Bilingual Attorneys Part of the Firm’s Next Generation

This fall, the firm welcomed D. Pamela Saenz and Peter Qiu as new associates following law school graduation.  Unique to this class of attorneys is that they are both bilingual.  Peter’s parents were both Chinese born moving to United States in the early 1990s, with Peter being the first generation in his family to be born and raised in the United States.  Born in New York City, Peter has lived in New York, Georgia, Mississippi and Louisiana before settling in Kansas during fourth grade.   Peter spent his final years of grade school and  middle school and high school in the Hutchinson, Kansas area.  Peter then attended Washburn University (BA 2017) and the University of Kansas School of Law (JD 2021).  Peter was able to study abroad in Beijing, China following his first year of law school at the University of Kansas School of Law where he studied Chinese corporate law, labor law, constitutional law, and many others. 

Peter is fluent in both Mandarin and English, with Mandarin being the primary language spoken in Peter’s home growing up.  His Mandarin fluency which makes him invaluable with international clients and cases.  But this trait is equally as attractive with local clients and cases, with Peter able to serve central Kansas’s noticeable Chinese population.  Through Peter’s life experiences (including working in a family-owned restaurant throughout his life), Peter believes that many Asian business owners that are not native English speaking tend to avoid retaining lawyers when prudent because of the cultural and linguistic differences.  Peter hopes his experiences can help better serve these populations.

Pam is a first generation Hispanic-American, with her father immigrating from Mexico and her mother immigrating from Honduras in the 1990s.  Her parents, having met in Wichita, have called Wichita home for Pam’s entire life.

Spanish is Pam’s first language since it was the only language her parents could speak at the time of her birth.  However, once in school, English overtook her communication both inside and outside her home as she and her family worked to assimilate.  As a result, while she always understood Spanish, she was not very comfortable speaking Spanish during a large part of her childhood.  Pam began taking formal Spanish classes in high school and majored In Spanish in college.  It was through these formal teachings that she learned to read, write, translate, and interpret Spanish, and gained confidence in her Spanish-speaking abilities.

Being the child of immigrants, Pam saw firsthand how difficult it was for her parents, relatives, and family friends to obtain services in Spanish—be it at doctor’s appointments, banks, county offices, or nearly anywhere else. This became a strong motivating factor for her to attend law school – the desire to provide competent representation for Spanish-speaking individuals in the language in which they felt most comfortable.  Pam felt the impact of her bilingualism when she worked as an office assistant for an immigration attorney, and in law school when she served as an intern for the Washburn Law Immigration & Family Justice Clinic. These opportunities allowed her to build trust with clients and avoided the complications of coordinating and communicating through an interpreter.  Now as a lawyer, there is a significant Hispanic population in Wichita that Pam looks forward to assisting.

Super Lawyers Recognizes 6 Hite, Fanning & Honeyman Lawyers

We are proud to announce that we’ve been recognized by Super Lawyers,a rating service of lawyers from more than 70 practice areas. Those recognized as Super Lawyers have not only had significant professional achievements but who are being recognized by peers. Super Lawyers are selected throughout the United States and represent excellence in the profession.

This year we have been notified that the following attorneys from HFH are being recognized.

Don D. Gribble, who practices medical malpractice law

Richard L. Honeyman, a seasoned lawyer in business litigation

Linda S. Parks, one of our attorneys handling business and corporate law 

Jim Robinson, bringing his experience to business litigation

Randy J. Troutt, a well-respected medical malpractice attorney 

Gaye B. Tibbets, who brings her non-inconsiderable knowledge to employment and labor clients.

And, we are proud to announce that Stephen H. Netherton, who practices medical malpractice law, has been recognized as a Rising Star!

Congratulations to everyone! 

Jingle all the way 2021!

The firm continues to support the community with their recent sponsorship of The Jingle. This annual holiday event benefits Ronald McDonald House Charities, providing the families of children in local hospitals a place to call home while they are away from home. This year the event was virtual and spread out over a few days allowing for silent auction bidding. So guests got to relax at home, have a refreshment and bid at their leisure! We are proud to have been a part of the fundraiser and look forward to a real celebration next year!

Mackenzie Baxter brings her talents and compassion to Ronald McDonald House Charities.

Associate Mackenzie Baxter recently joined the Board of Directors for Ronald McDonald House Charities Wichita. The mission of RMHC is to create, find, and support programs that directly improve the health and well-being of children and their families. We know that Mackenzie will be an asset to the organization and we appreciate her making time to be a part of our community outside of work.

