AMARILLO, TX – These are strange times. I was hoping that 2021 would be calmer. Unfortunately, it has not started out that way. Notwithstanding all of the uncertainties we are facing, there are some absolutes that we can count on:

• The U.S. population will continue to grow.
• The 78 million Baby Boomers will continue to age.
• The demand for DME will increase.
• Employment issues will continue to be an important part of the DME supplier’s business.

This article discusses some of the most important elements of the FLSA, FMLA, ADA and state workers’ compensation logs.

Fair Labor Standards Act (FLSA)
There is a surge in FLSA complaints to the Department of Labor (“DOL”). The most common culprits are cases involving misclassification of employees.

There are two key exemption concepts for most employers: (i) whether the exempt employee is paid a salary and (ii) whether the salaried/exempt employee is properly classified as exempt.

When a DME supplier becomes aware of an FLSA misclassification complaint, it is important for the supplier to take the complaint seriously and seek advice of counsel on classification questions.

It is critical that the employer deal respectfully with the DOL. It is also important that the employer update job descriptions and employee handbook provisions so that job duties are clearly described. And the employer must ask itself whether the duties are exempt.

The employer needs to periodically examine its employee classifications and to consider modifications of duties. For example,

• Employees may be given additional responsibilities.
• The employer should include the supervisor in the hiring/firing/disciplinary process.
• The employer needs to ensure that exempt positions are significant to the employer’s operations.
• The employer should ensure that the salary basis for exempt positions is strong.

Tips for ADA/FMLA/Workers’ Compensation

• The employer needs to update job duties to make them more thorough. This can include hours sitting in chairs, lifting and bending, making phone calls, hours on the employees’ feet, computer skills and customer service skills.
• It is important that the employer interact regularly with employees so as to reduce the risk of a minor problem morphing into a major problem.
• The employer should be aware of competing obligations and risks: (i) workers compensation restrictions, (ii) ADA accommodation concerns, (iii) FMLA return-to-equivalent employee concerns, and (iv) retaliation liability.

Employee Leave
Employer-provided leave usually includes clearly delineated paid time off (“PTO”). Common mistakes include vague/ambiguous policies, uneven enforcement of rules, and failure to follow the employer’s own policies. Tips for policies on PTO include:

• The employer should define exactly how much time an employee receives and whether the time carries over if unused.
• The employer should define if an employee loses any unused leave if he is terminated by the employer or quits without sufficient notice.
• The employer should define whether the employee is paid for unused PTO at the end of the year … or at the end of employment.
• The employer should define what its discretion is in denying leave requests if so warranted by business needs.

The “Bermuda Triangle” of Employee Leave Consists of the FMLA ADA and Workers Compensation Laws

• The FMLA provides unpaid leave for serious illnesses or major life events for the employee or close family members. The FMLA applies if an employer employs 50 or more employees within 75 miles. In order to be FMLA-eligible the employee must be with the employer for at least 12 months and 1,250 hours.
• The ADA prohibits discrimination against a qualified individual with a disability who, with or without reasonable accommodation, can perform essential functions of the job. The ADA applies if an employer has 15 or more employees.
• Workers compensation laws allow for medical reimbursement and lost wages, among other benefits for work-related injuries. These laws are state specific and apply to most employers for any work-related injury.

The employer must evaluate each leave situation under each law separately for (i) leave rights; (ii) reinstatement rights; (iii) medical documentation requirements; (iv) fitness to return to duty; and (v) benefits upon leave.

ADA
The ADA makes it unlawful to discriminate in all employment practices such as recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits, and other employment-related activities. The ADA prohibits an employer from retaliating against an employee for asserting his rights under the ADA. The ADA protects qualified individuals with disabilities from employment discrimination.

Under the ADA, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limited impairment, and individuals who are regarded as disabled. A “substantial impairment” is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, or working.

An individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation in order to be protected by the ADA. This means that the applicant must:

• Satisfy job requirements or educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and
• Be able to perform those tasks that are essential, with or without reasonable accommodation.

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified employee with a disability to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reason accommodation might include: (i) acquiring or modifying equipment or devices; (ii) job restructuring; (iii) part-time or modified work schedules; (iv) adjustments or modifications to examinations or training policies, and (v) making the work place more accessible. It is a violation of the ADA to fail to provide reasonable accommodation to known physical or mental limitations of a qualified individual with a disability unless to do so would impose an undue hardship on the employer.

