probably remember the story of the nurse who confessed to killing dozens of patients throughout his career. Despite a questionable employment record, Cullen was able to secure positions at ten different hospitals throughout Pennsylvania and New Jersey. With each new position, Cullen was protected by some former employers' fears of legal suit. Like many former employers, Cullen's were reluctant to provide negative references when contacted by other hospitals looking to employ the nurse. Fear of a defamation law suit led some hospitals to maintain their silence regarding suspicions they may have had about Cullen.
In 2005, Governor Rendell and the Pennsylvania legislature took a step to prevent cases similar to Cullen's by enacting Senate Bill 69, which provides added protection to former employers when giving references to prospective new employers.
Under the new law, an employer who provides information about an employee's job performance "is immune from civil liability for such disclosure or its consequences" unless the employee can prove that the employer acted in bad faith. Now, an employer will only be liable for defamation if the employee can meet the difficult burden of proving by "clear and convincing evidence" that the employer disclosed information that: (1) the employer knew or should have known was false; (2) the employer knew was materially misleading; (3) was false and disclosed recklessly; or (4) was information prohibited by law from being disclosed.
However, employers seeking to avoid liability must still be sure to confine their comments to the former employee's job performance.
Uniformed Services Employment and Re-Employment Act of 1994
The Veterans Benefits Improvement Act of 2004 has amended the Uniformed Services Employment and Re-employment Act of 1994 by expanding the period of continuation of coverage under a health plan for members of the uniformed services. Any person who is absent from a position of employment by reason of service in the uniformed services may elect to continue their health coverage at a cost of no more than 102% of the full premium under the plan. However, if the person performs services for the uniformed services for less than 31 days, the person is only required to pay the employee's share. The maximum period of coverage of a person and the person's dependents has been expanded from the lesser of 18 months or when the employee fails to return to employment as determined under Section 4312, to the lesser of 24 months or when the employee fails to return to employment as determined under Section 4312. The Act also requires employers to provide notice of rights and duties under USERRA by posting a notice where the employer customarily places notices for employees. The DOL has published a poster for use by employer. The poster is available online at: http://www.fels.org/forms/DOL-VET-USERRA-Notice.pdf
Intermittent FMLA Leave
Most employers subject to the federal Family and Medical Leave Act ("FMLA"), such as those with 50 or more employees, are familiar with the FMLA's requirement that an employee be provided 12 weeks of unpaid leave because of a serious health condition of the employee or to care for a spouse, child or parent. However, employers may not be as familiar with the law's requirement to provide employees intermittent leave for periods from an hour or more to several weeks.
Examples of intermittent leave would include leave taken on an occasional basis for medical appointments due to an ongoing serious health condition, or leave taken several days at a time spread over a period of six or more months, such as for chemotherapy. Although a serious health condition is generally defined as an inability to work for more than three days and treatment is given by a health care provider, the requirement does not apply to intermittent leave for pregnancy or chronic serious health conditions, such as asthma, diabetes and epilepsy. Valid intermittent leave for an asthma sufferer would include being unable to report to work due to the onset of an attack or for a pregnant employee would include leave for severe morning sickness.
An employer is entitled to obtain detailed physician certification of an employee's need for intermittent FMLA leave, in accordance with the model form which was developed by the Department of Labor and is available on its web site. However, only one blanket certification from a physician may be required for each 30 day period of intermittent leave for pregnancy, chronic or permanent/long-term conditions. Also, an employee may be required to consult with the employer when planning intermittent leave for medical treatments, so the treatment schedule, if possible, will accommodate the needs of the employer as well as the employee, and will not "unduly disrupt the employer's operations
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