Partner Linda Parks receives Lifetime Achievement Award

Partner Linda Parks was recently recognized with the Lifetime Achievement Award from Washburn Law School. Of course, this came as no surprise to the HFH team! We have seen Linda excel in her profession every day, and in every way that she commits her talents to the firm and her clients. 

Linda Parks was a founding partner with Hite Fanning when it began in 2000 and brings her leadership style to the position of managing partner. Linda  practices in the areas of business transactions, banking, commercial real estate, creditors rights, and estate planning and is also a United States Chapter 7 bankruptcy trustee. She advises financial institutions on multi-million-dollar loan transactions, loan purchases and sales, contractual matters, and day-to-day operational matters.

She has served on the Washburn University School of Law Alumni Association board of governors. In 2019, the governor of Kansas appointed Parks to chair the Court of Appeals Nominating Commission for the state. She was appointed to the Blue Ribbon Commission in 2011 by the chief justice of the Kansas Supreme Court to assist with examining the state’s judicial branch and court structure. In the American Bar Association, she currently serves on the board of governors. She served in the House of Delegates from 2000-05 and 2009-15. She has served on the Steering Committee for the Nominating Committee, the Select Committee, the Commission on Homelessness and Poverty, the Commission on Mental and Physical Disability, and the Commission on Domestic and Sexual Violence. She was president of the Kansas Bar Association in 2007-08 and is a fellow of the Kansas Bar Foundation. Parks was also a founding member of the Kansas Women Attorneys Association, having served as its first president from 1994-96. KWAA awarded her the Jennie Mitchell Kellogg Attorney of Achievement Award in 2000. Parks received the Wichita Women Attorneys Association Louise Mattox Attorney of Achievement Award in 1997. 

(reprinted from https://www.washburnlaw.edu/alumni/awards/lifetime/2021.html?fbclid=IwAR1XXUdsDK58xYbJm4rFLV7cx85bSDJGSBQKSqF2U5P7o2xzVjNRcIfiO-A#parks)

RELIGIOUS EXEMPTIONS TO COVID-19 VACCINE MANDATES

The EEOC Offers Religious Exemption Guidance

The US Equal Employment Opportunity Commission (EEOC) posted updated and expanded technical assistance addressing religious exemptions to employer COVID-19 vaccine mandates.  The EEOC provided details of its view of employer obligations under Title VII when evaluating religious objections to COVID-19 vaccination mandates.  Some larger employers have been inundated with addressing protected versus unprotected claims of mandate exemptions, while still attempting to safeguard employees’ stated religious beliefs.  The EEOC’s latest updates attempt to clarify for employers how to handle accommodation requests. Here are some highlights.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  The EEOC would prefer employers ordinarily assume an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. As stated, when an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer can request additional supporting information. In that instance, employers can make inquiries into the nature or sincerity of a purported religious belief. Employees who fail to cooperate with these employer inquiries risk losing a subsequent failure to accommodate claim.

There is some burden on employees to advise their employers a conflict exists between their religious beliefs and a vaccine requirement. The employee must provide some notice to qualify for an accommodation.

Undue Hardship

After consideration of all possible reasonable accommodations, it may not be possible to accommodate all those seeking religious exemption without undue hardship.  If an employer can demonstrate undue hardship, Title VII may not require accommodation.  

The Supreme Court has held that it is an undue hardship where the cost of accommodating an employee’s religious belief is more than a “de minimus,” or minimal, cost or hardship. For example, employers can consider economic costs, workplace safety such as the spread of COVID-19 to other employees or to the public; if the employee works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public. The answer to the undue hardship question may be different for each employee.  An example is an administrative employee who can work at home versus a manual laborer that exclusively works indoors.

An assumption that a lot more employees could seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship.  However, the EEOC says that the employer may consider the cumulative cost or burden of granting accommodations to other employees which can be a significant factor for some employers. To this factor can be added the risk that an unvaccinated employee will spread COVID-19 to other employees or the general public, the nature of an employee’s workplace, whether the employee works in a solitary or group environment, and the contact the employee has with other employees or members of the public, especially medically vulnerable individuals.

Employers should remember the law does not require them to provide the employee’s preferred accommodation but can choose the one that works best for the business.  Each request should be evaluated on a case-by-case basis.

Conclusion

The EEOC guidance is somewhat helpful in its discussion of acceptable criteria to consider when evaluating requests for religious accommodation to COVID-19 mandates such as the right to request additional information from employees when there is an objective reason to doubt the religious nature or sincerity of a religious accommodation request. Further, the EEOC’s confirmation that employers may rely on the cumulative impact of multiple requests when conducting an undue hardship analysis is helpful. 

