HR Specialist: Illinois Employment Law by Capitol Information Group

HR SPECIALIST

ILLINOIS Employment Law

Trusted compliance advice for Illinois employers

In the News … Supreme Court redefines race discrimination boundaries In one of its most anticipated employment law decisions in years, the U.S. Supreme Court has ruled that New Haven, Conn., discriminated against white firefighters when it refused to promote them after they passed a test that most black co-workers failed. The court said New Haven shouldn’t have thrown out the test results just because it feared the test had a disparate impact on black firefighters. Continued on page 5

Disabled employees don’t find United’s skies too friendly The EEOC has sued Chicago-based United Airlines for disability discrimination on behalf of disabled employees. Joe Boswell, who worked at San Francisco Airport, developed a brain tumor that required him to take leave for treatment. United couldn’t find an accommodation that would allow Boswell to stay in his previous job. According to the EEOC, Boswell applied for other open positions at the airline, but was consistently turned down. The EEOC maintains employers have an obligation to place disabled workers in vacant positions for which they are qualified. In the commission’s view, United violates the ADA each time it refuses to do so. Illinois Employment Law is published by HR Specialist and is edited by David B. Ritter, who chairs the Labor and Employment Practice Group at Neal Gerber Eisenberg LLP in Chicago. He represents management in all areas of labor and employment law. Contact him at: dritter@ngelaw.com, (312) 269-8444.

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August 2009 Vol. 3, No. 8

Editor: David B. Ritter, Esq., Neal Gerber Eisenberg LLP, Chicago

Fight harassment with ‘no sex talk’ policy F

or years, employers have grappled with what sexual harassment is and what it isn’t. Lost in the debate is the fact that a workplace is just that—a place where work is supposed to be done. Here’s a good way to end the arguments about what is sexual harassment and prevent potential problems down the line: Implement a policy that clearly bans sexual banter. Then punish those in violation. Remember, in most discrimination cases (which employees often file after they’ve been disciplined for harassment) the employee has to show he

was meeting the employer’s expectations—and breaking a rule such as this one means he wasn’t. Recent case: LG Electronics has a strict workplace rule that prohibits “sexually oriented or explicit remarks, including written or oral references to sexual conduct.” All employees receive a copy of the rule. Gabriel Othon apparently ignored the rule because he propositioned his female boss for various sexual acts. He then told her he would blackmail her if she didn’t consent, and suggested that the work problems he was having Continued on page 2

Separate the ‘conduct’ from the disability S

ome disabled employees have the mistaken notion that their disabilities give them a pass that excuses unacceptable behavior. Those with drug or alcohol abuse problems, or who have certain psychiatric disorders, often believe they’re immune from discipline. However, there is no duty to accommodate what is essentially conduct. For example, employers don’t have to tolerate an alcoholic who shows up at work disheveled and reeking of alcohol or someone with a mental disorder who threatens to harm co-workers. Recent case: Dr. Philip Bodenstab

was fired from his position as an anesthesiologist at the Cook County Hospital after he telephoned a friend in Seattle and made threats. The friend said Bodenstab told her he had recently discovered a cancerous lesion on his lip and was going to the Mayo Clinic to see whether the cancer had spread. Then he allegedly told her that if it had spread, he was going to kill his supervisor and several of the other doctors at the hospital. He added that he knew he might die in the ensuing battle with police. Disturbed by the conversation, the Continued on page 2

IN THIS ISSUE

Scale back policies that exceed USERRA . . . . . . . . .2 FMLA: When doing good turns out bad . . . . . . . . . . .6 Employers don’t have to be mind readers . . . . . . . . .3 What’s up, doc? Contacting FMLA medical providers .7 Promotion policies: A 6-step legal process . . . . . . . .4 The Mailbag: Your questions answered . . . . . . . . . . .8 National Institute of Business Management

Feel free to scale back leave, pay policies that exceed USERRA requirements

‘No sex talk’ policy (Cont. from page 1)

would all go away if they had sex. Then he told others that his supervisor was having an affair with another employee. Not surprisingly, the supervisor reported Othon’s proposition to HR. Othon was asked whether the allegations were true and he readily admitted his conduct. LG then fired him for breaking the rule on sex talk. He sued, alleging discrimination. But the court said he had to show that he had been meeting his employer’s legitimate expectations. Since he admitted to breaking a workplace rule, he couldn’t show that. His case was dismissed. (Othon v. LG Electronics, No. 08-C-878, SD IL, 2009)

