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POINTERS ON HOW TO NAVIGATE THROUGH GEORGIA’S MAGISTRATE COURT

Posted By Joette Melendez, Tuesday, November 6, 2018

Magistrate Court, also known as Small Claims Court, allows parties to litigate claims where the amount in controversy is less than $15,000.00. In addition, non-lawyers are allowed to represent not only themselves but their company. This difference is critical because, in State and Superior Courts in Georgia, companies must be represented by attorneys. While resolving a case in Magistrate Court can save time and money, it is important to understand exactly how the process works before choosing to litigate there. 

 

You have to choose the correct county in which to sue the Defendant. Make sure you sue him/her in the county where he/she resides. If the Defendant is a company, sue it in the county where its principal office is located. Go to the secretary of state website for this information: www.sos.ga.gov. Once you know what county to sue in, you can either go on line and find the complaint form to fill out or you can get the paper form to fill out at the Magistrate Court. Many courts now allow you to simply fill out your complaint on line. You will have to serve the papers on the registered agent of the company. If the registered agent cannot be found or is no longer at the address on the Secretary of State, there are provisions that allow you to serve the Secretary of State on behalf of the company you are suing. 

 

Once the Defendant is served with the complaint, he/she will have 30 days to file an answer. If an answer is filed, the Court will set the matter down for a hearing. On the date of court, most judges will make the parties discuss settlement. You are not required to settle, but you have to at least discuss settlement in good faith.

 

If you actually have a trial, understand that while the rules of evidence are relaxed in Magistrate Court, you still have to prove your case, and hearsay evidence will still not be admitted. That means that if you are seeking to recover damages, it will not be admissible to simply show the court estimates or tell the Judge that someone told you that it will cost a certain amount of money to fix it. In order to recover damages, you have to either show that you paid a bill, and then provide proof of payment, or you have to bring to court the person who provided the estimate. If you want to be sure a witness shows up in court, you should serve him/her with a subpoena before the trial.

 

All cases (except defaults) can be appealed simply based on the fact that a litigant does not like the result. When that happens, the case is transferred to either the State or Superior Court in the same county, and it starts all over again. Whatever happened in the Magistrate Court does not matter as the case is adjudicated “de Novo” – a Latin phrase meaning “from the new” or in laymen’s’ terms, the entire case is heard from the start. 

 

Leaving court with a judgment does not ensure that you collect what you have been awarded. The court does not “make anybody pay,” and it is up to you to collect your judgment.

 

If you obtain a judgment and the other side does not appeal, you can try to recover your judgment by way of a garnishment. A garnishment is a separate legal action where you serve either the Defendant’s bank or employer and either take money in the bank account, or intercept wages that are due to the Defendant. If you do not know where the Defendant works or banks, you can send post judgment discovery to the Defendant and he/she is required to answer. There are forms for this post judgment discovery in the clerk’s office. 

 

While a non-lawyer can certainly successfully navigate through Magistrate Court, knowing in advance what to expect will make the sailing much smoother.

 

 

This content was written by one of our panel members, David Merbaum, an attorney in Alpharetta, Georgia.

 

***If you or someone you know is faced with Magistrate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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YOUR RIGHTS UNDER THE HIPAA

Posted By Joette Melendez, Friday, April 6, 2018

Often mistakenly abbreviated as HIPPA, rather HIPAA stands for “Health Insurance Portability and Accountability Act of 1996.” It is a set of federal rules designed in part to protect the privacy of a person’s health care information by providing notice and an opportunity for consent to the person whose health information is sought. Congress passed this law to regulate “covered entities” namely, (1) health plans, such as health insurance companies, (2) health care clearinghouses, such as billing companies and third party administrators; and (3) health care providers, such as hospitals and doctors, from disclosing patients’ private health records. Georgia, as do most states, has similar laws protecting the confidentiality and privacy of patient health information. For instance, licensed Georgia hospitals must have a medical records service that is responsible for the administration of medical records. Ga. Code Ann., 290-9-7-18 

 

The goal set out by the HIPAA regulation is to secure a person’s “protected health information” (PHI) in the medical record or designated record set that can be used to identify an individual and that was created, used, or disclosed in the course of providing a healthcare service such as a diagnosis or treatment. PHI is information, including demographic information, which relates to:

 

The individual’s past, present, or future physical or mental health or condition;

 

The provision of health care to the individual, or

 

The past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. Protected health information includes many common identifiers (e.g., name, address, birth date, Social Security Number) when they can be associated with the health information listed above.