Jon Newman, Partner – Hite, Fanning & Honeyman L.L.P. 

 newman@hitefanning.com  - 316-265-7741

D. Pamela Saenz Joins the Firm as a New Associate

The firm is pleased to announce that Pam Saenz has joined us as an associate. She will primarily practice in the area of employment law, which includes corporate investigation, corporate management and worker’s compensation issues. Pam also brings her fluency in Spanish to the firm which will serve her well with international cases and clients.

Pam received her Juris Doctor from Washburn University School of Law, where she held a variety of leadership roles in the Hispanic American Law Students Association and  the Genders and Sexualities Alliance and participated on the Jessup International Law Moot Court Team. Pam also served as both a legislative intern and legal interns for several firms. Her internships allowed her to work directly with clients while also honing her research skills and allowing her to successfully compile a breadth of experiences.

Prior to law school, Pam earned her undergraduate degree from Wichita State University, studying international studies and participating in several organizations and serving as president of her women’s fraternity. 

Not only is she smart and talented, Pam has been a fun member of our team and we look forward to enjoying her company on firm outings and activities! Come by and welcome Pam to the firm!

Peter Qiu Comes on Board as an Associate

Peter Qiu joins us as an associate after spending time working as one of summer associates and we could not be more pleased. Peter will be working with the civil litigation team, which serves clients in the areas of general litigation, aviation law, oil and gas law, healthcare and business...just to name a few.  Peter is also fluent in Mandarin which makes him invaluable with international clients and cases.

After earning his Bachelor of Arts degree in Political Science from Washburn, Peter attended University of Kansas School of Law. While balancing his academic studies, he was also involved with many activities that reinforced his legal education, such as the Kansas Journal of Law and Public Policy, Mock Trial Council, Asian Law Students Association, and American Constitution Society among others. Peter offers a good combination of a strong academic understanding of law with relevant hands-on experience working for several law firms and legal organizations while in law school. Peter also studied abroad in China and Japan.  

Peter has been a good addition to the firm and has been an enthusiastic supporter of firm activities and charitable endeavors. When he isn’t working, he enjoys international travel and playing tennis, pool and gaming. We are happy to have you here, Peter!

Linda Parks elected to the Board of Governors of the American Bar Association

Managing Partner Linda Parks will be serving on the Board of Governors of the American Bar Association. We don’t mind saying that this is a very prestigious position and Hite Fanning Honeyman is proud to be the career home to Linda.

Since 1878 the American Bar Association has provided services and resources to members of the legal community, as well as a commitment to advancing the rule of law across the United States. The Board is made up of 43 of the best attorneys from throughout the nation. Congratulations to Linda!

American Bar Association: https://www.americanbar.org/groups/leadership/aba_officers/parks-linda-sue

NEW FAMILY MEDICAL LEAVE FORMS HAVE BEEN ISSUED

By Kelly J. Rundell

Employers with Family Medical Leave programs should be aware that the U. S. Department of Labor has issued new, easier-to-read forms.  Using the DOL’s model forms is optional because employers can develop their own forms that seek the same information. 

The new model Notice of Eligibility and Rights and Responsibilities form is much longer than the previous version, partially due to larger print and more check boxes to be completed.  It is, however, well-organized and provides a better explanation of how employer-provided paid leave and FML can run concurrently.  

The model medical certification forms have also been revised.  Although the forms have more boxes for the health care provider to complete, they also seek the best estimate of when the employee can return to work.  The forms clarify that FML leave is available for prenatal care and delivery, but not maternity leave.   Additionally, they include definitions of serious health conditions.  Significantly, the forms clearly allow the health care provider to check a box that there is no serious health condition.  

The DOL has also updated the model Designation Notice.  It has also doubled in length, but includes return to work requirements and provides information on concurrent accrued leave and FML.  These forms also give space for employers to explain missing or insufficient information and the deadline for providing it.   

All of the new forms have an expiration date of June 30, 2023 and are available on the Department of Labor website, https://www.dol.gov/agencies/whd/fmla/forms

Jon Newman appointed to Client Protection Fund Commission

We are pleased to announce that Jon Newman was appointed by Justice Luckert to serve a 3 year term on the Client Protection Fund Commission.
The fund was created to offer compensation to clients who suffer economic loss as a result of dishonest actions by an active Kansas-licensed lawyer. Those actions must occur during the course of a lawyer-client relationship and covers most cases in which lawyers have taken for their own use, or misappropriated, clients' money or other property entrusted to them.

Welcome Scott M. Hill Kansas Bar Foundation President 2020-201

Kansas Bar Foundation Facebook Announcement: Welcome Scott M. Hill Kansas Bar Foundation President 2020-201

MY EMPLOYEES ARE COMING BACK TO WORK. NOW WHAT?