Separate ‘conduct’ (Cont. from page 1)

friend called the Chicago police, who alerted Bodenstab’s supervisor and colleagues. Eventually, Bodenstab received inpatient psychiatric care. Even so, the hospital fired him for threatening his coworkers. He sued, alleging that the hospital had refused to accommodate his psychiatric disability. The 7th Circuit Court of Appeals disagreed. It said that employers are required to accommodate disabilities, not conduct. The threats, even if they were somehow related to his disability, amounted to conduct that warranted punishment. (Bodenstab v. County of Cook, No. 08-1450, 7th Cir., 2009) Final note: It may not be so clear-cut when a disability has an accompanying behavioral component. In that case, reassignment to a position that doesn’t involve direct contact with the public might be reasonable. 2

Illinois Employment Law • August 2009

embers of the armed services are protected from discrimination and have re-employment and leave rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). But the law doesn’t require employers to indefinitely continue what amount to voluntary special privileges for service members. Recent case: Ryan Crews was a police officer with the city of Mt. Vernon. He was also a member of the Army National Guard, a branch of the services that is covered by USERRA. Crews had to attend regular weekend training and drills about once per month. When Crews went on weekend duty, he sometimes missed a scheduled weekend shift as a police officer. Starting in 1997, the city allowed Guard members who missed a regular shift to instead work during their days off. They didn’t have to use vacation or other leave, and they didn’t lose pay for their missed military time. Other employees who had to miss a weekend shift were not allowed to make up the time. By 2006 the number of police officers who were also Guard members had grown, making it very difficult to schedule them during the week following a drill. Plus, costs skyrocketed because the Guard members collected full pay while fill-in officers received overtime pay. Eventually the city revoked the policy. It still allowed Crews and the others to take the time off for drills, but it no longer allowed them to make up the time. Crews sued. He alleged that the city had removed a benefit owed to him because he was a member of the guard. He argued USERRA made that illegal. The 7th Circuit Court of Appeals disagreed. It concluded that Crews

What USERRA requires • Members of the uniformed services cannot be denied re-employment, retention, promotion or any “benefit of employment” on the basis of that membership or obligation. • An employer also cannot discriminate or take any adverse employment action against an individual because he or she is a member of the uniformed services. • If employees go on military leave, employers are required to reemploy them in the same or similar jobs when they return, as long as the absence is less than five years and they reapply within the appropriate time limits. • While employees are on military leave, employers don’t need to leave their jobs open. They can hire replacements. But returning workers are entitled to their old jobs. If your organization had to downsize or eliminate the job while the employee was on military leave, the employee has no right to reinstatement.

and his fellow officer/soldiers had actually been receiving extra privileges, and cutting those extras did not violate USERRA. (Crews v. City of Mt. Vernon, No. 08-2435, 7th Cir., 2009) Final note: The court made clear that special rights set out in USERRA are still in force. Those rights include additional job protections after citizen soldiers return from active duty.

Read the current issue of Illinois Employment Law and more advice online at www.theHRSpecialist.com. www.theHRSpecialist.com

You don’t have to be a mind reader! Make employees follow promotion procedures E

mployees who want promotions or transfers have to request them using whatever method the employer sets. They can’t just casually express their desire for the job. Recent case: Carla Hill worked for the U.S. Postal Service and filed several discrimination claims after she developed back problems. She claimed she casually expressed her desire to be transferred to a less physically taxing opening as a desk clerk. When the post office filled three such openings with other candidates, Hill sued, claiming she had not been offered the jobs in retaliation for her discrimination claims. But the post office explained that the proper transfer procedure was to write a letter to one’s supervisor

requesting the job. Hill had not done that, while the three others had. Hill argued that the rule wasn’t written, so it must not exist. The court dismissed her retaliation claim, reasoning that when an employer creates a process, employees have to follow it. While it might have been better for the rule to be written, the court was satisfied the rule did exist and Hill didn’t use it. No one expects employers to guess who might be interested in a position based on casual conversations. (Hill v. Potter, No. 07-CV-6835, SD IL, 2009) Final note: Your best bet is to provide clear and explicit instructions for how to apply for open positions—in writing. Then publicize the process and regularly remind employees about it.