 

Section 164.514(a) of the HIPAA Privacy Rule, permits the removal of personal identifiable information from medical records so that a covered entity would have no reasonable basis to believe it can be used to identify an individual. The Safe Harbor provision (Section 164.514(b) is the most practicable way a covered entity can apply the “de-identification” standard. This is accomplished by removing personal identifiers from an individual’s records such as: names; geographic subdivisions smaller than a state; telephone numbers; vehicle identifiers and serial numbers, including license plate numbers; fax numbers; email addresses; medical record numbers; biometric identifiers, including finger and voice prints; and full-face photos, “etc.” Records disclosed following these guidelines are not protected under the Privacy Rule. 

 

With the advent of HIPAA patients now have the right to: receive Notice of Privacy Practices (NPP); access and copy medical billing records; request an amendment of PHI or other records; an accounting for some disclosures; request restrictions on use and disclosure of their PHI; request the use of alternate channels of communication of PHI (e.g. use a different telephone number, different address, etc.); and report violations to state and/or federal authorities.

 

Although HIPAA now imposes universal standards on covered entities to protect a patient’s privacy, it does not explicitly create an individual right of action for patients affected by the privacy violation. An individual do not gain a right of action to bring its own complaint against the responsible violating party, but must file a complaint with the Department of Health and Human Services or the appropriate state authority such as a State Attorney General’s office. Usually if the federal or state agency decides to pursue a victim’s complaint, it may impose fines against the covered entity and force them to implement a set of standards to avoid future pitfalls of violating HIPAA. However, for the individual who may now be subject to mental anguish, lost opportunities, or other damages due to violation of their HIPAA rights the law stops short at providing an individual redress to claim damages. However, some attorneys have found ways to institute private rights of action for clients whose HIPAA rights were violated. These rights are brought forth under state tort laws where it can be shown the covered entity was negligent in disclosing a patient’s private information and must be held liable for damages. HIPAA now provides a ‘bright-line” standard test for examining a covered entity’s negligence in disclosing a person’s PHI. State privacy laws, professional malpractice, and negligence are grounds given legal causes of action to an individual whose HIPAA rights are violated. HIPAA law provides an attorney the framework to bring these causes of action. In a 2013 judgment Walgreens was ordered to pay $1.44 million as a result of a pharmacist violating a patient’s medical records. HIPAA was not used as the basis of the lawsuit but was use as the applicable standard to show how the pharmacist and Walgreens committed negligence in disclosing health care information without a person’s consent. 

 

This content was written by one of our panel members, Dorey N. Cole, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with HIPAA issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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What is Legal Malpractice?

Posted By Joette Melendez, Friday, March 2, 2018

Most people have heard or read about “medical malpractice” claims, which arise from the negligence of a doctor, nurse, or other health care professional. But what if the professional whose conduct has fallen below the applicable standard of care is a lawyer?

 

Clients hire attorneys to represent their interests. As a client’s representative, an attorney is not bound to use extraordinary efforts on behalf of their client, but all lawyers should be competent and must exercise ordinary care, skill, and diligence in the performance of tasks which they undertake. Because of the fiduciary relationship between an attorney and client, lawyers are obligated to show their clients the utmost good faith and loyalty and act solely for the benefit of the clients they represent. Joel v. Chastain, 254 Ga. App. 592 (2002). (81)

 

Does the client have a remedy if the lawyer does not do the job he or she was hired to perform? The answer is “yes,” with some well-grounded qualifications, including: 

 

* The elements of a cause of action for legal malpractice are: a) employment of defendant; b) defendant's failure to exercise ordinary care, skill and diligence; and c) defendant's negligence was the proximate cause of plaintiff's damage. Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75 (2007). 

 

* Neither contractual formalities nor payment of a fee are required to establish an attorney-client relationship. Guillebeau v Jenkins, 182 Ga. App. 225 (1987). 

 

* An act of negligence alone does not create a cause of action for legal malpractice. The plaintiff in a legal malpractice lawsuit must show that but for the lawyer’s act or omission, the client would have obtained a better result. Rogers v Norvell, 174 Ga. App. 453 (1985). 

 

* Attorneys are not insurers of the results of their efforts on behalf of clients. They will not be held to have breached the applicable standard of care except in cases of willful or negligent failure to apply well known and accepted legal principles and procedures, either because they are ignorant of them, or because they have failed to act reasonably to protect the client’s interests. Littleton v. Stone, 231 Ga. App. 150 (1998). 