As stay-at-home orders and other restrictions change, employers will be faced with decisions effecting safety and liability.  The Americans with Disabilities Act (ADA) must be complied with when returning employees to work.  

CAN I SCREEN EMPLOYEES FOR COVID-19 WHEN THEY RETURN TO WORK?  

Employers comply with the ADA if screening is consistent with advice from the CDC and public health authorities. The Equal Employment Opportunity Commission (EEOC) confirms employers can request certain health information from workers during the COVID-19 outbreak.  

This includes continuing to take temperatures and asking about symptoms of those entering the workplace.  However, employers should avoid disparate treatment based upon protected characteristics in screening decisions.  

Employers should limit questions to symptoms discussed by the CDC and other public health authorities.  Specifically, employers can inquire if employees are experiencing fever, chills, cough, shortness of breath, or a sore throat.  Additional symptoms have been added by the CDC such as new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.   

The same rules apply in terms of maintaining all health information as a confidential medical record in compliance with the Americans with Disabilities Act.

COVID-19 Test Screening

The EEOC says an employer can administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace.  But, proceed with caution.  This of course assumes you would have access to sufficient testing to begin with, which is likely an issue.  Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

CAN AN EMPLOYER ASK EMPLOYEES IF THEY HAVE UNDERLYING HEALTH CONDITIONS THAT MAY PLACE THEM AT GREATER RISK?

Not if they did not bring it up first.  If an employee brings up their underlying condition that necessitates a change to meet a medical need, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

WHAT DO I DO IF AN EMPLOYEE WITH A DISABILITY NEEDS A RELATED ACCOMMODATION?  

The CDC identifies several medical conditions that might place individuals at higher risk of severe illness from COVID-19.  If an employee has such a condition and requests accommodation you should have an interactive process. The EEOC says you can discuss with the employee:

Some conditions may complicate use of protective equipment.  For example, Bob is allergic to latex.  Sally’s respiratory condition prohibits certain kinds of masks.  As an employer, you should have an interactive process to discuss any requests for accommodations and provide an alternative if feasible if it is not a true undue hardship to the operation of your business. If an employer knows the employee has one of these conditions but they do not request accommodation, no action is mandated by the ADA.

Prohibiting employees with underlying conditions from working at all is held to a much higher standard.  The ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him or her at “higher risk for severe illness” if the employee gets COVID-19. 

Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation.  Again, this is a high standard to meet.  The EEOC says a direct threat assessment cannot be based solely on the condition being on the CDC’s list.  

The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  The severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled) might be considered.  Even if you think there is a direct threat an interactive accommodation discussion is still required.  Remember, the EEOC lists telework, leave or reassignment as possible accommodations.

WHAT TYPES OF ACCOMMODATIONS ARE THERE?

The EEOC provides these accommodation ideas:

PERSONAL PROTECTIVE EQUIPMENT 

We are all painfully aware of the acronym, PPE, not to be confused with PPP.  An employer may require employees to work in PPE and to observe infection control practices  like regular hand washing and social distancing.  

CAN EMPLOYEES REFUSE TO WORK?

If they can work and are not entitled to certain leave, probably not.  They can request an accommodation if they have an underlying condition as discussed above.  

OSHA touches upon dangerous conditions.  According to OSHA:  If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, the employee has brought the condition to the attention of his or her employer, they may have a legal right to refuse to work in a situation in which they  would be exposed to the hazard. 

According to OSHA, an employee’s right to refuse to do a task is protected if all the following conditions are met:

OSHA drafted an Interim Enforcement Response Plan for Coronavirus Disease 2019 which can be found at:  https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19

Contact one of the attorneys at Hite, Fanning & Honeyman LLP for further assistance

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-2014

Newman@hitefanning.com

Jim Robinson Named to Steering Committee of Strengthening People and Revitalizing Kansas (SPARK) Task Force

Gov. Laura Kelly recently named Jim Robinson to the Steering Committee of her Strengthening People and Revitalizing Kansas (SPARK) Task Force which will advise her on the state's economic recovery during the COVID-19 emergency.

The Recovery Office will be responsible for statewide distribution of at least $1.2 billion in federal economic recovery funding, serving both urban and rural areas across the state.