What would you do? Employee claims harassment but won’t identify alleged culprit O

ccasionally, employees work up the nerve to complain about sexual harassment only to get cold feet about pressing their complaints. What should you do if an employee complains, but then just asks for a transfer instead of identifying the alleged harasser? That’s the situation one employer recently faced. Recent case: The EEOC sued Caterpillar on behalf of several women who claimed the company had failed to respond to their sexual harassment complaints. One of them, Virginia Early, claimed she called HR about a security guard who she said propositioned her. According to the HR rep’s notes, Early said she wanted a transfer and didn’t want to identify the alleged harasser. Early got the transfer. Then she joined the EEOC sexual www.theHRSpecialist.com

harassment lawsuit, alleging that the security guard had essentially threatened to rape her. The court dismissed her claim. It reasoned that the company hadn’t known about the rape threat since Early hadn’t mentioned specifics. Plus, the company couldn’t really conduct an investigation since all it knew was that the alleged harasser was a male security guard. The court also pointed out that Early got what she asked for—a transfer—and that she never complained about harassment after she was moved. (EEOC v. Caterpillar, No. 03-C-5636, ND IL, 2009) Final note: Always take contemporaneous notes whenever an employee reports harassment or discrimination. That way, you can prove what you knew and when you learned of it.

Legal Briefs Handle accuser with care in whistle-blowing cases Illinois law doesn’t allow employers to fire employees for reporting wrongdoing that compromises public policy. What that means is open to interpretation. Recent case: Calvin Benford’s job was to load trucks with cases of beverages. Benford told a supervisor a coworker had given him what he thought were bogus loading instructions, with the goal of stealing the cargo. Confronted, the co-worker said Benford was intoxicated. In fact, Benford did test positive for drugs. Benford sued, alleging he had been forced to take the drug test as retaliation for reporting his suspicions. His argument was simple: If he hadn’t reported the co-worker, he never would have been tested and wouldn’t have been fired. The court said that under the circumstances, a jury should decide whether Benford was wrongfully terminated in violation of public policy. (Benford v. Chicago Beverage, No. 07CV-6958, ND IL, 2009)

ADA accommodation: Yes to time off, no to paid time off Employers have to reasonably accommodate disabilities, and those accommodations may include reduced hours or time off. However, employees aren’t entitled to paid time off. Recent case: Shawnetta Graham was a library worker at a juvenile detention facility when she slipped on ice and hurt her knee and ankle. From then on, she had trouble standing and walking. Her employer offered to accommodate her with medical leave until she could return to work. She took the leave but then sued, alleging that she had lost pay while out. The court rejected her claim, explaining that disabled employees may be entitled to time off to deal with the disability, but it doesn’t have to be paid time off. If employees don’t have accumulated sick or vacation time, they are simply out of luck. (Graham v. State of Illinois, No. 07-C-7078, ND IL, 2009) August 2009 • Illinois Employment Law

Compliance Corner

Insight from TheHRSpecialist.com

Choosing employees for promotion: a 6-step legal process Sample policy I Applying for internal openings f your organization is typical, you’re relying more heavily on internal promotions than in the past. And as greater numbers of existing employees compete for coveted “inside” jobs, expect a corresponding rise in the number of failure-to-promote lawsuits. HR people and managers are aware of the legal dangers in hiring outside applicants. But many forget that internal promotions also carry risks.

The following sample policy comes from The Book of Company Policies (www.theHRSpecialist.com/reports). Feel free to alter it to suit your organization’s purposes. “XYZ believes that job opportunities are often best filled from within the organization. Therefore, XYZ maintains a job-posting system so you can learn about job openings and express interest in those for which you are qualified. “To apply for a posted position, you need to have the required skills, have been in your current position for at least one year and have at least satisfactory performance, attendance and punctuality.”

Base promotions on job criteria Private employers are generally free to decide when to hand out promotions and raises, unless an employment contract or collective-bargaining agreement puts limits on the organization. But you still must keep discrimination out of your promotion process. Reason: Promotions fall under the heading of “terms, conditions or privileges of employment,” meaning they’re covered by both state and federal anti-bias laws, including Title VII. So make sure your promotion decisions don’t discriminate against employees because of age, race, religion, national origin, color, sex, pregnancy or disability. To do that, remind hiring managers to base promotion decisions on neutral, job-based criteria. To bring failure-to-promote claims to court, employees must show:

• They are members of a protected group. • They are qualified for (and applied for) the promotion sought. • They were rejected despite their qualifications. • Other similarly qualified employees who weren’t members of a protected class were promoted instead.

