– Page 3 of 4

Does an Employer Have to Allow Teleworking for Employees Who Are At Risk for COVID-19?

Written by PJC Law on May 1, 2020. Posted in Civil Litigation, Coronavirus, Employment Law.

In some situations, yes. An employer may have to allow an employee to telework instead of reporting back to the office if the employee can show that a disability requires teleworking as a reasonable accommodation.

Whether teleworking is considered to be a reasonable accommodation depends on the nature of the disability and the specific job duties an employee has. To date, the Equal Employment Opportunity Commission (EEOC) has not provided detailed guidance on when employers are required to allow an employee to telework in light of the COVID-19 pandemic. The EEOC has noted that what constitutes a reasonable accommodation is fact specific to each employee, and that allowing an employee to telework during the coronavirus crisis does not necessarily mean that teleworking must continue once the crisis has ended. But there will likely be situations where teleworking does constitute a reasonable accommodation for an employee who may be especially susceptible to COVID-19. If it does, and the employer doesn’t allow it, then the employer may be held accountable.

In recent months, millions of American workers have been allowed to work from home (“teleworking”) in an effort to prevent the transmission of the coronavirus. Companies, however, will slowly begin recalling employees to job sites and offices as the COVID-19 pandemic winds down. For Americans with serious underlying health conditions, returning to work can be extremely dangerous as new cases of coronavirus are still being reported every day. Employers who require these vulnerable employees to return to the office may be violating the Americans with Disabilities Act (ADA).

What is the Americans with Disabilities Act?

The ADA is a federal law which prohibits employers from discriminating against workers who have a covered physical or mental disability. Under the ADA, an employer cannot layoff or terminate an employee due to a disability. An employer also cannot refuse to hire or promote someone due to a disability. If an employer unlawfully discriminates, the ADA provides the disabled employee with legal options to stop the discrimination and to force the employer to pay for lost income and other damages.

What disabilities are protected by the ADA?

A covered disability is defined as any health condition which causes an impairment that substantially limits at least one major life activity. In the context of the COVID-19 pandemic, we know that there are some health conditions that make an individual more susceptible and vulnerable to the coronavirus. According to the CDC, early reports indicate that more than 70% of patients admitted to the hospital due to the coronavirus had a serious underlying health condition.

The most common underlying health conditions seen in patients affected by the coronavirus have been diabetes, chronic lung disease (such as COPD, asthma, and emphysema), heart disease, kidney disease, liver disease, and those with compromised immune systems. Employees who have one of these serious health conditions are likely protected by the ADA. It should be noted that pregnant women are also at a greater risk of developing serious complications due to the coronavirus and may be protected under other federal and state laws.

Does my employer have to allow me to telework if I want to?

The ADA requires employers to provide “reasonable accommodation” to employees with a covered disability. The COVID-19 pandemic forced many employers to allow their employees to telework from home, and during this process, many employees discovered that they can do their jobs from home just as well as in the office. It is therefore likely that teleworking – for many employees with the health conditions discussed above – will be considered a reasonable accommodation. For this reason, employers who do not allow such employees to continue teleworking are likely in violation of the ADA.

If an employer demotes, layoffs, or otherwise terminates an employee with a serious health condition for not returning to the office, the employer runs the risk of being sued by the employee for violating the employee’s rights under the ADA.

What if I’m disabled and my employer doesn’t provide reasonable accommodations for me?

You may be able to file a lawsuit and recover significant monetary damages. Of course, the first step in pursuing an employer under the ADA is to contact an experienced employment law attorney. An attorney can determine if an employee has a disability covered by the ADA and whether teleworking would likely constitute a reasonable accommodation for the particular employee. An attorney can also help an employee weigh the pros and cons of bringing a lawsuit against the employer.

Before a lawsuit can be filed in court, an employee is required to file a charge of discrimination with the EEOC. The EEOC is federal agency that enforces employment discrimination laws. It is important to note that federal law imposes a strict deadline on when a charge of discrimination must be filed. Therefore, an employee who has been discriminated against should contact an employment law attorney as soon as possible. In some cases, the EEOC will litigate the case against the employer itself. In most cases, the EEOC will issue a right to sue letter after investigating the claim. Once an employee receives the right to sue letter, the employee may file a lawsuit in federal court alleging a violation of the ADA.

Of course, many ADA claims are successfully resolved before any lawsuit is filed. Contact our firm now if you think you may have a disability that requires teleworking during the COVID-19 pandemic. We will let you know if we can help.

