“A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity.”

In looking at this issue, it helps to look at how an investigator from the Maine Human Rights Commission would evaluate medical inquiries.  In a recent case, the investigator found that the employee was fired for a non-discriminatory reason BUT that there was a violation of the Act due exceeding what was permissible for medical inquiries.  In making the decision that the employer had gone too far with its medical inquiries, the investigator used as guidance information from the federal anti-discrimination agency, the EEOC.  In particular, the investigator relied on the EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations” (2002).  That document is easily accessible on line at www.eeoc.gov.

Using that Enforcement Guidance document as a guide, the investigator determined that an “employer may require an employee to provide documentation that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation.  This means that, in most circumstances, an employer cannot ask for an employee’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.”  The case being dealt with was one where the employee was out of work because of a disability and the question was what the employer had to do in terms of evaluating whether there was a reasonable accommodation available that would allow the employee to return to work.  Rather than just ask the employee’s treatment provider whether the employee could do the essential functions of the job and what accommodation was needed (this is where having a job description comes in handy), the employer sought a significant part of the employee’s medical background.

The safest practice is to take the employee’s job description, give it to the employee’s medical provider, and ask them to detail which portions of the job that the employee can do, which ones the employee cannot do, and what if any reasonable accommodations would allow the employee to perform their job.  A request may also ask that the medical provider substantiate why the requested accommodation is needed, if the employee has requested a particular solution.

As the Commission investigator laid out in the legal background of her investigator’s report, “The [EEOC] has previously stated that when an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation.  However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation.”  To help avoid retaliation claims, then, an employer should evaluate the need for medical information before insisting on it.  Look at whether the information is really necessary to figure out what kind of accommodation the employee needs to do the items in their job description.  Ask the treatment provider to evaluate the ability to do the job and the accommodation needed and avoid playing doctor.  And then engage in the back and forth discussion with the employee that is so critical to reducing claims against employers in this area – the Commission and courts both look to see what good faith effort the employer made to come up with some resolution of the problem.

Sometimes there are special circumstances that allow further inquiry about an employee’s medical condition or disability.  For example, the employee may provide documentation that is insufficient to determine what kind of accommodation would work or determine whether the employee can do the job.  As the investigator in this actual case before the Commission explained, “Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.  Documentation also might be insufficient where, for example:  (1) the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or (3) other factors indicate that the information provided is not credible or is fraudulent.  If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.  Any medical examination conducted by the employer’s health care professional must be job-related and consistent with business necessity.  This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation.”  The important message from this passage is that medical examinations conducted by the employer’s health care professional must be job-related and consistent with business necessity.  Was the employer focused on the employee’s health and disability or just on what was needed for the job?  Keep the information sought limited to only what is needed and document that you didn’t go any further than that.

Once an employer has an employee’s medical information, it must make sure that that information is kept apart from general personnel files as separate, confidential, medical records, available only under limited conditions.  In other words, if an employer has medical information about an employee, the employer must create a separate medical file for that employee and keep it in a place separate from the personnel files where only certain persons have access to that information.  The more separate the files, the lower the risk that an employee will be able to claim, down the road, that medical information was considered in making a decision to terminate.

Disclosure of medical information is permitted in the following circumstances:

•           supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;

•           first aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment;

•           employers may give information to workers’ compensation offices or may use the information for insurance purposes.

This article is not legal advice but should be considered as general guidance in the area of requesting medical information about employees.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  To contact her, please email, write, or fax Rebecca Webber at P.O. Box 190, Auburn, Maine 04212-0190, Fax 207-784-1981, email rwebber@lcwlaw.com.

The definition of disability was clarified several years ago, adding in a list of categories that are automatically considered disabilities to make it easier to figure out if a person is even protected by the Maine Human Rights at all.  That definition follows.  Note that it begins with the familiar “substantially limits one or more of a person’s major life activities” language (which never did provide much helpful guidance) but goes on to add some other more specific categories plus a list of conditions that automatically qualify as protected disabilities.  Note also that determining whether a disability exists is done without taking into account devices such as hearing aids or medications, and that there are some conditions and behaviors that are not covered.  Here is the definition straight from the Maine Human Rights Act:

1.   Physical or mental disability, defined.  ”Physical or mental disability” means:

A.  A physical or mental impairment that:

(1) Substantially limits one or more of a person’s major life activities;

(2) Significantly impairs physical or mental health; or

(3) Requires special education, vocational rehabilitation or related services; [2007, c. 385, §3 (NEW).]

B. Without regard to severity unless otherwise indicated: absent, artificial or replacement limbs, hands, feet or vital organs; alcoholism; amyotrophic lateral sclerosis; bipolar disorder; blindness or abnormal vision loss; cancer; cerebral palsy; chronic obstructive pulmonary disease; Crohn’s disease; cystic fibrosis; deafness or abnormal hearing loss; diabetes; substantial disfigurement; epilepsy; heart disease; HIV or AIDS; kidney or renal diseases; lupus; major depressive disorder; mastectomy; mental retardation; multiple sclerosis; muscular dystrophy; paralysis; Parkinson’s disease; pervasive developmental disorders; rheumatoid arthritis; schizophrenia; and acquired brain injury; [2007, c. 385, §3 (NEW).]

C. With respect to an individual, having a record of any of the conditions in paragraph A or B; or [2007, c. 385, §3 (NEW).]

D. With respect to an individual, being regarded as having or likely to develop any of the conditions in paragraph A or B. [2007, c. 385, §3 (NEW).][ 2007, c. 385, §3 (NEW) .]

2.  Additional terms.  For purposes of this section:

A. The existence of a physical or mental disability is determined without regard to the ameliorative effects of mitigating measures such as medication, auxiliary aids or prosthetic devices; and [2007, c. 385, §3 (NEW).]

B. “Significantly impairs physical or mental health” means having an actual or expected duration of more than 6 months and impairing health to a significant extent as compared to what is ordinarily experienced in the general population. [2007, c. 385, §3 (NEW).]

[ 2007, c. 385, §3 (NEW) .]

3.  Exceptions.  ”Physical or mental disability” does not include:

A. Pedophilia, exhibitionism, voyeurism, sexual behavior disorders, compulsive gambling, kleptomania, pyromania or tobacco smoking; [2007, c. 385, §3 (NEW).]

B. Any condition covered under section 4553, subsection 9-C; or [2007, c. 385, §3 (NEW).]

C. Psychoactive substance use disorders resulting from current illegal use of drugs, although this may not be construed to exclude an individual who:

(1) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) Is participating in a supervised rehabilitation program and is no longer engaging in such use;

(3) Is erroneously regarded as engaging in such use, but is not engaging in such use; or

(4) In the context of a reasonable accommodation in employment, is seeking treatment or has successfully completed treatment. [2007, c. 385, §3 (NEW).]

5 M.R.S.A.§§4553(2)(E), 4572(2).

Generally speaking, it is safest to assume the employee is disabled and look at whether an accommodation makes sense.  Safest means the least likely to lead to litigation.  In addition, even if an accommodation is not legally required, if it allows a good employee to continue working, it makes sense.  There are probably any number of accommodations that make sense even if not legally required, for morale reasons and keeping turnover low, among others. That being said, if the possible accommodations are unrealistic or it really is questionable that the employee is disabled, go through the above language and see if that employee can be excluded.