6 steps to legal promotions Most failure-to-promote suits hinge on inconsistencies in your job-filling

Instant Online HR Answers 14-Day Free Trial Get FREE access to more than 5,000 HR articles plus a Free Bonus Report—“10 Employment Laws Every Manager Should Know.” You also get: • HR Law 101: a plain-English database of every important federal employment law • Sample policies, Q&As, customizable HR memos, self-audits and more • State-specific employment law advice. Start your free, no-risk trial today at www.theHRSpecialist.com/trial.

Illinois Employment Law • August 2009

process. To ensure a discriminationproof selection process, you should: 1. Analyze the position. Define which characteristics are essential to the job, including manual and creative skills, education, training and supervisory or managerial ability. 2. Determine neutral criteria for screening candidates, such as the employee’s work record. 3. Develop a promotion policy. Consider whether to give seniority preference and whether you should publicize job opportunities within the organization before going outside. Tip: Don’t require minimum length of service by employees before being eligible for promotions. That only penalizes fast learners or top performers by classifying them as job-hoppers. 4. Train hiring managers to base promotion decisions on neutral, jobbased criteria applied equally to all. 5. Analyze your promotion system for bias. Make sure it doesn’t eliminate certain categories of people from job advancement. Distribute job announcements widely, not just in public spaces of your workplace. 6. Avoid specific promises in company handbooks, job interviews and employment contracts that commit you to handing out promotions. STAFF

Editor: David B. Ritter, Esq., Publisher: Phillip Ash Neal Gerber Eisenberg LLP, Chicago, Associate Publisher: Adam Goldstein (312) 269-8444 Editorial Director: Patrick DiDomenico Contributing Editor: Copy Editor: Cal Butera Anniken Davenport, Esq., HRILeditor@NIBM.net Production Editor: Nancy Asman Senior Editor: John Wilcox, Customer Service: (800) 543-2055, jwilcox@nibm.net, (703) 905-4506 customer@NIBM.net Vol. 3, No. 8 HR Specialist: Illinois Employment Law (ISSN 1934-1598) is published monthly by the National Institute of Business Management LLC, 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA 22043-2004, (800) 543-2055, www.theHRSpecialist.com. Annual subscription price: $299. © 2009, National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: Illinois Employment Law, please visit www.copyright.com or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA 01923. (978) 750-8400. Fax: (978) 646-8600. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney.

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In the News ... Supreme Court toughens path for workers’ age bias suits In an important employer victory, the U.S. Supreme Court ruled last month that for employees to successfully bring lawsuits under the Age Discrimination in Employment Act, they must now show that age discrimination was the cause of their termination or other adverse job action—not just one of several possible contributing factors. This decidedly pro-employer ruling will set a higher bar for workers, making it more difficult for them to win age discrimination suits in court. Read a full analysis of the case at www. theHRSpecialist.com/Gross. (Gross v. FBL Financial Services, No. 08-441) Outlook: Expect a push for legislation that would reverse this decision, as Congress did after the Ledbetter pay bias case.

DOL pays $500 million to uranium plant victims The Paducah Gaseous Diffusion Plant in Paducah, Ky., processed more than 1 million tons of uranium during the Cold War, often without adequate safeguards for employees. Now the U.S. Department of Labor has paid out more than $500 million in benefits to plant employees and their survivors under the Energy Employees Occupational Illness

Supreme Court decision (Cont. from page 1)

Widely seen as a landmark victory for employees, the decision also clearly spells out what employers should do when a properly administered employment test might benefit one group at the expense of another. “As long as the employer can show that the test is job-related and consistent with business necessity,” said employment law attorney Josh Davis, “it should accept the results of the test.” Read more about the case at www. theHRSpecialist.com/Ricci. www.theHRSpecialist.com

No haircut, no job: Was it discrimination? A jury will decide whether Wackenhut Inc., discriminated against Lord Osunfarian Xodus when the security firm turned him down for a security guard position. Xodus, a Chicagoan who practices Rastafari, claimed he lost out on the job after he refused to cut his dreadlocks for religious reasons. Xodus said he told Wackenhut managers about the religious significance of his dreads when he interviewed for the job. Wackenhut maintains no discussion of religion occurred and Xodus was simply denied the position because he refused to cut his hair to comply with company policy. Both sides filed motions for summary judgment, but the federal district court for Northern Illinois denied both motions, ruling that a jury should determine whether religion was discussed. Note: Employers would be wise to maintain records of hiring interviews. Usually this means contemporaneous notes by the person who conducts the interview. That way, you’ll have a record that will probably be more plausible than the applicant’s memory. If you use some sort of recording device, obtain the applicant’s consent to be recorded—and check with your attorney to make sure your actions do not violate wiretap and privacy laws.