I-9 Immigration Audits Are On the Rise and May Lead to Criminal Prosecution

Written by PJC Law on April 24, 2020. Posted in Criminal Defense, Federal Crimes.

U.S. Immigration and Customs Enforcement (ICE) has ramped up the number of Form I-9 inspections in recent years, indicating that employee verification has become a top priority for ICE. While the increase in audits has impacted numerous industries, our firm has seen a particular interest by ICE in auditing restaurants, construction companies, and nail salons. In addition to employers, ICE has also targeted individual executives and managers who made hiring decisions.

Employers who fail I-9 inspections can face stiff fines, forfeiture of assets, and even prison. It is for this reason that employers should consider hiring a law firm when ICE conducts a Form I-9 Inspection.

What is the Form I-9?

Federal law requires employers to verify the identity and employment eligibility of their employees. The Employment Eligibility Verification Form I-9 is the means by which employers are required to document this verification. Employers are required to maintain the original Form I-9 for all current employees. Employers must also retain the original I-9 Form for all former employers for at least three years from the date of hire or for one year after the employee is no longer employed (whichever is longer).

The purpose of I-9 inspections is to deter businesses from illegally employing individuals. As discussed below, the Form I-9 inspection program is one of the most powerful tools the government uses to ensure that companies are properly following employment laws.

What happens during a Form I-9 inspection?

A Form I-9 inspection will typically begin with ICE serving a Notice of Inspection on an employer. The notice informs the employer that ICE will be conducting a thorough review of the employer’s hiring records. When an employer receives this notice, the employer is required to produce the I-9 forms within three days. ICE will often also request other documents including a list of current employees, a copy of the payroll, and any business licenses.

ICE does not need a search warrant or the consent of the employer to obtain the I-9 forms. Compliance is mandatory, and if an employer refuses to comply, he or she will likely face penalties. Once the documents are delivered to government agents, ICE auditors will conduct an inspection to determine if the employer has complied with federal employment laws.

What are the possible penalties during a Form I-9 inspection?

If ICE finds a violation during an I-9 inspection, it may impose penalties. For technical violations, ICE will require the employer to make corrections within 10 days. If a substantive violation is found, ICE will either levy a fine or issue a warning to the employer. ICE will also require the employer to correct the violation.

Penalties for each substantive violation found by ICE can be more than $2,000. If ICE finds that an employer knowingly hired unauthorized workers, it can impose penalties of more than $20,000 for each violation. When determining the amount of a penalty to impose, ICE will consider the size of the business, seriousness of the violation, history of violations, whether unauthorized employees were involved, and good faith efforts made by the employer.

In addition to monetary penalties, employers need to be aware that I-9 inspections can lead to criminal prosecution if the audits show that the employer knowingly hired unauthorized employees.

How can a lawyer assist in a I-9 inspection?

Dealing with any government agency is a stressful and often risky endeavor. This is especially true when the consequences can be a significant fine or jail time. A lawyer experienced in handling I-9 inspections and federal criminal investigations can deal directly with the ICE agent in charge of the inspection. This means that the lawyer will answer any questions that ICE may have about the business instead of the employer.

A lawyer will also ensure that the employer has provided all of the necessary documents to the ICE agent or auditor handling the inspection. If a violation is found by ICE, an attorney can argue that no fine should be imposed or explain why a lower fine should be imposed than the one contemplated by ICE. During this process, a lawyer can also help to ensure that a simple I-9 investigation does not evolve into a federal criminal investigation.

Nursing Homes Not Following COVID-19 Guidelines? Whistleblowers May Be Able to Earn a Reward

Written by PJC Law on April 23, 2020. Posted in Coronavirus, Whistleblowers.

Federal laws and regulations require nursing homes and assisted living facilities to take special precautions to protect residents against the coronavirus pandemic. When nursing homes fail to follow these safeguards, they are putting their residents at a greater risk of harm, and in many cases, defrauding Medicare out of money by falsely claiming that they have complied with federal laws and regulations.

Individuals who are aware of such fraud can file a lawsuit under the False Claims Act on behalf of the United States. If the lawsuit is successful, a whistleblower can be entitled to a significant amount of money. More importantly, the whistleblower can put an end to a nursing home’s dangerous practices and punish a nursing home company for its corporate greed.

Who can be a whistleblower?

Anyone who is aware of fraud being committed by a nursing home or assisted living facility can report it as a whistleblower under the False Claims Act. Typically, a whistleblower will be an employee of the nursing home such as a doctor, nurse, or someone who works in the billing department. A whistleblower can also be a family member who has become aware of unsafe practices at a particular facility. The important thing is that the individual has specific information concerning the fraud.