Assuming the employee is disabled as defined by this law, an employer is not required to provide an accommodation that isn’t requested, though there is nothing wrong with providing one if it would help the employee do the job better.  The key to avoiding liability is having a back and forth discussion with the employee about what would work and be reasonable.  When the employer makes an effort like that (including in the area of religious accommodation too), that effort goes a long way with any investigator or court.  The requested accommodation must be one that allows the employee to do the essential functions of (the heart of) their job.  It is not a reasonable accommodation to excuse an employee from an essential part of their job altogether.  That is, while an employer can choose to do that, they are not required to.

The term “qualified individual with a disability” means “an individual with a physical or mental disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.”  5 M.R.S.A. §4553(8-D). Examples of “reasonable accommodations” include, but are not limited to, making facilities accessible,  job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, and the provision of qualified readers or interpreters. 5 M.R.S.A. § 4553(9-B).

Investigators for the Maine Human Rights Commission have a set pattern for analyzing claims of failure to provide a reasonable accommodation. Investigator decisions in cases where the Commission found reasonable grounds to believe discrimination occurred are posted on the Commission’s website, which can be helpful to look at.  As one of those decisions laid out the test:  ”To establish this claim, it is not necessary for Complainant to prove intent to discriminate on the basis of  disability.  See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,264 (1st Cir.1999).  Rather, Complainant must show (1) that he is a “qualified individual with a disability” within the meaning of the MHRA; (2) that Respondent, despite knowing of Complainant’s physical or mental limitations, did not reasonably accommodate those limitations; and (3) that Respondent’s failure to do so affected the terms, conditions, or privileges of Complainant’s employment.”

In discussing the process that should occur, the investigator went on to state:  ”Generally, it is Complainant’s responsibility to request a reasonable accommodation.  See Reed v. Lepage Bakeries, Inc., 244 F.3d254, 261 (1st. Cir.2001).  It is Respondent’s burden to show that no reasonable accommodation exists or that the proposed accommodation would cause an ‘undue hardship.’  See Plourde v. Scott Paper Co., 522 A.2d 1257, 1261 (Me 1989); Me. Hum. Rights Comm’n Reg. 3.08(D)(1)(July 17, 1999).”  Showing an undue hardship is a tougher test in disability cases than in religious accommodation cases.  The employer should not only make sure to have a lot of back and forth discussion with the employee but should also document that that discussion occurred and should investigate different options and document the options investigated.

The steps to take when faced with a request for an accommodation are discussed at length by the federal version of the Maine Human Rights Commission, which is the Equal Employment Opportunity Commission (“EEOC”).  The EEOC has tremendous resources at its website at www.eeoc.gov. Regarding an employer’s obligation to engage in an “interactive process” to identify an appropriate accommodation, the EEOC recommends the following:

(1)  Analyze the particular job involved and determine its purpose and essential functions;

(2)  Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

(3)  In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4)  Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

29 C.F.R. § 1630.9, App.

In performing these steps, the employer must be careful not to ask for more information about the employee’s disability than is necessary.  As the state regulations put it, for persons already employed (as opposed to pre-employment inquiries), 5 M.R.S.A. § 4572 (2)(D) states the following:

“A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity.”

As the federal government phrases it in the EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations” (2002):

a) An employer may require an employee to provide documentation that is sufficient to substantiate that s/he has a disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation.  This means that, in most circumstances, an employer cannot ask for an employee’s complete medical record because it is likely to contain information unrelated to the disability at issue and the need for accommodation.

b) Documentation is sufficient if it:  (1) describes the nature, severity and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and (2) substantiates why the requested reasonable accommodation is needed.

c) Documentation is insufficient if it does not specify the existence of a disability and explain the need for reasonable accommodation.  Documentation also might be insufficient where, for example:  (1) the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or (3) other factors indicate that the information provided is not credible or is fraudulent.  If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.  Any medical examination conducted by the employer’s health care professional must be job-related and consistent with business necessity.  This means that the examination must be limited to determining the existence of a disability and the functional limitations that require reasonable accommodation.

d) When an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to  a medical examination could be considered retaliation.   However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation.

In some cases, the Commission has found that the employer did not have to provide an accommodation and acted appropriately in disciplining the employee or letting them go but asked for too much medical information and violated the Maine Human Rights Act and ADA in that way. Requests for medical information are complicated by the fact that there are different standards under family medical leave act laws and workers’ compensation laws.  If there is a mantra to remember, it is to ask for only what is needed to decide what accommodation to provide and . . . stop there.

This article is not legal advice but should be considered as general guidance in the area of requests for reasonable accommodation by an employee with a disability.  Rebecca Webber is an employment and commercial trial attorney at Linnell, Choate & Webber in Auburn, Maine.  You can contact her at 784-4563.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.

Termination of Leases Without Termination or Notice Language

Leases without specific termination or notice language may now be terminated with proper notice.  This change was the result of a delayed reaction to an almost 30-year-old Law Court case, Rubin v. Josephson, 478 A.2d 665 (Me. 1984).  The Rubin case held that, when a residential lease does not contain termination language, the landlord may not use the tenancy-at-will provisions of state law to terminate the lease.  The new law overturned this decision.  Although the bill for this amendment was entitled, “An Act to Provide a Remedy to Property Owners When a Tenant Defaults on a Lease,” the law provides relief to both landlords and tenants with leases that do not contain termination provisions or notice language.  Under the new law, a landlord may terminate a lease with 7 days’ notice and appropriate for-cause grounds, even if the lease does not contain language providing for termination in such circumstances.  Similarly, a tenant may terminate a lease lacking termination language upon 7 days’ notice to the landlord in cases where the landlord has materially breached a provision of the lease.  14 M.R.S.A. §6001(1-B).

Although the amendment attempts to “remedy” problems with terminating certain leases, unfortunately the statute does not automatically fix all problems with leases not containing termination provisions.   If you are going to use a lease, you may wish to have an attorney draft or review your existing document to ensure that it protects the landlord in the event of default.

Presumption of Retaliation in Eviction Proceedings

Under Maine’s forcible entry and detainer (eviction) laws, a landlord evicted a tenant in retaliation if that tenant exercised certain rights or complained about habitability issues or code violations in the six month prior to the eviction action.  The new law provides added protections for landlords evicting tenants within the six months following a tenant’s complaints.  For example, the amended law provides that presumptions of retaliation do not apply if the eviction “is brought for failure to pay rent or for causing substantial damage to the premises … unless the tenant has asserted a right pursuant to §6026 [regarding dangerous conditions requiring minor repairs]”.   14 M.R.S.A. §6001(3).  In addition, this section makes it clear that the presumption will only apply to housing complaints made in good faith “for which there is a reasonable basis” and only to complaints filed “prior to [the tenant’s] being served with an eviction notice.”  14 M.R.S.A. §6001(3)(E).   There is a similar amendment to the retaliation presumption when a tenant exercises his rights under Maine’s new bedbug law (discussed below).