Compensation Program Act. Many of the plant’s employees lived in Southern Illinois. Former employees who develop cancer, beryllium disease, silicosis or other conditions related to their employment at the plant (and their heirs) may be eligible for benefits.

Rockford firm settles race bias suit for $630,000 Rockford-based Area Erectors Inc., has agreed to settle a class-action lawsuit brought by 23 workers who alleged racial discrimination. According to the EEOC, the company laid off black workers while keeping equally qualified and tenured white workers. Additionally, the company fired a black worker, Giles Jefferson, after it found out he had filed racial discrimination charges against a previous employer. In addition to paying $630,000, the company agreed to reinstate eligible employees, implement a racial discrimination policy and open a process to report and resolve racial discrimination complaints. During the three-year consent decree, the company must report to the EEOC all complaints and provide the commission with details of each layoff.

Flextime and early-exit Fridays top employees’ summer wish list More flextime was the leading choice of summer perks sought by employees, according to a survey by Robert Half International. Flextime was identified by 38% of respondents, followed by the ability to leave work early on Fridays (32%). Employees also expressed an interest in relaxed dress codes and potluck meals and picnics. Note: As with winter holiday parties, limit the amount of alcohol consumed at company summer functions.

Competition for job openings heats up to record high Those few employers that are adding staff are sifting through more résumés than ever. According to the Bureau of Labor Statistics, employers on average, are evaluating 5.4 candidates for each of their openings. The calculation is based on April 2009 figures. To show how quickly the picture has changed, consider that employers were only seeing 1.7 candidates per opening in December of 2007. The April figure was a hefty jump from March, when employers were seeing 4.8 candidates per opening. August 2009 • Illinois Employment Law

In the Spotlight

by David B. Ritter, Esq., Neal Gerber Eisenberg LLP, Chicago

A good deed punished: Voluntary FMLA leave can become a mandate U

nder the FMLA, only employers who have 50 or more employees within 75 miles of the company’s work site are required to provide FMLA leave to their employees. The requirement is commonly known as the “50/75 rule.” Can an employer that has fewer than 50 employees within 75 miles of the company’s work site willingly agree to provide its employees with FMLA rights and benefits? That situation recently occurred in Reaux v. Infohealth Management Corp. In Reaux, Judge Blanche M. Manning of the Northern District of Illinois recently ruled that employers that are not otherwise required to provide FMLA leave could wind up subjecting themselves to the FMLA by promising such leave.

By the book Infohealth Management Corp. was not obligated to provide FMLA leave to its employees because it did not satisfy the 50/75 rule. However, Infohealth’s employee handbook, which employees received at the time of hire, contained a provision explaining that all employees could take FMLA leave for a serious health condition, provided that they satisfied the FMLA employee eligibility requirements. Like the federal law, Infohealth’s provision required that employees must have worked for the company for a total of at least 12 months and had worked a minimum of 1,250 hours over the previous 12 months to be eligible for leave.

Out on leave, then fired Like all other Infohealth employees, Deborah Reaux, an administrative assistant, received a copy of the employee handbook when she began working for the company. Reaux became pregnant and requested maternity leave by filling out the requisite paperwork. Her supervisors assured 6

Illinois Employment Law • August 2009

her that she could take “FMLA leave,” and she did once her child was born on Aug. 1, 2006. She was due to return to work on Sept. 11, 2006. For unspecified reasons, Infohealth terminated her employment on Sept. 7, 2006.

Your good-faith decision to provide your employees with a benefit can later land you in hot water. Reaux filed suit against Infohealth in federal court, alleging that the company had violated the FMLA by terminating her while she was on job-protected leave.

