We offer up-to-date legal information and advice, free to clients quarterly in the form of a newsletter. Some excerpts from recent newsletters are available below and through the links to the right, listed by publication month and year. The information presented here is not, nor is it intended to be, legal advice. You should consult an attorney for legal advice regarding your individual situation. We invite you to contact us and welcome your calls, letters, and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. Please feel free to contact us with any questions.

Excerpts from March 2013 “An Ounce of Prevention” Newsletter

New FMLA Regulations for Military Family Leave

New FMLA regulations went into effect on March 8, 2013. If you have not yet updated your FMLA policy and posters to reflect this change, please be sure to make this a high priority.

More information on the changes can be found here:www.dol.gov/WHD/fmla/2013rule/.

Vegans Protected From Religious Discrimination?

In a recent Ohio federal decision, the court allowed a nurse to proceed against her employer for religious discrimination when it terminated her for refusing to get a flu shot because she is a vegan. Vegans do not ingest any animal or animal by-products; the flu shot contains egg proteins because the virus is grown in eggs.

Perhaps somewhat surprisingly, the law prohibiting religious discrimination does not just protect religious beliefs. Instead, 29 C.F.R. 1605.1 states “whether or not a practice or belief is religious is not an issue…the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.”

Ohio Company Sanctioned For Failing to Preserve Evidence

Last month, JP Morgan Chase was sanctioned by a U.S. District Court in Ohio. The EEOC sued JP Morgan Chase, alleging gender discrimination. During discovery, the EEOC asked JP Morgan Chase for several years of employee login data. The bank failed to produce some of the data, claiming it was destroyed as the result of routine purging of electronic records. The court ruled that because the bank was well-aware of the relevance of the login data to the ongoing litigation, the “failure to establish a litigation hold is inexcusable.”

When a party to litigation is found to have destroyed evidence (whether intentional or not), the courts will consider a wide range of remedies. These may include payment of the other side’s legal fees and expenses related to the discovery dispute, instructing the jury that they should presume the destroyed evidence was favorable to the other side (an “adverse inference instruction”), and in severe cases, ruling in favor of the other party.

NLRB Decisions Invalidated

For the past year, we have been advising clients about a growing number of cases in which the National Labor Relations Board (NLRB) found violations of the National Labor Relations Act (NLRA) by non-union employers. On January 25, 2013, the U.S. Court of Appeals for the District of Columbia essentially invalidated all those decisions when it ruled that the President illegally appointed members to the Board. Noel Canning v. NLRB. Without these members on the Board, the Board lacked a quorum.

Reducing BWC Medical Costs

In workers’ compensation claims, doctors are supposed to request approval for treatment before the treatment occurs. However, before the enactment of O.A.C. 4123-6-16.3 there was no real penalty for failing to request treatment up front. As of January 1, 2013, that has changed. Under the new rule, a medical provider will only be reimbursed 75% of the applicable fee for treatment approved retroactively.

In addition to looking for reductions for retroactive treatment, if you are a state-funded employer, be sure to carefully review all medical payments made in your claims. In three claims recently, we have uncovered payments that should not have been made. It is our experience that MCOs are not properly scrutinizing medical bills.

Kasich’s Budget Includes New Sales Tax on Legal Fees

In Governor Kasich’s proposed budget bill, services–including legal fees–would be subject to sales tax. The Ohio State Bar Association has taken a public stand against the budget, and we hope your business will help defeat this bill by reaching out to your elected representatives.