Landlords should be careful when evicting tenants who have recently made a complaint based on any of the enumerated sections, and should discuss the situation with legal counsel prior to doing so.

New Affirmative Defense in Eviction Proceedings

The amended law sets forth a new affirmative defense that a tenant may raise at an eviction hearing in cases where a landlord fails to provide a tenant with a reasonable accommodation under the Maine Human Rights Act or the Fair Housing Act.  The section provides that a court “shall deny forcible entry and detainer and not grant possession to the landlord if the court determines that the landlord has a duty to offer a reasonable accommodation and has failed to do so and there is a causal link between the accommodation requested and the conduct that is the subject of the forcible entry and detainer.”  14 M.R.S.A. §6001(5).  In other words, the tenant must not only prove that he was denied a reasonable accommodation, but also that the denial is the cause of the eviction proceeding.

The new law defines a “reasonable accommodation” as “a change, exception, or adjustment to a rule, policy, or practice or service that is necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common access spaces for that dwelling.” 14 M.R.S.A. §6001(5).  Although this affirmative defense is new, a landlord’s duty to provide a reasonable accommodation for disabilities is not; a judge at an eviction proceeding may look to what accommodations have been considered reasonable in other settings.  If the judge does find that a reasonable accommodation was denied, she moves to the next inquiry – whether the denial caused the eviction.  An example of such a situation might be if a disabled tenant was denied a companion animal and was being evicted for violating a landlord’s prohibition against pets.

If a tenant requests an accommodation, landlords should promptly discuss with counsel any concerns about the request.   Landlords may also contact the Maine Human Rights Commission at 624-6290 for additional information or review the materials on its website.

Streamlining of a Landlord’s Disposition of a Tenant’s Unclaimed Personal Property

The law setting forth a landlord’s duty with respect to tenants’ personal items left at the dwelling has been amended to make the disposal process easier.  For example, the notice periods that the landlord must provide and the timeframe within which the tenant may claim the property after notice have both been shortened.  The amendment eliminates the need for landlords to value personal property in order to determine whether they can simply dispose of property with proper notice, or whether they must report abandoned property to the state.  Landlords may now dispose of any personal property by complying with the notice provisions of the Maine law.

The amendments also provide for a waiver provision under which, upon vacating a unit without removing all belongings, tenants can agree to waive their rights to notice under this section.  The waiver can be verbal as long as the landlord confirms the agreement in writing.  The new law also provides for waiver provisions in leases of any liability for a landlord’s disposal of a tenant’s abandoned property, as long as the notice provisions are followed.  14 M.R.S.A. §6013.

Maine’s Bedbug Law

The new laws amend the “bedbug” laws that went into effect on July 11, 2010.  14 M.R.S.A. §6021-A.  The new bedbug law is comprehensive and imposes ongoing communication and cooperation between landlords and tenants in addressing Maine’s bedbug problem.  It sets forth responsive action upon both parties in the event of an infestation.

Duties of Landlord

The law requires the landlord to physically inspect the premises within 5 days of being notified of a possible bedbug infestation.   If bedbugs are confirmed, the landlord then has 10 days to contact a pest control agent who carries a liability insurance policy.   The landlord must then “take reasonable measures to effectively identify and treat the bedbug infestation.”  14 M.R.S.A. §6021-A(2)(D).  The law also requires landlords to disclose bedbug infestation and treatment to potential tenants of adjacent units and prohibits a landlord from renting units that he knows or should know has bedbugs or is being treated for bedbugs.  If a current or potential tenant inquires, a landlord must disclose the last date when the unit was “inspected for a bedbug infestation and found to be free of a bedbug infestation.”  14 M.R.S.A. §6021-A(2)(D).

The law also mandates that “a landlord shall offer to make reasonable assistance available to a tenant who is not able to comply with requested bedbug inspection or control measures,” including providing “financial assistance to the tenant to prepare the unit for bedbug treatment.”  14 M.R.S.A. §6021-A(2)(F).  The law does not define the scope of assistance required, or the extent to which financial assistance must be offered, although the amendments discussed below provide some clarification.  In addition, the law provides that the landlord “may charge the tenant a reasonable amount for any such assistance,” subject to a “reasonable repayment schedule.”  14 M.R.S.A. §6021-A(2)(F).

If a landlord fails to comply with the requirements of this law, there is a presumption of a violation of the warranty of habitability.  Further, the landlord may be “liable for a penalty of $250.00, or actual damages, whichever is greater, plus reasonable attorney’s fees.”  14 M.R.S.A. §6021-A(4)(D).

Duties of Tenants

The law requires a tenant to notify the landlord if bedbugs are suspected, and mandates the cooperation of tenants in addressing the bedbug problem.  If the landlord gives reasonable notice to the tenant about his need to inspect for bedbugs, the tenant must allow access to the landlord or his agents for this purpose.  “Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.”  14 M.R.S.A. §6025.  A tenant’s obligation to provide access for inspection may extend to the tenant’s personal belongings, if the pest control agent reasonably believes such inspection is necessary.

If a tenant fails to comply and cooperate with the landlord or his agents, a landlord may seek a protective order, under which the court could:

“(1) Grant[ ] the landlord access to the premises for the purposes set forth in this section;

(2) Grant[ ] the landlord the right to engage in bedbug control measures; and

(3) Requir[e] the tenant to comply with specified bedbug control measures or assess[ ] the tenant with costs and damages related to the tenant’s noncompliance.”

Following 24 hours after service upon the tenant of the court order, the landlord may enter the premise and take remedial action.

In short, tenants must comply with any “reasonable measures to eliminate and control a bedbug infestation as set forth by the landlord and the pest control agent.”  14 M.R.S.A §6021-A(3)(C).  If the tenant unreasonably fails to be cooperative with respect to pest control treatment, the law gives the landlord the right to step in, get the work done, and then hold the uncooperative tenant financially responsible for the cost “arising from the tenant’s failure to comply.”  14 M.R.S.A. §6021-A(3)(C).

The new law does not require any specific type of treatment.  It simply states that it be effective to eliminate and control bedbugs.  It does not address what happens if the tenant disagrees with the type of treatment the landlord uses (e.g., chemical, non-chemical, organic, or pet safe, etc.), or whether a tenant’s disagreement about treatment methods could constitute an unreasonable failure to comply.

2011 Amendments to the July 2010 Bedbug Law

Perhaps the most undefined aspect of the 2010 bedbug law is its requirement that landlords must offer to make reasonable assistance, including financial assistance, to tenants who are unable to comply with their responsibilities under this law.  Although the 2010 law did not define the extent to which landlords must offer assistance, the 2011 amendments make it clear that providing financial assistance to the tenant for purposes of vacating to allow for bedbug treatment does not require the landlord to provide lodging or to “pay to replace a tenant’s personal belongings.’’  This section is still vague, however, in that it merely identifies certain things that would not be required without saying what assistance would be required.