Motion denied The company moved to dismiss the suit, arguing that under the 50/75 rule, Reaux was not an “eligible employee” and thus was not on a job-protected leave. Infohealth also argued that the handbook contained an at-will employment disclaimer that gave the company the power to terminate its employees at any time and for any reason. Manning disagreed with Infohealth’s position, noting that the 7th Circuit had indicated that, in appropriate cases, “equitable estoppel” may be used to prevent an employer from asserting a statutory defense to FMLA eligibility. Because “Infohealth allegedly told Reaux she could take FMLA leave, Reaux did so, and was fired while she was still on leave,” Manning held that Infohealth was “equitably estopped” from raising the 50/75 rule as a statutory defense. The judge further disagreed with Infohealth’s position that Reaux could not have reasonably relied on the written and oral assurances about her

eligibility for FMLA leave merely because of the at-will language in the employee handbook. Indeed, Manning reasoned that Infohealth’s position was “at odds with the well-established rule that regardless of whether an employee may be terminated ‘at will,’ the FMLA ‘prohibits an employer from interfering with an employee’s attempt to exercise her right to medical leave.’” Accordingly, Infohealth’s motion to dismiss was denied in its entirety.

What employers can do When drafting and applying their time off, leave and other employment policies, employers should be careful not to inadvertently subject themselves to various obligations under the FMLA and other employment laws to which they are otherwise not covered. The Northern District of Illinois has made clear that employers that voluntarily offer their employees benefits that they are not otherwise entitled to receive cannot later defend a claim of unlawful termination by arguing that their employees were not eligible or entitled to such benefits. According to Reaux v. Infohealth Management Corp., an employer’s voluntary, good-faith decision to provide its employees with a benefit can later land the employer in hot water.

Help prevent copyright violations Editor’s note: Photocopying or electronic redistribution of HR Specialist: Illinois Employment Law without the written consent of the publisher is a violation of federal copyright law. The National Institute of Business Management will pay $1,000 for evidence of illegal photocopying or electronic distribution that results in successful resolution of a claim. Confidentiality is assured. Please contact Adam P. Goldstein, associate publisher, at (703) 905-4537. www.theHRSpecialist.com

Nuts & Bolts

What’s up, doc? How to collect medical info under new FMLA rules THE LAW The FMLA entitles eligible employees to up to 12 weeks of unpaid leave to recover from a serious health condition or assist an immediate family member with a serious health condition. The key to determining whether the employee or family member has a condition that meets the law’s definition of “serious health condition” is the medical certification the employer receives from the employee’s health care provider. WHAT’S NEW In January, the Bush administration updated FMLA regulations, tightening the rules regarding who may request certification. To maintain employee privacy, the person requesting the information from the health care provider must be an HR professional, a leave administrator, a management official or another health care provider. In no case may it be the employee’s direct supervisor. Further, employers may not ask health care providers for additional information beyond what the certification form contains. Health care providers are allowed, but not required, to provide a diagnosis of the patient’s condition as part of the certification. In the past, medical certification requests were tightly constrained, permitting employers to collect medical information relevant only to the particular malady that created the need for leave. By contrast, employees seeking accommodation for a disability under the ADA were required to enter an interactive process where they were free to volunteer information. Under the new regulations, employers may use information gathered in ADA accommodation discussions or medical certification requests and workers’ compensation proceedings, as well as the FMLA certifications, to determine whether leave qualifies for FMLA designation. If the employer can make the www.theHRSpecialist.com

What is a serious health condition? Under the new regulations, a “serious health condition” means an illness, injury impairment or physical or mental condition that involves one of the following: Hospital care: Inpatient (overnight) care in a hospital, hospice or residential care facility, including any period of incapacity or treatment connected to inpatient care. Absence plus treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following: • Two or more visits to a health care provider. The first visit must occur within seven days of the first day of the incapacity, and both visits must take place within 30 days. • A regimen of continuing treatment, with the first visit taking place within seven days of the onset of the incapacity. Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care. Chronic conditions requiring treatments: A chronic condition that extends over a period of time and requires periodic treatments. “Periodic visits” are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic rather than continuous. Examples include asthma, epilepsy or diabetes. Permanent/long-term conditions requiring supervision: A permanent or longterm incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of (but need not be receiving active treatment by) a health care provider. Examples include Alzheimer’s, a severe stroke or the terminal stages of a disease. Multiple treatments (nonchronic conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical treatment, such as cancer (chemotherapy, etc.), severe arthritis (physical therapy) and kidney disease (dialysis).