PROTECTING FROM DISCOVERY AN IN-HOUSE COUNSEL’S INVESTIGATION

Download PDF of this Article

by F. James Robinson

Not every company’s communication with its in-house counsel is privileged. Only confidential communications which involve the requesting or giving of legal advice are privileged. Dartez v. Peters, No. 15-3255-EFM-GEB,2019 U.S. Dist. LEXIS 123178 *43, 2019 WL 3318185 (D. Kan. July 24, 2019). There must be a clear connection “between ‘the subject of the communication and the rendering of legal advice’ for the attorney-client privilege to shield the communication from disclosure.” Id. Further, “legal advice must predominate for the communication to be protected. The privilege does not apply where the legal advice is merely incidental to business advice.” Id. 

There is no presumption “that a company’s communications with counsel are privileged.” EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017), opinion withdrawn and superseded, 876 F.3d 690, 695-97 (5th Cir. 2017). The party asserting the attorney-client privilege and work-product protection, bears the burden to show that either the privilege or the protection, or both, apply. Dartez 2019 U.S. Dist. LEXIS 123178 *43. 

For the attorney-client privilege to apply, Kansas courts require a “clear showing” that the attorney was acting in his or her professional legal capacity. Id. This starts with a “detailed and specific” showing in the privilege log. Id. at **43-44. But the mere conclusory assertion of an attorney-client privilege in the privilege log, “without more information, is insufficient.” Id. at *49. The privilege’s proponent must provide “sufficient information to enable the court to determine whether each element’ of the asserted privilege is satisfied.” Id. at 45. This burden can be met “only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege.” Id. at *44. One court put the same notion this way: “[c]alling the lawyer’s advice as ‘legal’ or ‘business advice’ does not help in reaching a conclusion; it is the conclusion.” United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996).

In federal court, work product protection for the company’s investigation materials depends on whether “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.” Fed. R. Civ. P. 26(b)(3). 

Company materials prepared in the ordinary course of business or investigative work are not protected unless they were done under the supervision of an attorney in preparation “for the real and imminent threat of litigation or trial.” Kannaday v. Ball, 292 F.R.D. 640, 648 (D. Kan. 2013). That means there must be a real and substantial probability that litigation will occur at the time the materials were prepared. Id. Also, courts look “to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work-product doctrine.” Id.

In Dartez, a police brutality case, the plaintiff had issued a records subpoena to the Kansas Highway Patrol for an internal investigation of the Patrol’s Special Response Team. The Patrol responded and logged a 98-page report written by the Patrol’s outside counsel for the Patrol’s Chief Legal Counsel, asserting it was done in anticipation of litigation. Dartez, at **37-38. After an in camera review the court decided the report’s main purpose was to evaluate the Special Response Team’s “operations to make recommendations for improvement and to ensure compliance with current law enforcement practice.” Id. at **49-52.  The court found one area in the report that “might come close to being legal advice.” Nonetheless, the court decided it was “incidental to the overall business purpose of the Report.” Id. at *50.

As for whether the report was protected by the work product doctrine, the court noted the Patrol failed to provide any details about anticipated litigation. The court decided, “there is no way to know whether the threat of litigation was ‘real’ and ‘imminent’ at the time the document was prepared.” Id. at *47. The court ordered that the report be produced to the plaintiff.

An adversary’s threats to sue can support a work product claim, but that is not always so. In Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM, 2019 U.S. Dist. LEXIS 176497 (D. Kan. Oct. 8, 2019), the court decided that “[w]here parties continue to resolve disagreements amicably, litigation is ‘not a substantial and significant threat.’”  2019 U.S. Dist. LEXIS 176497 *22. 

In sum, even when a company is negotiating to resolve a dispute amicably, to ensure that the attorney-client privilege and work product protection applies the company should internally document that its in-house counsel is conducting an investigation in anticipation of litigation and for the purposes of providing legal advice to the company.  If the in-house counsel is providing business advice it should be documented separately from the attorney’s legal advice. Putting business advice and legal advice in the same document risks that a redacted version will be produced in litigation during discovery.

REGULATIONS ISSUED BY U.S. DEPARTMENT OF LABOR FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) ON APRIL 1 PROVIDE INVALUABLE GUIDANCE

The Department of Labor (DOL) has issued regulations that provide guidance and examples to help explain FFCRA.  https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf

Below are some highlights.  

Emergency Paid Sick Leave Act (EPSLA)

The Emergency Paid Sick Leave Act (EPSLA) requires employers to provide paid sick leave to employees who are unable to work for six reasons having to do with COVID-19 where the employee:

(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 

Example:  coffee shop closes due to a downturn in business related to COVID-19, it would no longer have any work for its employees.  Cashier is subject to a stay-at-home order and would not be able to work even if he were not required to stay at home.  He may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment. He may be eligible for state unemployment

(2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 

(3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 

(4) is caring for an individual who is subject to an order as described in (1), or who has been advised as described in (2); 

(5) is caring for his or her son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 related reasons; or 

(6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

What Employees Get

Full time employees get up to 80 hours paid sick leave.  For part-time it is an average of two weeks hours worked, although special rules may apply to varying schedules.  