 

* Where further litigation of the underlying claim may lead to a favorable result at the time the allegedly negligent attorney is terminated, the plaintiff may be precluded from proving his malpractice case if he settles the underlying claim. Jim Tidwell Ford, Inc. v. Bashuk, 335 Ga. App. 668 (2016).

 

* A legal malpractice plaintiff generally must produce opinion testimony of an expert witness in order to prevail. O.C.G.A. § 9-11-9.1.

 

* If the lawyer has committed a violation of the ethical duties set forth in the Georgia Rules of Professional Conduct, the client can file a grievance with the State Bar’s Office of General Counsel. The purpose of a disciplinary proceeding is not to seek financial compensation for the client but, rather, help regulate the legal profession and protect the public.

 

This content was written by one of our panel members, Warren Hinds, an attorney in Roswell, Georgia.

 

***If you or someone you know is faced with tort issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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"When a Love One is Gone, What's Next?"

Posted By Joette Melendez, Wednesday, February 14, 2018

There is no exact way to prepare for the unexpected death of someone you love and care for. The period surrounding the loss of a loved one is one of the most stressful periods that one may face. Take time to grieve. I cannot stress this enough, ensuring that your mental and physical wellbeing are intact; it’s essential to getting through this phase. Trying to figure out what steps must be taken next in handling your affairs will be difficult. Preparing for a passing beforehand makes it easier to focus on the important tasks ahead. Here is a checklist of some of the more important considerations:

 

 Notify immediate family.

 Collecting mail and important utility bills

 Locating important items such as keys, insurance policies, claims forms, addresses for magazine subscriptions, etc.

 Planning the wake, funeral, and/or memorial services

 Organizing food for family and friends after the services

 Obtaining the Death Certificate

 Notifying their employer

 Notifying the Office of Social Security

 Notifying their Guardian or their Power of Attorney

 

There are a few things that you can put in place right now that will aid in this transitional period. As morbid as it sounds, planning your funeral ahead of time is one way to ease the stress of your loved ones when you’re gone. You can start contacting funeral homes and start making arrangements for your burial and final preparations. Most funeral homes are happy to answer questions and give you options on different services.  

 

If you lost a significant other or a partner, you may already have certain mechanisms in place that alleviate certain issues. You may have had a joint bank account with the decedent and now you are listed as a "surviving owner." In this case, you would need to provide a death certificate to the bank to take ownership. Similarly, if you held joint interest in property that included “the right of survivorship", then ownership of that property will automatically pass to you as the survivor. 

 

Your loved one may have been preparing for a situation like this and has an estate plan in place. If there is a Will, the law requires that it be filed with the Probate Court in the County where the decedent lived. The Clerk will provide the executor or executrix of the Will with the necessary paperwork. If there is no Will, you may have to go through some formal administration process in the same Probate Court. Any remaining assets and properties can be disbursed through the administration of the estate. Once a probate process is initiated, don’t forget to notify all creditors that your loved one may have had. Remember it’s the estate not YOU that is liable for any debts.

 

As hard as it may be, as soon as possible start sorting and disposing of your loved one’s personal items and clothing. Taking too long to go through this process, may seriously delay the ending of the grieving process, acting as a very painful and constant reminder of the person's death. Only a few items should be retained as mementos. However, remember that no items should be moved, sold, given away or otherwise disposed of if they have been identified in the person's Will as items to be distributed as a part of the estate. Only the legal beneficiary of those items is entitled to make the decision as to their disposal.

 

Losing a loved one is hard, seek help when necessary to ensure that your mind, body, and soul will be ready to face this new chapter in your life. (A Checklist of What To Do When A Loved One Dies, Georgia Department of Human Resources, Division of Aging Services)

 

This content was written by one of our panel members, Aisha Success, an attorney in Decatur, Georgia.

 

***If you or someone you know is faced with probate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Guardianship

Posted By Joette Melendez, Tuesday, December 19, 2017

Is it time for guardianship for your mother or father? There comes a time in many of our lives when we believe our parents are unable to care for themselves any longer. If you are in that situation, you should understand what you can do outside of having legal authority over your parents and what you can do if you have a court Order. This article will hopefully help you understand that. 

 

The first thing that you should do is ensure that your parents have a Durable Power of Attorney for their financial affairs, as well as an Advance Healthcare Directive for their medical affairs. These documents must be completed and signed by the person appointing another to make decisions. These documents must be signed while that person is legally competent. It is too late after that person lacks capacity to make decisions for themselves. Therefore, while your parents are younger and in good health and spirits, sit down with them and urge them to create these two documents. The person appointed by these two documents, generally speaking, will never need a court Order for any purpose. As with all rules, there are exceptions to this generalization. If you have a Durable Power of Attorney for your parents' financial affairs, most businesses, banks, and institutions will accept this power in lieu of your parents actually participating in whatever business transaction you are conducting. If you have an Advance Healthcare Directive, medical providers will work with you to assist your parents. Hospitals will accept the Advance Healthcare Directive and allow the appointed person to begin making medical decisions for their parents. However, here we are talking about how to handle the situation if your parents have failed to generate these documents. 