Energy Efficiency Disclosure

The law regarding a landlord’s duty to disclose the cost of energy has been amended to allow prospective tenants who will be paying the utility costs of a unit to obtain directly from the energy supplier “the amount of consumption [for the unit] and the cost of that consumption for the prior 12-month period.”  14 M.R.S.A. 6030-C(1).  Also, instead of providing prospective tenants with a residential energy efficiency disclosure statement, the landlord may now require the prospective tenant to obtain the information from the energy supplier as long as the landlord includes in the residential rental application the name of each previous energy supplier, if known, and a notice stating:  “You have the right to obtain a 12-month history of energy consumption and the cost of that consumption from the energy supplier.”  14 M.R.S.A. §6030-C(1).

Although the new laws add notice requirements and other landlord duties, the changes also help landlords by providing additional guidance about claims of retaliation in eviction proceedings, streamlining the process of dealing with abandoned personal property, and addressing other issues that tend to bug landlords.

___________________

This article is not legal advice but should be considered as general guidance in the area of recent changes in landlord-tenant laws.  Sonia J. Buck and John W. Conway, the authors, are attorneys at Linnell, Choate & Webber in Auburn, Maine.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.

In OSHA’s brochure on texting while driving, OSHA also states that, when it receives a credible complaint that an employer requires texting while driving or organizes work so that texting is a “practical necessity,” it will investigate and will issue citations and penalties where necessary to end the practice.  Its focus is on texting though its model policy addresses talking on cell phones as well.  The position OSHA has taken is that it will start with texting while driving and then move from there.  At this point, if an employer creates a situation where an employee needs to text while driving, OSHA will consider that a violation of the OSH Act.  It thus makes sense to have a policy addressing this regulatory mandate.

OHSA’s webpage is now set up to link readers to a sample model policy that is located on the National Highway Traffic Safety Administration’s (“NHTSA”) “Distraction.gov” site.  OSHA itself has a brochure that is printable from the web.  To save time tracking this material down, here is the policy that OSHA has identified as an acceptable model:

Consider having the employee sign that they received the policy with language such as the following:

Assuming you already have some policies and are adding this distracted driver policy to the mix, think about how the new policy will be introduced to employees.  As it turns out, the NHTSA has even provided a sample memo to send to employees with the policy attached.  There is no copyright issue here; just copy it, fill in the blanks, and hand it out:

Employers are not required to include this memo or all of its text.  It is just a sample.  But, if it saves you time and addresses an  OSHA concern, it is there for you to use.  If it would help to have a Word version emailed to you, just contact us and let us know.

This article is not legal advice but should be considered general guidance in the area of the employment policies, particularly in the area of distracted driving.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.  You can reach Rebecca Webber at 784-4563 (telephone); rwebber@lcwlaw.com (email); or 784-1981 (fax).

Apparently intended as a counter to the experts whom it was assumed such developers would hire, the Informed Growth Act  required any such developer to pay a $40,000 fee up front, which would be administered by the State Planning Office.  The funds would be used by the municipality in which a big box project had been proposed to hire an expert to determine whether the project would have an “undue adverse impact” on the community.  Among the potential adverse impacts to be examined were the anticipated economic consequences on businesses already existing in the community and their employees which would be caused by the opening of a new big box store.  This consideration troubled some lawyers because of court decisions invalidating similar legislation protecting businesses already in the community from competition by outsiders on constitutional and anti-trust grounds.

The developer’s burden in complying with the new law was increased by the law’s requirement that, if the expert determined that the proposed new development would have even two “undue adverse impacts” on the community, it must be turned down. There was also a concern on the part of some that local planning boards would have difficulty applying the criteria established in the new statute because of their lack of familiarity with considerations such as whether or not a new Walmart Supercenter would have an adverse economic impact on existing businesses, the available supply of retail space, and retail wages as required by the statute.

Since the adoption of the Informed Growth Act, efforts have been made at every legislative session to repeal or amend it to allow local communities to opt out of having to comply with its requirements.  These efforts have been turned back, largely through the resistance of Democratic legislators.  In 2011, with a Republican majority on the State and Local Government Committee, a pro-business sentiment altered the dialogue and resulted in the adoption of dramatic changes in the Informed Growth Act.

In the first place, the required $40,000 up front fee from the developer to pay for an expert to estimate the economic impact of the proposed new development has been scrapped. Title 30-A M.R.S.A. § 4367(3).  Instead, the municipality may decide what fee to charge.

The amended statute also provides that the development proposal must be turned down only if the estimated adverse impacts of the project “outweigh” the estimated positive impacts.  Title 30-A M.R.S.A. § 4366(3)(10).  Gone is the requirement that the development proposal must be denied if even two undue adverse impacts are identified.

Probably the most significant change in the statute appears in the new section 4365-A, which states that a municipality will not be subject to the requirements of the Informed Growth Act unless it adopts an ordinance affirmatively opting in to its coverage.  The beauty of this amendment is that it allows those municipalities which are concerned about being overmatched by the experts hired by a big box developer to opt in so that they may hire their own experts at the developer’s expense.  It also retains the statutory framework which focuses the analysis on whether the developer can establish that his proposed development will not impose undue adverse impacts on the community.  At the same time, the statute now allows communities to decline to opt in to the process if they do not intend to discourage new big box stores and are comfortable with the capability of their own planning process.[1]

As a consequence of the legislature’s action in the last session, municipalities in Maine that do not wish to opt in may want to review their ordinances to see whether their planning boards are provided with sufficient authority to review complex  development proposals.  Cities like Lewiston and Auburn which have attempted to opt out in the past by essentially incorporating the provisions of the Informed Growth Act into their own ordinances are now free to repeal those ordinances and restore their local planning process to its previous status free of the stringent requirements imposed by the Informed Growth Act.

One word of caution is that the revised version of the Informed Growth Act, if adopted by a local community, continues to require a determination about whether the proposed big box store will have an undue adverse effect on existing businesses.  If development proposal were turned down for this reason, it could invite a legal challenge based on constitutional grounds or as a violation of anti-trust laws.

[1]
At one of the hearings before the State and Local Government Committee, for example, a representative of the City of Lewiston testified that that city felt that its planning board could handle any big box development proposals and wanted the freedom to opt out of the process.

This newsletter, which was prepared for the municipal law clients of Linnell, Choate & Webber, LLP, is not legal advice but is a general review of the 2011 amendments to the Informed Growth Act.  It does not cover every legal issue that a municipality might encounter in applying the law.  If you are unsure about how to proceed in such a matter, you can call us at 207-784-4563.  If you would like a copy of the new amendments, please email, write, or fax Attorney Curtis Webber.

Both laws can affect a number of different interactions with employees, including employee requests for reasonable accommodation of a disability, requests for family medical leave, return to work exams, wellness programs, and even just casual conversation.  Both laws cover information ranging from whether an employee has an alcoholic parent or whether cancer runs in an employee’s family to whether a heart condition is common in a family to information about an employee’s family medical history generally.  While state law generally prohibits discrimination based on such information, federal law also prohibits acquisition of such information in many circumstances.