Paid sick leave is at regular rate of pay rate as calculated by the FLSA or minimum wage if greater, if taking leave for items (1) through (3) above.  If minimum wage this is $511 per day or $5,110 in the aggregate.  If leave is for any other reasons such as items (3) through (6) above, then it is paid An employee who takes paid sick leave for any other qualifying reason under the EPSLA is entitled to be paid two-thirds of that amount, up to $200 per day and $2,000 in the aggregate.

The amount an employer is required to pay is capped at $511 per day of paid sick leave taken and $5,110 in total per covered employee for all paid sick leave pay. Furthermore, where an employee is taking paid sick leave at two-thirds pay, the amount of pay is subject to a lower cap of $200 per day of leave and $2,000 in total per covered employee for all paid sick leave that is paid at two-thirds pay.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

The EFMLEA requires employers to provide expanded paid family and medical leave to eligible employees who are unable to work because the employee is caring for his or her son or daughter whose school or place of care is closed or whose childcare provider is unavailable due to a public health emergency, defined as an emergency with respect to COVID-19, declared by a Federal, State, or local authority. Private employers with fewer than 500 employees must comply with 9 the EFMLEA, although the Secretary has the authority to exempt by rulemaking employers with fewer than 50 employees from EFMLEA’s requirements when compliance with the EFMLEA would “jeopardize the viability of the business as a going concern.”

An employee is entitled to take up to twelve weeks of leave for the purpose described in the EFMLEA. The first two weeks (usually ten workdays) of this leave are unpaid, though an employee may substitute paid sick leave under the EPSLA or paid leave under the employer’s preexisting policies for these two weeks of unpaid leave.

The following period of up to ten weeks of expanded family and medical leave must be paid. Specifically, after the first two weeks of leave, expanded family and medical leave under the FFCRA must be paid at two-thirds the employee’s regular rate of pay.  

For each day of leave, the employee receives compensation based on the number of hours he or she would otherwise be normally scheduled to work, although special rules may apply to employees with varying schedules.

 An eligible employee may elect to use, or an employer may require that an employee use, such expanded family and medical leave concurrently with any leave offered under the employer’s policies that would be available for the employee to take to care for his or her child, such as vacation or personal leave or paid time off. The total EFMLEA payment per employee for this ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.

Thus, paid sick leave and expanded family and medical leave are designed to work in tandem to provide continuous income for an employee to care for his or her child whose school or place of care is closed, or whose child care provider is unavailable, for a COVID-19 related reason. Put another way, the reason for an unpaid initial period of expanded family and medical leave is because an eligible employee already may concurrently use paid sick leave for the same reason and get paid at the same rate.

Coverage

All employees employed by a covered employer are eligible to take paid sick leave under the EPSLA regardless of their duration of employment, and all employees who have been employed by a covered employer for at least thirty calendar 30 days are eligible to take expanded family and medical leave under the EFMLEA, subject to the exceptions described.  An employee is considered to have been employed for at least thirty calendar days for purposes of EFMLEA eligibility if the employer had the employee on its payroll for the thirty calendar days immediately prior to the day that the employee’s leave would begin.

Intermittent Leave

FMLA intermittent leave rules are modified as the employee and employer must agree. Absent agreement, no leave under the FFCRA may be taken intermittently.  While not required, this agreement is best memorialized in writing.  However, if an employer directs or allows an employee to telework, subject to an agreement between the employer and employee, the employee may take paid sick leave or expanded family and medical leave intermittently, in any agreed increment of time, while the employee is teleworking.

What is full time

Department defines a full-time employee as an employee who is normally scheduled to work at least 40 hours each workweek or for an employee who does not have a normal weekly schedule may also be a full-time employee if he or she is scheduled to work, on average, at least 40 hours each workweek. (averaged over six-month period).

How is son or daughter defined

The definition under EFMLEA for “qualifying need related to a public health emergency” as a need for leave “to care for the son or daughter under 18 years of age of such employee”.  The FMLA  definition of  “son or daughter” includes children 18 years of age or older and incapable of self-care because of a mental or physical disability.  The same definition is used for EPSLA.

Telework

Telework is defined broadly.  The regulations point outtelework is no less work than if it were performed at an employer’s worksite. As a result, employees who are teleworking for COVID-19 related reasons must always record—and be compensated for—all hours actually worked, including overtime, in accordance with the requirements of the FLSA. However, an employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons, unless the employer knew or should have known about such telework.  