How do I know if a nursing home is defrauding Medicare?

Medicare pays for the medical care of most nursing home residents due to their age. When a nursing home company seeks reimbursement from Medicare for a resident’s care, it has to certify that it complied with all federal laws and regulations. If the nursing home did not follow all of the laws and regulations but certified to Medicare that it did, it has committed fraud against the government.

One law passed by Congress is the Nursing Home Reform Act. This law requires nursing homes to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.” In the wake of the coronavirus pandemic, the federal government has also implemented standards for nursing homes to meet in an effort to protect residents.

One important directive from the federal government is for nursing homes to restrict visitation of all visitors and non-essential health care personnel. Directives also include, but are not limited to, using face masks and gloves, canceling group dining and activities, isolating residents with coronavirus symptoms, screening residents and staff for respiratory symptoms, instructing visitors on proper handwashing and to avoid touching surfaces, and closely monitoring staff members who work at multiple facilities.

When the care provided by nursing homes is grossly substandard due to the failure to meet these directives, the nursing home likely violated the False Claims Act by falsely certifying to Medicare that it had provided adequate care.

How do I report a nursing home for coronavirus violations?

Reporting fraud as a whistleblower is a step-by-step process. If an individual is aware that a nursing home is not providing its residents with adequate protection against COVID-19, he or she can file a lawsuit against the nursing home under the False Claims Act. This type of lawsuit is filed by a whistleblower but is brought on behalf of the United States. The first step in filing a lawsuit is to contact an attorney that is experienced in suing nursing homes under the False Claims Act.

A False Claims Act attorney will want to know the details of the nursing home’s practices which are putting residents at risk. The attorney will then put together a case and present the case to federal prosecutors before filing a lawsuit in federal court. The lawsuit is filed under seal which gives the government time to investigate the nursing home’s fraud. If the government believes that the case merits prosecution, it will intervene in the case and take over litigating the case.

How much can a whistleblower earn?

If the nursing home agrees to settle a False Claims Act lawsuit, or if a jury finds against the nursing home at a trial, the whistleblower is generally entitled to 15 to 30 percent of the amount recovered by the Government. The exact amount depends on whether the government intervened in the case as well as the extent of the whistleblower’s assistance. In some cases, this means that a whistleblower can earn millions of dollars for simply filing a lawsuit and alerting the government to a nursing home’s dangerous practices.

Who Makes the Decision on COVID-19 Restrictions

The Decision to Remove COVID-19 Restrictions

Written by PJC Law on April 13, 2020. Posted in TV Appearances.

CNN recently contacted Page to discuss President Trump’s comments on removing restrictions and reopening the United States economy in the wake of the Covid-19 pandemic shutdown.

Page was asked if the decision to reopen the economy and ease the current restrictions is even President Trump’s decision to make. Page says that it is not, and explains that “In the United States, each governor will have authority to determine what happens in that particular state as far as the restrictions that had been put in place. The president, being in charge of the federal government, certainly does have some responsibilities. He can enact a travel ban, as he’s done. He can control the borders, as he’s done. But as far as specific state restrictions, if one governor wants to be more restrictive than another, the president cannot come in and override that. It is a local decision.”

When asked if it is correct that the United States Constitution and the interpretation from the U.S. Supreme Court does not give President Trump the power to override the state governors’ decisions, Page agrees and further explains how we should “understand that we’ve not been in a situation like this before. So if we have a governor enact a particular restriction that is more restrictive than the president wants, of course, the president can suggest that the governor not do that, and there are certain governors around the country who will follow the president’s suggestion whatever he wants to do. But as far as coming in and telling a specific governor, “You’ve got to reopen your schools. You have to allow businesses to reopen,” a president can only do that if the state restriction interferes with interstate commerce. That will probably be the federal government’s argument, say, “Look, I understand what you wanna do in New York, but it’s affecting the rest of the country.” We’ve never seen this play out in the courts before, but if you look at the constitution, the president’s responsibilities and authority ends with the federal government. He cannot control the individual state as far as specific local restrictions.”

TRANSCRIPTION:

Victor: Now, as we saw that, in Kansas, the President is considering a broader question flexing about the authority about reopening the economy. He says that he is looking at a date, but nothing will happen until he’s certain that Americans are healthy again. So let’s bring in criminal defense and constitutional attorney, Page Pate. Page, good morning to you. Thanks for being with us on short notice.

Page: Absolutely. Good morning.