Starting with state law first, which imposes fewer requirements, Maine law forbids an employer from failing or refusing to hire, discharging, or otherwise discriminating against an employee or applicant for employment with respect to the compensation, terms or conditions of employment on the basis of genetic information concerning that individual.  It also prohibits discrimination based on an individual’s refusal to submit to a genetic test or make available the results of a genetic test or on the basis that the individual received a genetic test or genetic counseling.  Genetic information is defined as information concerning the genes, gene products or inherited characteristics that may be obtained from an individual or family member.  If an employee tells you that breast cancer runs in her family, she has just disclosed genetic information to you.  If you didn’t ask for that information and it just came out inadvertently and you then do nothing with that information other than keep it confidential, you’re fine under both federal and state law.  If you decide to put the person on leave or part time or fire them because of that information, you have just violated both laws.  If you take no action but you acquired that information because you asked the employee about it or insisted on a return to work exam that required that disclosure, you may well have violated federal law even if not state law because there are limits on acquisition of such information.

So what does federal law do beyond prohibit discrimination?  Well, to begin with, it says that a covered employer (one with 15 or more employees) “may not request, require, or purchase genetic information of an individual or family member of the individual” except under certain conditions.  “Request” doesn’t just mean ask for, however; according to the federal regulations spelling out the details of GINA, “request” includes conducting an Internet search on an individual in a way that is likely to result in the employer obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in the employer obtaining genetic information.  So, perhaps you suspect an employee is dealing with some kind of illness and you go search their facebook page and, no surprises, discover they are part of a cancer awareness group, have gone to get their first radiation treatment, and their sister is talking about how an aunt and uncle had and survived the same thing so keep the chin up.  You have just “requested” genetic information.  While it is too late now to undo that wrong, that information should not be shared or acted upon.  Keep the focus on the conduct at work and whether the employee is doing their job.  Whether it is from lack of caring or lack of intelligence or lack of health or lack of good genes is not the question:  the question is, are they doing their job or not?  Counsel, if necessary, on whether they are doing their job.

 What if an employer makes a legally permissible request for, say, medical information needed to determine if an employee is entitled to a reasonable accommodation for a disability and the employee ends up disclosing genetic information along with other information?  Sounds inadvertent, and therefore not a violation, but it IS a violation unless the employer directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.  The safest way to do this is to do the request in writing and use the language suggested in the regulations themselves:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ’Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

If an employer uses the quoted language on its form requesting medical information, it will be automatically assumed that any genetic information then received in response was inadvertent and therefore legally obtained.  (That doesn’t mean an employer should then use that information.)

An employer might also be able to show that its recepit of genetic information was inadvertent because its request for medical information was not “likely to result in a covered entity obtaining genetic information” (for examply, where an overly broad response is received in response to a tailored request for medical information).  This approach to avoiding legal liability would depend on being sure one could prove later that the request was “not likely” to result in genetic information.  Why take the chance if the warning is easily put on a form and given to the employee?

And, while this may come as a surprise to some, the federal regulations apply some common sense to situations where genetic information is learned in ways that are unavoidable or just part of normal human interaction, with a caution to management about asking too many questions.  Here is how the EEOC in its regulations put it:

“The exception for inadvertent acquisition of genetic information also applies in, but is not necessarily limited to, situations where— (A) A manager, supervisor, union representative, or employment agency representative learns genetic information about an individual by overhearing a conversation between the individual and others; (B) A manager, supervisor, union representative, or employment agency representative learns genetic information about an individual by receiving it from the individual or third-parties during a casual conversation, including in response to an ordinary expression of concern that is the subject of the conversation. For example, the exception applies when the covered entity, acting through a supervisor or other official, receives family medical history directly from an individual following a general health inquiry (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer) or a question as to whether the individual has a manifested condition.  Similarly, a casual question between colleagues, or between a supervisor and subordinate, concerning the general well-being of a parent or child would not violate GINA (e.g., “How’s your son feeling today?”, “Did they catch it early?” asked of an employee whose family member was just diagnosed with cancer, or “Will your daughter be OK?”).  However, this exception does not apply where an employer follows up a question concerning a family member’s general health with questions that are probing in nature, such as whether other family members have the condition, or whether the individual has been tested for the condition, because the covered entity should know that these questions are likely to result in the acquisition of genetic information; (C) A manager, supervisor, union representative, or employment agency representative learns genetic information from the individual or a third-party without having solicited or sought the information (e.g., where a manager or supervisor receives an unsolicited email about the health of an employee’s family member from a co-worker); or (D) A manager, supervisor, union representative, or employment agency representative inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”

Another exception to the rule against requesting genetic information applies when an employer requests family medical history to comply with the certification provisions of the federal Family and Medical Leave Act or state or local family and medical leave laws, or pursuant to a policy (even in the absence of requirements of federal, state, or local leave laws) that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave.  Of course, the request should be tailored to just the information needed to determine if the employee qualifies for the family leave . . . and no more.  This exception also applies to where an employer requests medical information from an individual as required, authorized, or permitted by the Family and Medical Leave Act (FMLA) to attend to the employee’s own serious health condition or where an employee complies with the FMLA’s employee return-to-work certification requirements.

Similarly, genetic information may be acquired appropriately in situations such as where an employer requests documentation to support a request for reasonable accommodation under federal, state, or local law, as long as the employer’s request for such  documentation is “lawful.” A request for documentation supporting a request for reasonable accommodation is “lawful” only when “the disability and/or the need for accommodation is not obvious; the documentation is no more than is sufficient to establish that an individual has a disability and needs a reasonable accommodation; and the documentation relates only to the impairment that the individual claims to be a disability that requires reasonable accommodation.”  The key in most of these circumstances is limiting the request to just the information needed to deal with the situation, whether it is providing an accommodation for a disability or a family leave for a particular condition or determining if an employee is ready to return to work.

There are a few more exceptions applicable to requests for genetic information but they are relatively specialized, one relating, for example, to when genetic monitoring is necessary in the workplace for safety reasons, another to certain limited information publically available, and another related to law enforcement.  Suffice it to say that this article cannot and does not address all the exceptions covered by the federal regulations.

The federal regulations predictably also prohibit the acquisition of genetic information, including family medical history, through medical examinations related to employment. An employer must “tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.”  If a health care provider continues to request or require genetic information despite reminders from the employer that such information is not appropriate, the employer may need to stop hiring that professional to protect itself from liability.  Should genetic information be acquired as part of a medical examination (or through any other mechanism), consistent with state law, that information must be kept confidential and may not be used to discriminate.

This article is not legal advice but should be considered as general guidance in the area of genetic information in the workplace.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine (rwebber@lcwlaw.com).  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.