 

A guardianship is a court ordered position where the court has found your parent lacks capacity to make reasonable decisions for themselves. This generally will occur when the person can no longer feed, clothe, bathe, take medications and otherwise generally care for themselves. There is no absolute standard for guardianship. It is left to the discretion of the judge after hearing testimony from interested people, including the person over whom the guardianship is proposed. You should consider seeking a guardianship for your parent whenever they begin making irrational decisions or when the medical providers tell you they can no longer accept your directions for your parent. With the new HIPPA laws, doctors and hospitals are prohibited from sharing a person's medical records with anyone. Unfortunately, this covers the situation of children taking care of their elder parents. You will probably notice your parents need for a guardianship first as it relates to their financial affairs. They will begin either giving their money away (or hoarding their assets) through irrational decisions. Each is a common characteristic of a person who is losing their capacity to manage their affairs. Guardianship hearings in the Probate Court are very emotional hearings. Rarely does the person over whom the guardianship is proposed want the guardianship imposed on them. 

 

One condition for which a guardianship will not be granted is when a person quits taking his medication. In some instances, people have been diagnosed with mental illnesses and prescribed medications to control that illness. So long as that person takes the medication, they are generally, fine, but when the person stops taking this medication, they become irrational or uncontrollable. The court, generally speaking, cannot impose a guardianship over that person because while on medication, they are perfectly safe to be alone and are capable of caring for themselves. Furthermore a guardianship does not give the Guardian the power to make the ailing person take medications. There are no laws on the books that can be used to force a person to take drugs they do not wish to take. Therefore, you cannot use a guardianship as a means to enforce some type of medicine therapy. The court is taking the individual's rights away as it relates to that person's ability to make decisions about living arrangements, doctors, and generally any other normal day-to-day decisions that most of us take for granted. Because of the seriousness of this Order, many safeguards are in place to ensure that the person who's rights are going to be affected has representation at the trial as well as, in many cases, another person appointed to generally investigate the condition of the person. These trials might take an hour or many days depending upon the issues to be decided and the evidence to be heard. Generally, guardianships are quite expensive. 

 

Included with the general topic of guardianship is also a conservatorship. Conservatorships are simply guardianships over a person's property, whereas a guardianship is control over the person himself. The two positions are usually asked for in the same decision and evidence as to both positions are heard in the same trial. The standard used to determine whether a Guardian is needed or whether a Conservator is needed is slightly different. Therefore, there are instances where one may be granted, a conservatorship but not a guardianship, or the other way around. In most cases, both positions are either granted or denied. Any adult relative can file for guardianship with the preference being the spouse of the ailing individual and if there is no spouse, then adult children of that parent. If none of the children are willing to seek guardianship over their parents, then, any other interested person may apply and in some case, even the State will apply to take control over the parents. This is the last resort and hopefully not one that anyone is subjected to. 

 

If you have need help with the guardianship or conservatorship, feel free to call our office to speak to one of our attorneys. 

 

This content was written by one of our panel members, Robert Hughes, an attorney in Lawrenceville, Georgia.

 

***If you or someone you know is faced with family law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Thou Shalt Not Discourage: An FMLA Cautionary Tale for Employers

Posted By Joette Melendez, Tuesday, December 19, 2017

The Eleventh Circuit Court of Appeals recently vacated a district court’s summary judgment order on the basis that a jury could find that the defendant employer interfered with the plaintiff employee’s rights under the Family Medical Leave Act (FMLA) when its Human Resources (HR) Manager sent the plaintiff an email discouraging her from taking her full leave entitlement under the FMLA. See Diamond v. Hospice of Fla. Keys, Inc., 677 Fed. Appx. 586 (11th Cir. 2017). 

 

In Diamond, the plaintiff, worked as a social worker for the defendant, Hospice of Florida Keys, Inc. Throughout plaintiff’s employment with the defendant, the plaintiff took intermittent leave under the FMLA to care for her parents who had serious medical conditions. In March and April of 2014, the plaintiff took almost two weeks of leave to care for her ailing mother. In April 2014, the defendant’s HR Manager sent the plaintiff an email stating that the plaintiff’s “continued unpaid time away from the workplace compromises the quality of care [the defendant is] able to provide as an organization.” See Diamond, 677 Fed. Appx. 586, 590. For fear of losing her job, the plaintiff decided to forego using all of her approved FMLA leave. Nonetheless, in May 2014, the defendant terminated the plaintiff.

