Kendra Carpenter

Thursday, 21 October 2004 07:21

Disease discrimination

Every year, more than 1.4 million Americans are diagnosed with cancer. Cancer does not discriminate by race, income, age or gender, but thankfully, researchers have made great strides and more people than ever survive.

But survival can present new challenges, especially in the work place. While cancer does not discriminate, some employers do -- even unintentionally. Common claims of discrimination include refusal to hire, demotion, failure to promote, denial of time off for medical appointments, suggesting the employee would be better off not working and denial of health insurance.

Employers may worry about how chemotherapy and other treatment, ongoing medical monitoring or residual limitations may affect job performance. While these are legitimate concerns, federal and state antidiscrimination laws protect both the patient and survivor. In addition to the Americans with Disabilities Act, Ohio employers with four or more employees must comply with the fair employment practice provisions of Chapter 4112 of the Ohio Revised Code.

Cancer has been generally recognized as a protected disability under state and federal law. However, Ohio has specifically listed cancer as an impairment, which can be considered a disability.

State and federal laws require an employer to provide a reasonable accommodation to a qualified individual with a disability where it will enable the employee to perform the essential functions of the job. This may include permitting a modified work schedule to allow the employee to attend medical appointments or purchasing special equipment to assist the employee in doing his or her job.

The exceptions to these laws are few.

First, a qualified individual must be able to perform the essential functions of the job with or without accommodation, and cannot pose a direct threat to his or her safety or the safety of others. In addition, an employer does not have to make a reasonable accommodation if it would impose undue hardship.

In determining what constitutes an undue hardship, the Civil Rights Commission considers the business necessity, the size of the business and whether the cost of the accommodation can be included in planned remodeling or maintenance.

In addition to antidiscrimination laws, businesses that employ more than 50 employees must comply with the Family and Medical Leave Act, which permits employees with a "serious" medical condition to take unpaid leave for up to 12 weeks.

To be eligible, the employee must have worked for the employer for at least 12 months and 1,250 hours during the 12 months prior to the leave. An employee does not get credit for paid sick leaves, vacations or holidays.

Finally, employees may have legal remedies for insurance discrimination. The Comprehensive Omnibus Budget Reconciliation Act (COBRA) is a federal law that requires an employer with more than 20 workers to provide a continuation of group health coverage -- often at the employees' expense -- to employees who may become ineligible for regular benefits.

The Employee Retirement and Income Security Act (ERISA) prohibits an employer from firing a worker due to the worker's history of cancer or that of his or her spouse or child. ERISA also prohibits an employer from encouraging a worker with a history of cancer to take disability retirement.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) permits cancer victims to change jobs without losing health insurance coverage, so long as they were insured for the previous 12 months. it also prevents group health plans from denying coverage based on an employee's medical or claim history.

An employer may deny coverage under the ADA if it can show coverage would create an undue hardship upon the plan or the business. The employer must justify the denial by using insurance statistics and show an "actual substantial increase" in costs.

For example, an employer may deny coverage to an employee with a history of cancer if it can show the history would drive up the cost of premiums to the extent that the business could no longer afford to carry the group policy. However, denying insurance under such circumstances obviates the likelihood of a lawsuit and should be undertaken with great caution.

Kendra L. Carpenter is an associate in the Columbus office of Vorys, Sater, Seymour and Pease LLP where she practices in the litigation group. Reach her at (614) 464.6467 or www.vssp.com.

Monday, 02 February 2004 06:26

Site success

Despite the continuing rise in consumers' online spending, many of today's Web sites might be considered failures.

Why? Because e-sales are just one measure of Web site success.

A truly successful Web site is a critical component of a company's overall marketing strategy. More than stand-alone channels through which customers download information or add items to a virtual shopping cart, successful Web sites are powerful marketing and branding tools that extend a company's image and presence to an online community. They reinforce key messages and business objectives, and they address customers' needs, regardless of where customers are in the sales cycle.

There are several reasons why so many companies fail to realize the full potential of their Web activities. Company executives may not have a clear vision of what they want their Web sites to accomplish.

Is a Web site's purpose, for example, to generate online sales? Capture potential consumers' interest? Push marketing materials into the online space? Or pull customer profile information that can help power a more effective marketing engine?

Without a clear answer, companies continually revise their Web sites on an ad-hoc basis. The result is an inconsistent, unsatisfying Web experience that tries to accomplish too much.

There are also Web sites that try to do too little. Again, the absence of a clear Web strategy is to blame. If company executives do not appreciate the fact that their corporate Web site is a marketing channel, they are less likely to approve necessary Web site spending or hold the development team accountable for results.