The basis of the lawyer-client or health provider-patient relationship starts with informed consent.  Rule 1(e) of the Maine Lawyers Rules of Professional Conduct carefully defines informed consent as a person’s “agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  Rule 1.2 is related to Rule 1, as it requires the lawyer to “abide by a client’s decisions concerning the objectives of representation.”  Similarly, Ethics Opinion 8.08 of the American Medical Association (“AMA”) states:   “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice.  The patient should make his or her own determination about treatment.  The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.” The Guidelines for Ethical Conduct for the Physician Assistant Profession also deal with informed consent:  “Physician assistants have a duty to protect and foster an individual patient’s free and informed choices.  The doctrine of informed consent means that a PA provides adequate information that is comprehensible to a competent patient or patient surrogate.  At a minimum, this should include the nature of the medical condition, objectives of the proposed treatment, treatment options, possible outcomes, and the risks involved.  PA’s should be committed to the concept of shared decision making, which involves assisting patients in making decisions that account for medical, situational and personal factors.”  Maine law protects providers who comply with standards for informed consent.  See 24 M.R.S.A. § 2905.  Keep in mind that, unlike the AMA language, the Maine Supreme Court confirmed that, a patient (or by analogy a client) may choose to do nothing at all even if the provider would disagree.  See also Downer v. Veilleux, 322 A.2d 82 (1974).

Privacy and confidentiality are also concerns common to the lawyer-client and health provider-patient relationship.  Rule 1.6 of the Lawyers Rules of Professional Conduct protects against disclosures of client confidences or secrets except in clearly defined circumstances.  Interestingly, there is a specific AMA medical ethics opinion (5.09) that governs confidentiality by industry-employed physicians and independent medical examiners:  “When a physician renders treatment to an employee with a work-related illness or injury, the release of medical information to the employer as to the treatment provided may be subject to the provisions of the workers’ compensation laws.  The physician must comply with the requirements of such laws, if applicable.  However, the physician may not otherwise discuss the employee’s health condition with the employer without the employee’s consent . . .”  See also AMA Ethics Opinion 5.05, Confidentiality (generally constrains release by the physician of confidential information). This is echoed by the PA Ethical Guidelines: “Any communication about a patient that is conducted in a manner that violates confidentiality is unethical.”  Maine law governing health care confidentiality is quite detailed.  See 22 M.R.S.A. § 1711.  In addition, the employer, under the ADA and MHRA, is prohibited from obtaining medical information other than an opinion whether an employee can perform a job with or without reasonable accommodation.  Unlike a HIPAA violation, breach of the Maine Confidentiality Law may give rise to a private civil action sounding in defamation, negligence, or invasion of privacy.

As Maine becomes more diverse, providers of both legal services and health services face communication challenges. Rule 1.4(5)(6) of the Lawyers Rules of Professional Conduct links the duty of effective communication to the effectiveness of informed consent:  “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  In addition to the common sense requirement that effective medical consultation and treatment is based upon effective communication, certain providers, or their institutions, may be subject to state and federal requirements governing public accommodations, including services performed for persons with limited English proficiency.  The Maine Human Rights Act, for example, imposes a duty on public accommodations to be accessible to all, regardless of national origin, disability, gender, and more.  A public accommodation must therefore hire an interpreter if a client/patient does not understand English or a sign language interpreter if the client/patient speaks only sign language.  See HHS Regulations set forth at 45 CFR § 80.3(b) (2).  See also 5 M.R.S.A. §§ 4553 et seq. (2011).

The fundamental lesson of these similar standards is that communications with clients and patients, and communications of client and patient information to others, must be thoughtful, informative, and based on client and patient needs and consent.  Time spent on consideration of the ethical duties arising from such requirements is time well spent by all of us.

 USERRA

The Uniformed Services Employment and Reemployment Rights Act (USERRA), found in the federal laws at 38 U.S.C. §§ 4301 to 4335, provides reemployment rights to returning members of the uniformed services.  This law applies broadly: “employer” is defined as any person, institution, organization, or other entity that pays a salary or wages for work performed or that has control over employment opportunities, including:

1.         a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;

2.         the Federal Government;

3.         a State;

4.         any successor in interest to a person, institution, organization, or other entity referred to in § 4303; and

5.         a person, institution, organization, or other entity that has denied initial employment in violation of § 4311.

38 U.S.C. § 4303(4)(A).  The definition of “employee” is no less broad:  it encompasses “any person employed by an employer” regardless of the number of employees.  38 U.S.C. § 4303(3).  USERRA’s retaliation provisions cover anyone taking action to enforce USERRA, testifying in a USERRA action, assisting in an investigation, or exercising a right protected by USERRA, regardless of whether that person is themself in the military. 38 U.S.C. § 4311(b).  (The limit is that the employer cannot retaliate by taking “adverse employment action” or by “discriminat[ing] in employment”, which suggests the target must be an employee to be protected, or an applicant.)

Under USERRA an employee can advance  claims against his or her employer for:

A.        failure to reemploy upon the employee’s return from service (§ 4312);

B.        premature termination (§ 4316); and

C.        discrimination in initial employment, reemployment, retention in employment, promotion, or any benefit of employment, or retaliation for exercising a right or engaging in an activity protected under the Act, where the employee’s uniformed service is a motivating factor in the employer’s adverse action (§ 4311).

The law defines “benefit of employment” to include any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.  38 U.S.C. § 4303(2).

With respect to discrimination, even if there are other reasons behind the challenged employment decision, the action violates USERRA if the uniformed service is a motivating factor in taking that action.  The employee need not prove that the USERRA leave was the sole reason for the adverse employment action. See Kelley v. Maine Eye Care Assocs., P.A., 37 F. Supp. 2d 47, 54 (D. Me. 1999).  An employer can avoid liability by proving that the adverse employment action would have been taken even in the absence of the employee’s military status.  38 U.S.C. § 4311(c)(1).  If an employer is at the stage of proving that it would have taken the same action regardless of the leave, though, that means it is in litigation and hasn’t managed to avoid getting tangled up in court.

Consequently, if an employee is engaging in workplace misconduct, that misconduct must be handled in a way that makes clear hat action is being taken for what reason.  Not only should there be good documentation but it’s important to act cautiously and deliberately; it is no different than handling misconduct issues around an employee who has just had a workers’ compensation injury or requested FMLA leave or informed management of a disability and need for accommodation.  Whoever is handling the misconduct should be careful not to let the employee’s military service affect disciplinary decisions.  It helps to ask, would I have fired/written up/warned Mr. X who is not returning from deployment for the same conduct?  Does the notice of impending military leave make this conduct less tolerable?  The answers should be yes and no.  Applying the “golden rule,” albeit not a legal teaching, also helps reduce the risk of the matter landing in court.

With respect to the right to reemployment, there are several principles to consider:

1.        The returning service member is entitled to the seniority and other rights and benefits that the employee had on the date their service in the uniformed services began plus any additional seniority, rights and benefits that the employee would have gotten if the employee had remained continuously employed.

2.        When an employee is absent from employment because of military service, an employer must treat that absence as unpaid leave or a leave of absence.  The employee, upon return, is entitled to whatever rights and benefits an employee out on any other leave of absence would have received.

3.        Section 4313 of USERRA prescribes the priority order of the position to which an employee returning from a period of uniformed service is entitled.  If the length of service is for less than 90 days, the employee must be returned to the position they would have been in if their continuous employment had not been interrupted by military service or, if not qualified for that, in the position they had when service began.  If service is longer than 90 days, the person must be put in the position the employee would have been in if their continuous employment had not been interrupted by their military service or, if not qualified, in the position they had when they left or a position of like seniority, status, and pay.