 

To establish an interference claim under the FMLA, the plaintiff had to prove that she was (1) denied a benefit to which she was entitled, and that (2) she suffered harm as a result. Under the FMLA, “benefits” include taking up to 12 weeks of leave in a single 12-month period and being reinstated after taking such leave. Refusing to authorize leave to an eligible employee or merely “discouraging” an eligible employee from using such leave constitutes interference under the FMLA. See 29 CFR 825.220(b). Under the FMLA, harm can include “any monetary losses” incurred by an employee because of her employer’s violation of the FMLA. 

 

The Court held that a reasonable jury could find that the defendant discouraged plaintiff from taking FMLA when it sent her an email essentially warning her that taking additional FMLA leave could jeopardize her job. The Court also held that there were sufficient facts in the record for a jury to find that the plaintiff suffered harm. Specifically, the plaintiff testified that she would have taken more FMLA leave had the defendant not discouraged her from doing so, and thatshe incurred additional travel costs by making turn-around trips to her mother’s home instead of staying for an entire month as recommended by her mother’s doctor.

 

In short, this decision is a cautionary tale for employers on what not to say to employees who request leave under the FMLA. 

 

This content was written by one of our panel members, Louise Smith, an attorney in Dacula, Georgia.

 

***If you or someone you know is faced with labor law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Protecting the Elderly: Key Warning Signs of Financial Exploitation

Posted By Joette Melendez, Monday, October 2, 2017

Thousands of Georgia families have made the extremely difficult decision to place their aging parents, grandparents or other loved ones in nursing homes or assisted living facilities. We trust these facilities to take care of our relatives and make sure their needs are met. That’s why it’s so devastating when they turn out to be negligent, or worse, perpetrators of abuse.

 

While it doesn’t get a lot of media attention, the most common form of elder abuse isn’t physical, sexual or emotional – it’s financial exploitation. Nationwide, it’s a billion-dollar problem. And the perpetrators, far too often, get away with it – only a tiny fraction of cases of financial exploitation are reported.

 

If you have an elderly loved one in a long-term care facility, you need to be their strongest advocate and watch out for any signs of financial abuse. Here’s what you need to look for:

 

• Sudden changes in estate planning documents. This might include a change in your loved one’s Last Will and Testament or a related document. Financial exploitation often comes relatively late in the estate planning process, with an abrupt – and suspicious – departure from a long-standing plan.

• Inconsistencies in documentation. Make sure you’re carefully reviewing your loved one’s financial documents, such as billing statements, and cross-referencing them with other documents such as treatment notes. Discrepancies may point to double-billing or billing for services not rendered.

• Reluctance to communicate. If your loved one previously was happy to talk about financial matters with you and has recently become withdrawn or evasive, that’s a significant red flag. They may know something is wrong.

• Isolation. This is a red flag for any sort of abuse, and financial exploitation is no exception. While the nursing home may have legitimate reasons to limit calls or visits, if you find that you’re unreasonably isolated from your loved one, the nursing home may be trying to hide signs of exploitation.

• Unexplained transfers or withdrawals. This is one of the clearest warning signs of financial abuse. If your loved one’s assets are actually being taken by another person, you need to take immediate action.

 

Now, there are possible legitimate explanations for anything that may look like a warning sign of financial exploitation. If you have reason to suspect that your loved one may be a victim, don’t panic. Call an attorney with experience handling nursing home negligence cases and explain your concerns. Your attorney can investigate and get to the bottom of the situation.

 

If nothing else, you’ll get the invaluable peace of mind that comes from knowing the truth. And if your loved one has been exploited, an attorney can help you put a stop to it – and fight for the compensation you need to get your loved one’s life back on track.

 

This content was written by one of our panel members, George Johnson, an attorney in Decatur, Georgia.

 

***If you or someone you know is faced with elder law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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ADA Basics: When Does An Employee Have a Disability Discrimination Claim?

Posted By Joette Melendez, Wednesday, September 13, 2017

In 2008, Congress amended the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., (ADA) to broaden protections against disability discrimination. As a result many employees who may not consider themselves to be disabled or whose employers may not regard them as disabled may have disability discrimination claims under the ADA.