The DOL appears to indicate that the continuous workday principal does not apply.  Normally, the law would indicate that all time between performance of the first compensable and last compensable principal activities is compensable work time.  Here, the DOL says an employer allowing such flexibility during the COVID-19 pandemic shall not be required to count as hours worked all time between the first and last principal activity. 

Example:

Employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. This allows an employee, for example, to help teach children whose school is closed or assist the employee’s parents who are temporarily living with the family, reserving work times when there are fewer distractions. Of course, the employer must compensate the employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between the employee’s first principal activity at 7 a.m. and last at 9 p.m.

Employee Notice of Need for Leave

for paid sick leave or expanded family and medical leave to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons, an employer may 50 require employees to follow reasonable notice procedures as soon as practicable after the first workday or portion of a workday for which an employee receives paid sick leave in order to continue to receive such leave. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave

Documentation of Need for Leave

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave to include: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.  Further, the employee must provide the name of the governmental agency that, for example, issued the isolation order or the name of the health care provider who advised, for example, self-quarantine.  For care of child issues, the employee must provide the name of the child, school or day care provider, and statement that no other suitable person is available.  

Return to Work

In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave in the same manner that an employee would be returned to work after FMLA leave.  The new statute does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. The employer must be able to demonstrate that the employee would have been laid off even if he or she had not taken leave. This provision tracks the existing provision under the FMLA in 29 CFR 825.216. The employer has the same burden of proof to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

The FMLA’s restoration provision does not apply to an employer who has fewer than twenty-five employees if all four of the following conditions are met: 

(a) The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose childcare provider was unavailable; 

(b) The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave; 

(c) The employer made reasonable efforts to restore the employee to the same or an equivalent position; and

d) If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available. The period of time is specified to be one year beginning either on the date the leave related to COVID-19 reasons concludes or the date twelve weeks after the employee’s leave began, whichever is earlier.

Contact one of the attorneys at Hite, Fanning & Honeyman LLP for further assistance

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-0214

Newman@hitefanning.com

COVID-19 IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT

The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  This includes the requirement for reasonable accommodation and rules about medical examinations and inquiries. The EEOC updated their Guidance previously drafted in 2009 in response to the H1Ni virous, incorporating changes relevant to COVID-19.  The EEOC provides their position on issues related to the American’s with Disabilities Act (ADA).  

The bottom line is that, according to the EEOC, the ADA does not interfere with an employer’s efforts to follow the advice of the CDC, state and local public health authorities pertaining to steps to take in the workplace because of COVID-19 . 

The EEOC has clarified when the employer can ask certain question, send employees home and ask for doctor’s opinions.  

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

The EEOC states that during COVID-19 pandemic, ADA-covered employers may ask if they are experiencing COVID-19 such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

Usually, taking a body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, the EEOC says employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? 

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty? 

Yes. The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee will pose a direct threat due to a medical condition.  The EEOC says the current COVID-19 status support “a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”      

 As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. New approaches may be necessary given the quickly changing landscape of testing protocols, availability of testing and healthcare providers.  The EEOC references possible reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus. 

If you wish to further explore these issues check out the EEOC document at: https://www.eeoc.gov/facts/pandemic_flu.html#q16

Also, contact one of the attorneys at Hite, Fanning & Honeyman LLP for further assistance

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-0214

Newman@hitefanning.com

WHAT ABOUT SMALL BUSINESSES AND THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT?

by Jon Newman

The Department of Labor has provided some guidance on application of FFCRA to small business of less than 50 employees.  

A small business is an employer, including a religious or nonprofit organization, with fewer than 50 employees.

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing 

(a) paid sick leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons and

 (b) expanded family and medical leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons 

This is when doing so would jeopardize the viability of the small business as a going concern

A small business may claim this exemption if an authorized officer of the business has determined one of the following:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  1. employer employs fewer than 50 employees;
  2. leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons; and
  3. an authorized officer of the business has determined that at least one of the three conditions described in numbers 1-3 above is satisfied.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. 

The Department of Labor simply says to elect the small business exemption, businesses should document why their business with fewer than 50 employees meets the criteria set forth by the Department.  This process will be addressed in more detail in forthcoming regulations.  However, the Department says not to send any materials them at this point.

Jon Newman

316-269-0214

Newman@hitefanning.com

THE 30-DAY DEADLINE IN FEDERAL COURT TO FILE A MOTION TO COMPEL DISCOVERY MAY BE RELAXED WHILE THE PARTIES ARE MEETING AND CONFERING

Download PDF of this Article

by F. James Robinson

By rule, federal courts in the District of Kansas require that a motion to compel discovery be “filed and served within 30 days of the default or service of the response, answer, or objection that is the subject of the motion, unless the court extends the time for filing such motion for good cause. Otherwise, the objection to the default, response, answer, or objection is deemed waived.” D. Kan. Rule 37.1(b). 