In these cases, Web sites can go untended and content can quickly become outdated.

Day-to-day management issues can also derail a Web strategy. For example, some companies have turned to agencies or Web vendors for Web site development support. Others assign the lead role to in-house IT departments. Still others leverage off-the-shelf software and shift the Web management responsibility to various areas of the company's enterprises.

All of these approaches have one serious flaw: They fail to achieve the optimal balance of Web site control among the right players with the right Web site development responsibilities.

Web Content Management solutions provide the balance that has been missing and simplify the management of the entire content development lifecycle. More than 200 Web Content Management tools are available to help a company gain control of its Web site development practices. Because these tools can vary significantly in their sophistication and functionality, making the right choice can be daunting.

Regardless of the approach you take to tool selection, companies should look to those tools that provide, at a minimum, the following three features:

  • An end-to-end process that allows owners to seamlessly move through every phase of content management
  • A streamlined content management workflow process that enables the assignment of authoring, editing and administrative responsibilities based on individual capabilities
  • A powerful content-editing feature based on predefined templates and preapproved design standards

Web Content Management enables a company to easily and appropriately assign ownership for all Web site development and maintenance activities. It supports a streamlined approach to Web site development.

It enables companies to overcome the challenge of balancing three critical Web site elements: information relevance, information timeliness and brand consistency. And, most important, it allows the organization to realize the far-reaching benefits of a well-managed, Web-enabled marketing channel.

Among these benefits are brand consistency, improved efficiencies, enhanced revenue, reduced Web site costs and greater customer satisfaction.

Before considering Web Content Management as the right approach to Web site optimization, companies need to ask the fundamental questions: "What should my Web site accomplish?" and "How are my organization's business objects supported by my Web site?"

The answers will not only help define the Web site vision, but also enable companies to focus on creating a sustainable and integrated marketing strategy.

Andy Carpenter is a senior consultant with Crowe Chizek and Company LLC. Reach him at (616) 752-4256 or acarpenter@crowechizek.com

Thursday, 27 February 2003 08:37

Burden of proof

On Dec. 18, 2002, in an arguably advisory opinion, the Ohio Supreme Court struck down an amendment to an Ohio statute that said an employee who is injured on the job and tests above certain limits for alcohol or drugs is not eligible for workers' compensation benefits.

Once again, the burden of proof is on employers to show that drug or alcohol use was the cause of the injury. However, the court has made that burden even more difficult by holding that post-accident testing not based on reasonable suspicion constitutes an unreasonable search and seizure. And the results cannot be used by the Bureau of Workers' Compensation or the Industrial Commission to deny a claim.

Thus, employers' hands are tied. Unless there is reasonable suspicion, the routine post-accident drug test may not be admissible evidence.

The following examples illustrate how tricky the subject of work-related alcohol and drug use can be.

* A saleswoman who is "known to drink" during the day is out on company business and is seriously injured when her car hits a patch of ice. A routine blood test at the hospital reveals that her blood alcohol is over the legal limit.

* A roofer at a small construction company falls off a roof while on the job. He sustains severe injuries and is told he will never work again. Upon taking a routine post-accident drug test, per your company policy, you discover a high amount of marijuana in his system.

Which of these workers will qualify for workers' compensation benefits? Both? Possibly. We'd like to think that an employer should not have to pay for injuries due to alcohol and drug use, but that is exactly what may happen, since the court's decision is not based on a tangible case.

This makes it difficult to predict how the law will be applied to a real-life situation. Regardless, this decision is a wake-up call for employers who do not have a clear drug and alcohol testing policy.

Ask yourself these questions:

* Do you have a drug and alcohol testing policy?

* Does it include a post-accident drug and alcohol testing provision?

* If so, how is it communicated to employees?

* Is it enforced uniformly?

* Are consequences tied to progressive disciplinary measures?

Simply having a policy is not enough. It needs to be communicated and enforced. Even then, you may not be able to successfully challenge the allowance of a workers' compensation claim that involves a positive drug test.

But if you diligently follow a well-thought-out drug and alcohol policy, that same drug test may help prove "voluntary abandonment" of employment, which could have a similar end result as a denied workers' compensation claim.

Even minor on-the-job injuries are hard on small business owners. The loss of productivity alone can be a major financial setback.

But if an employee is killed or permanently injured in such an accident, it can also be a life-or-death moment for the entire company. Make sure your drug and alcohol testing policy provides the best, safest environment for your workers, and for the survival of your business. Kendra L. Carpenter is an attorney in the Columbus office of Vorys, Sater, Seymour and Pease LLP, where she practices in the litigation group. She can be reached at (614) 464.6467 or by visiting www.vssp.com.