 

The ADA, as amended, defines disability discrimination to include: 1) discrimination on the basis of a current disability or 2) a record of disability, 3) the failure to reasonably accommodate an individual with a known disability or record of disability --or discrimination because of the need for accommodation, 4) discrimination because one is “regarded as” having a disability—which does not mean what you think (more below), 5) discrimination because of the disability of an individual with whom the employee has a relationship or association, 6) making an impermissible medical examination or inquiry or failing to maintain the confidentiality of permissible medical inquiries; and 7) participating in a contractual relationship that has the effect of discriminating on the basis of disability.

 

Discrimination on the basis of a current or actual “disability” means – taking adverse action against employees who have a mental or physical impairment that “substantially limits” them in a major life activity or major bodily function as compared to most people in the general population. Under the 2008 amendments to the ADA, which broadened the scope of the law, substantially limited is not meant to be a demanding standard. For example, a broken ankle that substantially limits someone in the major life activity of walking may be a disability under the ADA.

 

Whether an impairment substantially limits an employee is evaluated without the use of mitigating measures such as medication or physical therapy (, or crutches). This means, for example, that even if an employee is not substantially limited in a major life activity if she takes her medicine, if without her medicine she would be substantially limited, she has a disability under the ADA. In addition, substantial limitation for episodic conditions such as epilepsy, bipolar/depressive disorder, ulcerative colitis, multiple sclerosis, migraines and asthma—to name just a few, is evaluated as of when the condition flares up or is active, not when it is in remission or under control.

 

A “record of disability” under the ADA, simply means a history of having a disability.

 

An employer covered by the ADA (with 15 or more employees in 20 calendar weeks of the current or preceding calendar year) must reasonably accommodate otherwise qualified employees who have a known “disability” or a “record of disability” in a manner that would enable them to perform the essential functions of their position, unless to do so would pose an undue hardship on the employer or its operations. In most cases it is the employee’s responsibility to make known to an employer that they need help – though no magic words are required. An accommodation will be deemed “reasonable” if it is plausible on its face or seems reasonable in the run of cases. 

 

Reasonable accommodations can include reallocating (or eliminating) the marginal or non-essential functions of a position, providing assistive devices or technology or alternative methods to enable an employee to complete essential functions, providing qualified readers or interpreters, or granting a reasonable period of leave to allow treatment, follow-up treatment, medication adjustment and/or recovery from an episodic flare-up or a new substantially limiting impairment. Reasonable accommodation may also include transfer to a vacant position at the same level or below for which an employee is qualified. 

 

An employer violates the ADA not only when it fails to reasonably accommodate a disability or record of disability, but also when it takes adverse action against an employee because of his actual or suspected need for reasonable accommodation. 

 

An employer may have a defense against a claim of damages due to a failure to reasonably accommodate if it engages in good faith in an interactive process with the employee in an attempt to identify a reasonable accommodation.

 

“Regarded as” disability was also redefined in 2008 to broaden the scope of this antidiscrimination provision. An employer does not have to actually regard an employee as having a disability, nor does an employee’s impairment need to actually be or be perceived as being substantially limiting, for the ADA to protect an employee from discrimination. Employees are “regarded as” having a disability if their employer takes an adverse action against them because of an actual or perceived physical or mental impairment, whether or not this condition is substantially limiting. 

 

This means, for example, if an employee is fired because of a permanent limp that does not substantially limit their ability to do anything – but that the employer thinks reflects badly on the fitness of its employees, that employee will have been fired because of a “regarded as” disability – an impairment that resulted in an adverse action against him. 

 

While employers must reasonably accommodate an employee with a substantially limiting impairment or a record of such impairment —that is a “disability” or “record of disability,” they do not have to accommodate an employee who meets only the “regarded as” definition of disability. An employer also has a defense against a “regarded as” claim if the employee’s impairment is both “transitory” (lasting 6 months or less) and “minor” (which is not defined by the statute.) Note, however, that according to EEOC regulations an actual “disability” may be substantially limiting and require reasonable accommodation, even if it lasts less than 6 months.

 

In addition to prohibiting discrimination on the basis of an employee’s own disability, the ADA also forbids discrimination against an employee because of their association with an individual with a disability. These issues frequently arise when an employer presumes that the disability of a relative or significant other will result in additional expenses for the employer, when the associate of the employee has a contagious disease or condition that results in fear of infection or stigma, or when the employer fears that the disability of a loved one will result in absence from work.