Frequently, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is obvious. The employee may suggest a reasonable accommodation based upon his life or work experience. Possible reasonable accommodations might include lighting, seating, keyboards, leave, hours, seating/standing, flexible scheduling, breaks, start times, and naps.

When the appropriate accommodation is not readily apparent, the employer must make a reasonable effort to identify an accommodation. The best way to accomplish this is to consult informally with the employee about potential accommodations that would enable the individual to perform the essential functions of the job. The employer is not obligated to provide the exact accommodation requested by the employee. Rather, the employer must provide an appropriate accommodation.

Problems arise when:

• The employer fails to communicate, in an interactive fashion, with the employee.
• The employer fails to document its efforts to work with the employee.
• The employer has failed to adequately document the essential functions of the employee’s position.

Tips for dealing with most disability situations include:

• In determining whether an applicant is qualified for a position, the employee should consider whether the applicant is able to perform the job at the time. The employer cannot consider that the applicant’s abilities may change or decline due to his disability.
• Unless the employer has knowledge of impairment, the employer should treat the employee the same as other employees.
• On the other hand, if the employer has actual knowledge of impairment or can discern disability by observation, the employer should engage in interactive discussion with the employee regarding reasonable accommodations.
• The employer should create job descriptions outlining essential job functions.
• If an employee comes forward with a disability that may post a direct threat to the work place, then the employee should ask for input from the employee. The employer should further consider giving the employee paid leave while the employer determines whether there is a direct threat and analyze the job duties to determine if a reasonable accommodation can be made.
• The employer should consider allowing the employee a part-time or modified schedule as a reasonable accommodation unless doing so would be an undue hardship.
• The employer should keep the employee’s medical file separate from the employee’s regular personal file.

AAHOMECARE’S EDUCATIONAL WEBINAR

How to Properly Utilize Telehealth to Provide Cost-Effective Services

Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato, P.C.

Tuesday, January 19, 2021

1:30-2:30 p.m. CENTRAL TIME

Over the past several years, telehealth has methodically become a part of health care. The pandemic changed this. The pandemic has shoved telehealth to the forefront and the law is quickly adapting to give telehealth a much more prominent place in health care. Many restrictions have been lifted during the pandemic…and a number of these restrictions will remain lifted after the pandemic. This program will discuss federal and state laws governing telehealth during the pandemic and the expected changes in the law after the pandemic is over. Specifically for the DME supplier, this program will discuss whether Medicare will pay the supplier for a product when (i) the physician’s order results from a telehealth encounter, (ii) the patient lives in a non-rural area, and (iii) the patient has the telehealth encounter from his home. The program will then change directions and discuss how the DME supplier can utilize video technology to (i) provide required services to patients, (ii) provide “value-added” services to patients, and (iii) educate patients, caregivers and physicians regarding the array of products and services offered by the supplier.

Register for How to Properly Utilize Telehealth to Provide Cost-Effective Services on Tuesday, January 19, 2021, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq. of Brown & Fortunato, PC.

Members: $99
Non-Members: $129

2021 Look Ahead for DME Suppliers

Presented by: Andrea Stark, MiraVista, LLC and Jeffrey S. Baird, Esq., Brown & Fortunato, P.C.

Moderated by: Liz Beaulieu, HME News

Thursday, February 4, 2021

1:00 p.m. EST

Pick your metaphor: tornado, flood, forest fire. No one is shedding tears at the passing of 2020.

There is, however, a silver-lining. A new year is an opportunity for a fresh start with the experience and wisdom to make the most of it. Hello, 2021! To help DME suppliers thrive in the brave new world, Andrea Stark (MiraVista), Jeff Baird (Brown & Fortunato), and Moderator Liz Beaulieu (HME News) are hosting the 11th annual 2021 Look Ahead for DME Suppliers on Thursday, February 4, 2021, at 1:00 PM (ET).

In this session, the trio spotlights:

• Provider Relief Fund reporting deadlines and potential liabilities.
• New risks (and opportunities) related to the Stark anti-kickback laws.
• Audit developments, including pandemic respiratory claims and the return of TPE.
• Exit strategies for the end of the public health emergency.
• The future of telehealth.
• Anticipated changes to ventilator coverage and reimbursement rates.
• The 2021 competition’s impact on the next round of bidding.
• … and much more!

After the presentation, attendees have open access to the presenters’ expertise during the live Q&A session. See you there!

Register for the event.

Jeffrey S. Baird, JD, is Chairman of the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].