4.        If the employee incurs a disability while serving or a disability is aggravated as a result of their service, the employer must make reasonable efforts to accommodate the disability (already required by other laws).  If the accommodation isn’t enough to make that work, the employer must try to find another position that the employee is qualified to do (or would become qualified to do with reasonable efforts by the employer) that is the equivalent in seniority, status, and pay.  If that option isn’t available, the employee must be given a position that is the nearest approximation to such a position.  In other words, try to find them work and  make it similar in seniority, status, and pay.

5.        An employer may not refuse to reemploy a returning service member on the basis of the timing, frequency, and duration of the employee’s military training or service, so long as the service does not exceed five years and the employee provides notice of his or her service to the employer. The employee must provide notice in advance of the service, including the length of time.  Upon completion of service, the employee must submit an application for reemployment, providing advance notice of the intent to return to the prior position of employment.  There are a number of rules and guidelines on what that return notice must involve.

Ultimately, however, an employer is not required to reemploy a service member if the employer’s circumstances have so changed as to make such reemployment “impossible or unreasonable,” if reemployment would impose an undue hardship on the employer, or if the position left was for a “brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely.”  Risky to base a decision on one of these outs?  It would certainly be advisable to try everything possible to find a place for the returning service member and document those attempts.  It may feel difficult and there may be some who want to throw up their hands and say, this is unreasonable, but litigation is also difficult, as well as expensive, and the risk averse need to take that into account. The spirit of this law is certainly grounded in trying to avoid punishing an employee for serving their country.  In recognition of this latter point, an employee seeking relief under the section requiring reemployment need not meet the additional burden of proof requirements for discrimination cases: the employee need not prove that the employer intended to  violate USERRA by refusing reemployment.

Once an employee is reemployed, it is important to remember a key difference between the returning service member and other employees, including other employees returning from different types of leave: section 4316(c) specifically protects returning service members against discharge by providing for a period of time after reemployment during which they cannot be discharged except for “cause.”  Maine employment is generally at will.  For cause means an employer needs to have a good reason for letting the person go.  The employer bears the burden of proving cause sufficient to justify the discharge; in other words, it isn’t the employee’s job to prove that there was no cause.  Bottom line: unless an employer relishes high turnover and the cost of finding and training new employees and paying a higher unemployment premium, having cause to let an employee go is a good thing generally speaking; that is, if there is no good reason for letting the person go, there are business reasons for changing that termination decision.

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This article is not legal advice but should be considered as general guidance in the area of USERRA and the workplace.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  To contact her, please email, write, or fax  Rebecca Webber at P.O. Box 190, Auburn, Maine 04212-0190, Fax 207-784-1981, email rwebber@lcwlaw.com.

The use of credit reports in the employment context:
Maine law

Under Maine law, prior to requesting an employee’s or potential employee’s credit report, an employer must inform the employee in writing that:   1.  a credit report may be requested;  2.  the employee will be informed whether or not a report was requested if the employee makes a request to know; and  3.  the employee will be informed of the name and address of any consumer reporting agency furnishing that employee’s credit report to the employer.  10 M.R.S.A. § 1320(2-B).

Upon receipt of the employee’s credit report, certain procedures must be followed to ensure compliance with Maine law.  The employer must retain the credit report records for a period of at least two years.  10 M.R.S.A. § 1320(1-A).  The law imposes additional requirements if an adverse action is taken based on a credit report.  Examples of “adverse actions” include verbal or written warnings, termination, demotion, or determination that a person is under “financial stress.”  Prior to an  employer’s taking adverse action, the employer must provide written or electronic notice of the adverse action to the employee.  (In the statute, the law states that the notice must be given to the “consumer.”  The “consumer” is the person whose credit report is at issue.  In this case, it would be an employee.  The law requires notice to any consumer from any person taking an adverse action as a result of a credit report.  10 M.R.S.A. § 1320(1-B)(A).)   The employer must also provide to the employee in writing or electronically:

            (a)        The name, address and telephone number of the consumer reporting agency that created the credit report, including a toll-free telephone number established by the agency that furnished the report to the person if the agency compiles and maintains files on consumers on a nationwide basis; and

            (b)        A statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer (employee) the specific reasons why the adverse action was taken.

Finally, prior to taking adverse action based on a credit report under Maine law, an employer must provide to the employee a written or electronic notice of the employee’s right:

            (a)        To obtain under section 1316 (10 M.R.S.A. § 1316) a free copy of a consumer report on the consumer from the consumer reporting agency.  The notice must include an indication of the 60-day period under section 1316 for obtaining the copy; and

            (b)        To dispute, under section 1317, with a consumer reporting agency the accuracy or completeness of any information in a consumer report furnished by the agency.

The use of credit reports in the employment context:
Federal law

Under the federal law, the process is much the same so complying with the procedures set forth above will bring an employer into compliance with both state and federal law.  A Dodd-Frank Act amendment to the Fair Credit Reporting Act (FCRA), the federal law on credit issues, took effect on July 21, 2011, adds some additional steps if credit scores are used, so those should be singled out if you decide to use credit scores in your employment decisions.  An employer using credit scores will be required to disclose that a credit score was used and to disclose information about the score, including what the score was and the identity of the agency providing that score.

Updated rule on I-9 process

The agency in charge of the I-9 process issued a final rule on the employment eligibility verification process.  (Agencies pass rules and regulations; legislatures pass laws that the rules and regulations help carry out in more detail; courts interpret the laws and apply them to situations that come before them in court.)  The rule includes the following requirements:

• Employers may not accept expired documents.
• Form I-688, “Temporary Resident Card,” and Forms I-688A and I-688B, “Employment Authorization Cards,” are removed from the list of acceptable documents because the USCIS no longer issues these documents, which means that any such documents in possession of an employee would now have expired.
• The new U.S. passport card and the temporary Form I-551, “Permanent Resident Card” with a printed notation on a machine-readable immigrant visa, are added to the list of acceptable documents on List A of Form I-9.

There is a receipt rule, which takes into account the delay in renewing immigration documents.  Under the receipt rule, an employer may accept a receipt for the application for a replacement document for a 90-day period for Form I-9 if the List A, B or C document that is being replaced has been lost, stolen or damaged.  The critical part of this rule is that it applies only if the document has been lost, stolen or damaged, not when the document has expired.  Remember, no expired documents are acceptable.

The most recent form can be downloaded from on-line.  Go to: http://www.uscis.gov/files/form/i-9.pdf.  For the purpose of completing the I-9 form, the term “employer” means all employers including those recruiters and referrers for a fee who are agricultural associations, agricultural employers, or farm labor contractors.  Employers must complete Section 2 of the form by examining evidence of identity and employment authorization within three business days of the date employment begins.  However, if an employer hires an individual for less than three business days, Section 2 must be completed at the time employment begins.  Employers cannot specify which document(s) listed on the last page of Form I-9 employees present to establish identity and employment authorization.  Employees may present any List A document or a combination of a List B and a List C document.