 

Note, that although an employer may not discriminate against an employee because of their association with a person with a disability, employers are not required to reasonably accommodate an employee because of the disability of a family member or close associate. So, employees are not entitled to medical leave under the ADA to care for a family member with a disability (although they may be entitled to such leave under the Family and Medical Leave Act.) 

 

The ADA also provides protection for the privacy rights of employees. An employer is not allowed to make pre-offer medical inquiries of applicants for employment, whether or not the applicant has a disability. Once an offer is extended such inquiries may be made only if they are made of all employees in that type of position regardless of disability. An employer can use this information to disqualify an applicant with a disability only if the reason is job related and consistent with business necessity. Likewise, an employer cannot make medical inquiries of current employees unless the inquiry is job related and consistent with business necessity. These criteria may be met when such information is needed to evaluate a request for reasonable accommodation, or to determine the fitness for duty of an employee whose performance has declined in a manner that indicates that a medical evaluation is needed. 

 

If an employee is required to provide the employer with confidential medical information in order to support their request for reasonable accommodation (or a request for medical leave under the Family and Medical Leave Act) or to submit to a fitness for duty exam, the employer must retain the employee’s medical information in confidence and may disclose it only to managers (and first aid emergency personnel) with the need to know. If the employer discloses this confidential information to others the employee may recover for any damages that result, including damages for emotional distress.

 

An employer also may conduct “voluntary” medical examinations that are part of employee health programs. However, a recent decision brings into question whether an employer’s payment of up to 30% of health insurance premiums for participation in such programs may make such participation involuntary. 

 

Finally, employers may be held responsible for disability discrimination by those with whom they contract, for example, staffing agencies who impose impermissible qualification standards on applicants with disabilities, or third party administrators – who discriminate on the basis of disability in administering benefits, except on the basis of permissible underwriting criteria. Thus, if an employee is denied a reasonable accommodation by a third-party administrator, an employer may be held responsible for this violation of the ADA. 

 

Lisa B. Golan has over 30 years of experience in advising employers and employees on their rights under federal law and speaks and writes extensively on claims under the Americans with Disabilities Act and the Family and Medical Leave Act. She may be reached at 770-409-7922 or at lbgolan@golanlawoffice.com.

 

This content was written by one of our panel members, Lisa Golan, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with ADA employment discrimination issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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A General Scope for Social Security Eligibility.

Posted By Joette Melendez, Tuesday, August 22, 2017

A person may become unable to work for many different reasons. He or she may, for example, develop a form of cancer, or lose a limb to diabetes, or develop a blockage resulting in a heart attack. The physical manifestations are often obvious. There may also, however, be mental or psychological impairments that one cannot physically see that plague a person the most. These symptoms may be brought on by emotional trauma as well as physical, and may result in post-traumatic stress disorder, for example. Sometimes, psychological conditions such as severe depression and anxiety may develop as the result of the continued effects of physical injuries such as pain. Unfortunately, these conditions may not be as easily recognized, diagnosed, or treated as quickly and effectively as physical problems may be. 

 

To determine whether or not a person is disabled because of a mental impairment, Social Security considers how a person’s functional limitations may preclude work. To be eligible for Social Security disability based on a mental or psychological impairment, a person must demonstrate one of the following: first, that his or her psychological condition(s) meets or equals one of the “listed” impairments outlined by the Social Security Administration (SSA listing 12.00 Mental Disorders – Adult) or second, that his functional limitations result in a “residual functional capacity” that would preclude work. To satisfy these requirements, SSA looks to medical evidence, including opinions from treating medical providers, and testimony from the claimant, among other information. 

 

The requirements for meeting or equaling a listed impairment are very specific. Some of these general conditions include: neurocognitive disorders; schizophrenia; depression; bipolar; intellectual disorders; anxiety; obsessive-compulsive disorders; and trauma- and stressor- related disorders. If a person’s condition(s) meets or equals the requirements of one of these listings, and the durational component is met, he should be awarded disability. 

 

If a person can’t prove that his mental impairment meets or equals the requirements of a listing, he may also establish the degree of his disability through his “residual functional capacity” or “RFC.” Here, he demonstrates how his functionally impaired abilities would preclude his ability to perform certain work activities. Some abilities SSA may consider in determining an RFC include: the ability to relate and respond appropriately to people in a work setting; the ability to attend meetings; the ability to work around the home; the ability to socialize with friends and neighbors; the ability to care for personal needs; the ability to understand, carry out and remember instructions; the ability to maintain attention/concentration; the ability to respond appropriately to supervision; the ability to function independently to complete tasks; the ability to respond to customary work pressures; the ability to demonstrate reliability; and the ability to maintain persistence and pace. SSA considers, alone or together, whether the total of such limitations would preclude work. For example, perhaps a person’s symptoms cause him to be “off-task” for 15% or more of the work day. Or, maybe a person’s symptoms would cause him to be consistently late to work, need to leave early from work, or to miss more than one day of work per month. Such limitations would most likely preclude work. 