determination from information garnered during ADA accommodation discussions, there is no need to seek FMLA medical certification as well. Employers may require a new certification at the beginning of each FMLA year. This is true regardless of when the leave began. Employers may request recertification every six months for employees with chronic conditions. If the employee’s condition changes within six months, the employer may request a recertification. Unlike initial certifications, employers may not request a second or third opinion on a recertification. HOW TO COMPLY Employers should update their FMLA policies and procedures to reflect the new regulations. In fact, the new regulations give employers some important

tools to reduce FMLA abuse. If the employer finds an employee’s medical certification insufficient, the employer must specify in writing what information is lacking and give the employee seven calendar days to cure the deficiency. Under the old regulations, when employers substituted paid leave for unpaid FMLA leave, employees could provide just the medical certification required by the employer’s sick leave plan (if any). The new regulations give employers the right to request FMLA medical certification anytime FMLA leave is requested, whether paid leave is substituted or not. Coming next month: Coming in October:

Mandated benefits Supporting military employees

August 2009 • Illinois Employment Law

The Mailbag

by David B. Ritter, Esq., Neal Gerber Eisenberg LLP, Chicago

Can we require riffed employees to sign a release before they receive severance pay? Under our company policy, employees who are terminated because of a reduction in force are entitled to severance pay. Can we require them to execute a release in order to receive severance pay? Yes, if the policy specifically states that employees must execute a release in order to receive severance pay, then you can—and should—require employees to do so. If your policy does not expressly require a release or is silent on the issue, then any release you obtain may be unenforceable for lack of consideration. In that case, in order to obtain an enforceable release, you’d have to offer something in addition to severance pay to which they are already entitled under your company’s policy.

Q A

How much access must we grant when an employee asks to see his personnel file? One of our employees has asked to review his personnel file. Must we grant his request? An employee’s right to access his or her personnel file is governed by state law, which varies among the states. Under Illinois law, employers generally must allow an employee to inspect certain personnel documents within seven days of a request, subject to rules and conditions. However, Illinois employers may require an employee to submit the request in writing before granting such access. They can also limit an employee’s access to a maximum of two times per calendar year.

Q A

Can we deduct from his paycheck? Employee ruined a company-issued laptop One of our employees was issued a company laptop and later corrupted it by downloading games and other nonbusiness software. Can we recover the value of the damaged property from this employee’s next paycheck?

An employer’s ability to make deductions from an employee’s wages is governed by state law (which varies from state to state) and often depends on the reason for the deduction and whether the employer has obtained the employee’s written consent. Under Illinois law, employers cannot deduct for financial losses due to property damage, unless employees freely give written consent.

How far can our company go in prohibiting employees from smoking? We are committed to providing a healthy and safe environment for our workforce. To that end, we strictly prohibit smoking on company property. Can we also prohibit employees from smoking during their lunch breaks and outside of work? You can prohibit employees from smoking on company property at all times, even during breaks. However, Illinois law prohibits employers from discriminating against employees who use lawful products during nonwork hours. Lawful products include, but are not limited to, tobacco, alcohol, over-the-counter or legally prescribed drugs and food. This law applies to all employers, except nonprofit organizations dedicated to discouraging the general public’s use of a lawful product. This law also does not apply when using a lawful product impairs an employee’s ability to perform his or her job duties. Therefore, unless one of these exceptions applies, you cannot prohibit your employees from smoking on their personal time.

Q A

David B. Ritter is an attorney with the Employment Practice Group at Neal Gerber Eisenberg LLP (www.ngelaw.com) in the firm’s Chicago office. He represents management in all areas of labor and employment law. Contact him at: dritter@ngelaw.com, (312) 269-8444. To submit your question to Illinois Employment Law, e-mail it to HRILeditor@NIBM.net or fax it to (703) 905-8042.

FYI Debate heats up over health reform, taxing benefits

Survey: New COBRA subsidy will increase costs

Congress and the Obama administration began laying the groundwork last month for an overhaul of the U.S. health care system. The big question: How to pay for it? Many Democrats want the value of health insurance to be counted as income on employees’ paychecks (thus taxed). This, however, would run up against President Obama’s campaign pledge not to raise taxes on the middle class. One compromise proposal: tax the health premiums of people who earn above a certain amount, say $100,000 for individuals and $200,000 for families.

Six of 10 employers anticipate that their health care costs will increase as a result of the new federal COBRA subsidy law, says an Aon Consulting survey. Among those, 40% predict cost increases between 1% and 5%; another 40% expect costs will jump between 6% and 10%; 12% foresee increases of 11% to 15%; and 8% expect a jump of 16% or greater. Reason: While the government will reimburse employers for 65% of COBRA premiums, the new law paves the way for more COBRA enrollees and higher administrative costs.

Illinois Employment Law • August 2009