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Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

Tennessee Medical Association & Bass, Berry & Sims

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GDPR Top 5 Actions You Should Take Now

The EU's General Data Protection Regulation (GDPR) went into effect on May 25th. As most organizations are aware, the GDPR applies not only to EU businesses but also many companies in the U.S. While the deadline is quickly approaching, most organizations are still grappling with the implications of the regulation on their business. Even if your readiness efforts are behind the curve, the GDPR Top 5 Actions You Should Take NOW will help you begin your efforts towards compliance and help mitigate your organization's risk in the short-term.

Click here to download the checklist.

Labor Talk Blog: EEOC Continues Attack on Employer Practices that "Automatically" Disqualify


June 27, 2013

A trucking company has a practice of not returning any trucker to a driver position if that trucker has admitted to being an alcoholic, even if the trucker completes a treatment program. The EEOC sued on behalf of a trucker and challenged this practice. In this instance, however, the trucker did not complete a treatment program. He explained that he did not complete a program since it would be futile – he could not get his job back anyway.

In a recent ruling, a District Judge in Arkansas ruled that the trucking company's practice of automatic disqualification of the alcoholic trucker violated the Americans with Disabilities Act ("ADA"). The Court ruled that a jury will have to decide the merits of the specific driver's claim, but the Court entered an injunction against the trucking company from further use of its practice. EEOC v. Old Dominion Freight Line, Inc. (W.D. Ark. June 24, 2013) found here.

The trucking company claimed that its practice of not returning an alcoholic trucker to a driver position was necessary, and not unlawful under the ADA's "direct threat" defense. That is, the company argued that the driver was a direct threat to himself or to others given the safety-sensitive nature of his over-the-road driving duties, and given his alcoholism, and given that a relapse could occur while he was carrying out his job functions alone and on the road.

The Court disagreed, primarily because the company did not conduct any "individualized assessment" of the trucker's present ability to safely perform his job. That individualized assessment is required for an employer to establish the "direct threat" defense. The Court noted that there was no such assessment, and there was no "interactive process" involving the trucker in discussing options that may be available to address the safety concerns. The Court even noted that the employer could have installed a breathalyzer device on the truck to address the relapse concern.

Savvy employers know that the EEOC strongly frowns on any form of automatic disqualifiers that might impact protected groups. Previous posts have noted such concerns with automatic terminations after an employee has exhausted a leave of absence (see post here) or automatic disqualification for a past criminal conviction (see post here).

Once again, employers should:

  • Eliminate any "automatic" termination or disqualification language from any policy that could adversely impact protected groups.
  • Eliminate any automatic termination or disqualification practice in evaluating employees returning from leave, including any alcohol or substance abuse treatment.
    • An employer must conduct a "case-by-case" analysis of the specifics of each employee's circumstances and must invite the employee into that process as part of an "interactive" discussion.
    • If there are safety concerns, the interactive process should identify the safety concerns and invite discussion of alternatives for addressing the concerns.
    • The Court noted that the safety concerns were legitimate. In fact, the safety concerns may have prevailed over the alternatives to address them. But since the employer did not conduct any detailed evaluation in this situation, the employer had no basis to argue that its safety concerns should prevail.
    • For example, suggested practices could have included the use of the breathalyzer device, or periodic random testing, or more limited trucking runs (if available).
  • Employers should remain mindful that the ADA does not protect an employee's misconduct caused by the substance abuse, and neither does the Family and Medical Leave Act.
    • An employer would be wise to evaluate, at the time leave is requested for the substance abuse treatment, whether any misconduct occurred that would result in termination or would disqualify the employee from reinstatement at the end of the needed leave.

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