 

Counsel should keep in mind the importance of psychological or mental impairments, as well as physical components of a disability, to determine the true cause and limiting effects of a person’s conditions. He or she should fully bring into focus the participation of each and the weight that each must be afforded.

 

This content was written by one of our panel members, Allison Affleck, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with social security issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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Employment Law 101: What is a “Wrongful Termination?

Posted By Joette Melendez, Thursday, July 20, 2017

Call it what you will—layoff, reduction in force, downsizing, headcount reduction—the global economic situation has resulted in more job losses and unemployment than the United States has seen in generations.  As an employment lawyer, I am asked on a daily basis how one can determine whether he/she has a claim for “wrongful termination.”  

 

At-will Employment

 

You may be aware that Georgia, like almost all states, is an “at-will” employment state.  At-will employment means that, unless you have an employment agreement for a specified term providing that you can only be terminated for “cause,” you can be terminated for any reason or no reason at all, so long as no law is violated.  Your employer does not need to justify its actions, utilize progressive discipline, or allow you an opportunity to present your side of the story.  In other words, it is not illegal for an employer to be unfair or wrong when it fires an “at-will” employee.  

 

The Exceptions

 

The main exception is where the termination decision was based on the employee’s race, color, gender, age, religion, national origin, pregnancy, disability or veteran status.  If you can show that you were treated less favorably than other similarly-situated employees outside of your “protected class,” you may have a claim for unlawful discrimination.  

 

Another exception is where you have complained to your employer about discrimination or some other unlawful act, or filed or participated in a discrimination claim, and your employer terminates you in retaliation for these activities.  

 

If you are a union member or a government employee, you may have additional rights.

 

Do I Have a Case?

 

So, what if you believe that the decision to lay you off was based on your race, color, gender, age, etc.?  To successfully pursue a claim for discriminatory discharge, you must have evidence that the decision was based on your membership in one or more of these protected classes.  Certainly, it can be harder to prove that your termination was discriminatory or retaliatory when many others are suffering the same fate as you are.  But ask yourself this:  was the layoff legitimately based upon financial reasons, and if so, why were you chosen?  If you were chosen for layoff over someone outside of your protected class who was less qualified, then you may have a viable claim.  Comments or jokes evidencing bias against certain workers can often be circumstantial evidence of discrimination.  For example, comments by a decision-maker about wanting to have a more “youthful, aggressive sales team” may be evidence of age discrimination.  Jokes about a Pakistani employee’s accent may be evidence of national origin-based discrimination.

 

In addition, a reduction in force that is based on non-discriminatory factors (e.g., cost-cutting) may be unlawful if it has a discriminatory impact on a protected class.  For example, a plan that focuses on eliminating higher paying positions may have a disparate impact on older workers since they tend to earn more than younger workers.

 

The biggest part of any case is discovery—the process in which either party can request documents and information from the other side to prove their case or mount their defense.  Once it appears that an employment dispute is likely to lead to litigation, the employer is obligated to preserve all relevant documents (including emails, computer files, Blackberry data, etc.) that may become discoverable in the case.  Emails tend to be a treasure trove of helpful evidence in employment cases.  People who wouldn’t dream of committing certain thoughts, opinions, or feelings to paper think nothing of firing off a quick email with those same sentiments.

 

What Should I Do To Pursue It?

 

If you have not yet been laid off, but believe that you will be, this would be an excellent time to consult with an attorney specializing in employment law.  Your attorney may be able to help you avoid layoff by having your employer consider you for a transfer within the organization, or help position you to negotiate for a favorable severance package in the event that you are terminated.  If you have already been terminated and you believe the decision was discriminatory or retaliatory, it is also a good idea to consult with an employment law attorney.  Your attorney can negotiate with your former employer on your behalf or present a strong case to the Equal Employment Opportunity Commission—the federal agency that investigates employment discrimination claims—and, if necessary, file a lawsuit on your behalf.

 

Greg Fidlon has over eleven years of experience representing employers and employees in individual and class action litigation, and advising clients on all aspects of the employment relationship.  He can be reached at greg@fidlonlegal.com or 770-807-0083.

 

This content was written by one of our panel members, Gregory Fidlon, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with labor issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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