Victor: Folks at home don’t know this, but if you could join us just a couple of hours ago to ask you about this constitutional question. The President says that it is the hardest decision that he will have to make. Is it his to make?

Page: No, it’s not, Victor. In the United States, each governor will have authority to determine what happens in that particular state as far as the restrictions that had been put in place. The president, being in charge of the federal government, certainly does have some responsibilities. He can enact a travel ban, as he’s done. He can control the borders, as he’s done. But as far as specific state restrictions, if one governor wants to be more restrictive than another, the president cannot come in and override that. It is a local decision.

Victor: So when he says, and that’s the first section of it, that the President says this is a decision he will have to make, then he says that the governors can do some things, but he can override them. You’re telling us that the constitution and the interpretation from the U.S. Supreme Court gives him no authority to override the decision of these governors.

Page: That’s right, Victor. I mean, let’s understand that we’ve not been in a situation like this before. So if we have a governor enact a particular restriction that is more restrictive than the president wants, of course, the president can suggest that the governor not do that, and there are certain governors around the country who will follow the president’s suggestion whatever he wants to do. But as far as coming in and telling a specific governor, “You’ve got to reopen your schools. You have to allow businesses to reopen,” a president can only do that if the state restriction interferes with interstate commerce. That will probably be the federal government’s argument, say, “Look, I understand what you wanna do in New York, but it’s affecting the rest of the country.” We’ve never seen this play out in the courts before, but if you look at the constitution, the president’s responsibilities and authority ends with the federal government. He cannot control the individual state as far as specific local restrictions.

Victor: Page Pate, I appreciate you answering the early call to offer some clarity on this topic. Thanks so much for being with us.

Page: Thank you, Victor.

Can Nursing Homes Be Held Legally Responsible for Coronavirus Deaths?

Written by PJC Law on April 6, 2020. Posted in Personal Injury.

Nursing homes and other assisted living facilities may be held legally responsible for a resident’s death if the facility failed to take the proper precautions to prevent the spread of the Coronavirus (COVID-19), or failed to properly treat a patient who was infected by it.

Consider these suggestions from the New York Times on how to protect a loved one who is in a nursing home or assisted care facility.

The coronavirus pandemic has affected virtually every American in some way, but for the elderly, it is particularly dangerous. For many nursing homes residents, the coronavirus can be lethal. It is therefore critical that nursing homes take the proper precautions to ensure that residents are not exposed to the virus.

As the pandemic in America worsens, family members of residents at nursing homes and long-term care facilities are complaining that these facilities are running low or are out of basic protective measures such as hand soap and face masks. In other cases, these facilities lack an adequate staff to care for its residents. It is becoming clear that many nursing homes are unprepared to adequately protect its residents despite clear federal and state regulations relating to infection control.

The federal government has implemented strict and extensive standards for nursing homes. One of the most important directives is that facilities restrict visitation of all visitors and non-essential health care personnel. The hope is that drastically limiting the number of visitors will decrease the prevalence of infections in nursing homes. Under federal guidelines, nursing homes should also implement these safeguards to reduce the risk of infection:

Cancel group dinning and activities.
Screen residents and staff for respiratory symptoms.
If an employee has signs of infection (e., shortness of breath, coughing, sore throat), the employee should be isolated at home.
If a resident has signs of an infection, the resident should be isolated within the facility.
For people allowed into the nursing home, they should be instructed on hand washing, avoid touching surfaces, and use personal protective equipment (face masks, isolation gowns, and gloves).
Staff members that work at multiple facilities should be identified and screened for infection.
Vendors should have supplies dropped off at a designated location.
All individuals who enter a nursing home should be advised to monitor themselves for signs of infection for at least 14 days. If they notice signs of infection, they should immediately let the nursing home know.

Nursing homes are also advised to take general precautions established by CDC for all healthcare settings, which include:

Cancel elective procedures.
Use telemedicine when possible.
Limit points of entry.
Place residents with suspected or confirmed COVID-19 in private rooms and bathrooms.
Limit the number of staff providing care to patients with suspected or confirmed COVID-19 as much as possible.

If a nursing home resident dies of the coronavirus, our law firm can conduct an investigation to determine if the resident became infected due to negligence of the nursing home’s owners or staff. We will look to determine if the nursing home followed the proper protocols, and kept a full record of the steps it took to limit and prevent the spread of infection. If the records show that the owners and staff of a nursing home facility failed to follow established guidelines and standards, the resident’s family members have the right to file a lawsuit against the owners in court.