This rule may not be as mechanical as it seems.

The rule’s purpose is to “ensure the court can address discovery disputes while they are still fresh, and in turn expedite litigation.” Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC-KGS, 2015 U.S. Dist. LEXIS 193782, 2015 WL 13047860 (D. Kan. Mar. 31, 2015). Black & Veatch and other decisions in the district confirm that the triggering event is the date of the challenged discovery response or the discovery default.  Black & Veatch interpreted the 30-day period as beginning when specific information first leading to a dispute is discovered. That deadline is not tolled “while the parties are engaged in efforts to resolve the discovery dispute without judicial intervention.” However, the parties may “request, prior to expiration, an extension of the deadline to file a motion to compel with respect to any discovery dispute upon which the parties are still conferring.” 

On April 11, 2019, in Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM (D. Kan.), a federal magistrate judge denied the defendant’s unopposed motion to extend the deadline. (ECF No. 77) The judge’s order acknowledged “that some judges in this District prefer that parties file such motions on or before the 30-day time period set forth in D. Kan. Rule 37.1(b) expires—e.g., when the parties are continuing to meet and confer to resolve discovery disputes.” Nonetheless, the judge wrote, “[t]he undersigned does not interpret D. Kan. Rule 37.1(b) to require parties to file a motion for extension of time if they are engaged in meeting and conferring.” The judge continued, “[c]ategorical motions for extensions . . . are generally hypothetical and unmeritorious in the abstract.” The judge concluded, “[i]f and when a party files a motion to compel after the 30-day deadline set forth in D. Kan. Rule 37.1(b), the undersigned will, however, expect the party to demonstrate good cause for the late filing by setting forth the parties' diligence in attempting to resolve the discovery dispute at issue.”

In a later, January 29, 2020, order in that case the judge found the plaintiff’s motion to compel was untimely because the defendant’s alleged failure over a period 

HILBURN V. ENERPIPE AND ITS IMPACT ON STATUTORY NON-ECONOMIC DAMAGES CAPS IN KANSAS TORT ACTIONS

Download PDF of this Article

by F. James Robinson

On June 14, 2019, the Kansas Supreme Court in Hilburn v. Enerpipe Ltd (No. 112,765) struck down K.S.A. 60-19a02, which capped non-economic damages in personal injury actions. 

Hilburn was an automobile negligence case. The jury awarded the injured plaintiff $335,000, comprising $33,490.86 in economic damages for medical expenses and $301,509.14 in non-economic “pain and suffering” damages. The trial court, applying the K.S.A. 60-19a02 cap reduced the non-economic damages award to $250,000. [Note: In 2014, the Legislature increased the cap to $325,000 and allowed for an increase to $350,000 after July 1, 2022.]

A divided Court held that the statutory cap violates the “right to trial by jury” in Section 5 of the Kansas Bill of Rights by intruding “upon the jury’s determination of the compensation owed to redress her injury.” The Court rejected its own quid pro quo test in Miller v. Johnson 295 Kan. 636 (2012) for deciding the constitutionality of a statutory non-economic damages cap.  

The Hilburn decision creates uncertainty about the future of other statutory damage caps. Miller was a medical negligence case. Although the Hilburn Court rejected the Miller Court’s rationale, the Hilburn Court did not decide the constitutionality of the cap in a medical negligence case. Historically, Kansas has considered statutory caps for medical negligence separately from those for other personal injury actions. However, the plaintiff’s bar argues that since 1988, Kansas has not statutorily differentiated between the caps.

Given this uncertainty, health care providers may experience increasing medical liability insurance premiums. Cases are now working their ways through courts that will decide whether the Hilburn holding is applied in medical negligence cases. 

On February 13, 2020, the Kansas House Committee on Judiciary introduced House Bill No. 2673 that would fast track cases. If passed, the Kansas Supreme Court would have original jurisdiction to decide “the construction and validity of K.S.A. 60-19a02, and amendments thereto, or any other law that creates a limitation in a medical malpractice liability action on a claim for noneconomic loss, following the decision in the case of Hilburn v. Enerpipe Ltd., No. 112,765, June 14, 2019.” The bill is assigned to the House Appropriations Committee.

Also, the Legislature has studied the possibility of amending the Kansas Constitution to reject the Hilburn holding.  To date no resolution has been introduced for such an amendment.