The National Labor
Relations Act and posting requirements

The National Labor Relations Board (“NLRB”) has issued a final rule that will require most private-sector employers to notify workers of their rights under the National Labor Relations Act (“NLRA”).  The rule is likely to take effect on Nov. 14, 2011, though it has been challenged, so that remains to be seen.

According to the NLRB fact sheet on the poster:  “Copies of the notice will be available on the NLRB website and from NLRB regional offices by October 1.  Similar postings of workplace rights are required under other federal workplace laws. The 11-by-17-inch notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor rule.  The notice of rights will be provided at no charge by NLRB regional offices or can be downloaded from the Board website and printed in color or black-and-white. Translated versions will be available, and must be
posted at workplaces where at least 20% of employees are not proficient in English.  Employers must also post the notice on an intranet or an internet site if personnel rules and policies are customarily posted there.”

The posting requirement applies to non-unionized as well as unionized workplaces.  As described in earlier articles about the impact of the NLRA on non-union workplaces and recent developments involving employee discussions on social media such as
Facebook, the NLRA provides rights to workers to discuss workplace issues and work collectively even when there is no union.  Most businesses will be included as well since most companies use some form of interstate commerce, from the internet to out-of-state phone calls to credit card machines.  Bottom line though?  This is just a poster.  And not informing workers of their rights won’t provide any protection.  There are much better ways to reduce liability and litigation risk.

Special edition to this article:

The NLRB announced on October 5th that it has postponed the implementation date for its new notice-posting rule by more than two months, until January 31, 2012. The delay is intended to allow for enhanced education and outreach to employers, specifically small and medium-sized businesses.

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This article is not legal advice but should be considered as general guidance in the area of recent changes in the use of credit reports and credit scores, the I-9 process, and the NLRA .  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  To contact her, please email, write, or fax Rebecca Webber at P.O. Box 190, Auburn, Maine 04212-0190, Fax 207-784-1981, email rwebber@lcwlaw.com.

• Have an introduction that makes clear that the handbook is not a contract

A number of employees believe that a company failing to follow its own handbook is illegal, as if the handbook is a contract.  Maine cases have made clear that a handbook cannot be the basis for a lawsuit if the handbook makes clear it is not a contract.  Of course, a company should avoid having provisions in its handbook that it doesn’t think it can follow through on and it should remove provisions that it realizes it just isn’t able to carry out.  As an employer, don’t make promises in a handbook you can’t keep.  That being said, make sure to start off the handbook with an introduction along the lines of this example:

This handbook is intended to provide general guidelines for many of the employment policies and practices of                                  (the “Company”).  It does not contain all of the Company’s policies affecting its employees.  It is not intended to be and does not constitute a contract between the Company and any of its employees.  The provisions of this handbook have been developed at the discretion of management and, except for its policy of employment-at-will, may be amended or cancelled at any time, at the Company’s sole discretion, with or without notice.

While the Company hires individuals with the hope that the employment relationship will be long and mutually satisfying, all employees are employed at will, and the Company and employees are free to terminate the employment relationship at any time, with or without cause or notice.  No representative of the Company may enter into an agreement with an employee guaranteeing employment for any specified period of time unless such agreement is set out in a writing signed and approved by the                                                       .

• Be careful with employee classifications sections

Among other tips, avoid referring to any class of employees as “permanent.”  That label is confusing in light of Maine’s at-will employment law.  If you want to make clear that employment is at will, it is best not to refer to any employees as permanent.  In addition, be careful with 90-day (or other lengths of time) introductory periods.  These are useful if the company wants to see how a new employee works out before benefits kick in but they shouldn’t be used to suggest that somehow, after the introductory period is over, long term employment is then certain and promised.

For purposes of benefits, an employer does need to inform employees which employees get which benefits.  For example, if employees working a certain number of hours get health insurance but those working less than that do not, spell it out.  An example of how to do that is:

Full-time employees are those who work at least [40/___] hours per week on a regular basis.  Full-time employees are eligible for Company benefits after the applicable requirements for length of service have been met.

Part-time employees are those who work less than [40/___] but at least [20/___] hours per week on a regular basis.  Part-time employees are eligible for certain Company benefits on a pro-rated basis after the applicable requirements for length of service have been met.

Temporary employees are those who have been hired for a particular project or a specified period of time.  Temporary employees may work a full-time or part-time schedule and are not eligible for Company benefits.

• In Maine, you need to have a family sick leave policy

In Maine, an employer needs to address family sick leave so that it is clear when it can be used.  Note that, because sexual orientation is included under the Maine Human Rights Act, employers should consider including in their benefits policies references to domestic partners where spouses are referred to.  The Maine Human Rights Commission has taken the position that, because persons in same sex relationships are not allowed to marry, it would be discriminatory to exclude them from benefits provided to spouses.  The advantage to such inclusion would be that it would help attract a variety of talent to the workplace – benefits available are of top importance to most workers and thus the ability to attract and retain them.  Sample language might run along the lines of:

Under Maine’s Family Sick Leave Act, employees are allowed to use up to 40 hours of accrued and unused “paid leave” for the care of an “immediate family member” who is ill.  This leave is available regardless of how long an employee has worked at the Company.  This kind of leave is available only if the employee has paid leave that they have in fact accrued.  (For example, if an employee only has five days of accrued paid leave, they can take only five days of family sick leave.)  Paid leave is defined as vacation, sick, or other compensated time.  Paid leave does not include paid short-term or long-term disability.  An immediate family member is defined as a child, a spouse, domestic partner, or a parent.

If an employee needs to take leave under this provision to provide care for an immediate family member who is ill, they must notify _________ as soon as they are aware of the need for such time off.  Employees must also use the same procedure as if they were calling in sick:  employees must notify their direct supervisor before the scheduled start of their workday, if possible.  The direct supervisor must also be contacted and provided an update for each additional day of absence.  If an employee needs to be absent for three or more consecutive days, a physician’s statement may be required to verify the illness and its beginning and expected ending dates.

This provision does not provide more leave but permits employees to use accrued paid time to care for an immediate family member who is ill.

• In Maine, you need to have a domestic violence leave policy also

Leave because of domestic violence is required in Maine for relatively specific circumstances.  It should be spelled out in the handbook.  The below example is a minimum, not a maximum:

The Company will grant reasonable and necessary leave from work, with or without pay, for an employee to:

A.        Prepare for and attend court proceedings;

B.        Receive medical treatment or attend to medical treatment for a victim who is the employee’s daughter, son, parent or spouse; or

C.        Obtain necessary services to remedy a crisis caused by domestic violence, sexual assault or stalking.

The leave must be needed because the employee or the employee’s daughter, son, parent, or spouse is a victim of violence, assault, sexual assaults under Title 17-A, sections 251 to 258, stalking, or any act that would support an order for protection under Title 19-A, sections 4001 to 4014.  The Company will not punish or retaliate against an employee or deprive an employee of pay or benefits for requesting domestic violence leave.

The Company may require an employee to provide reasonable documentation of the family relationship, which may include a statement from the employee, a birth certificate, a court document or similar documents.

Leave may not be granted if:

A.        The Company would sustain undue hardship from the employee’s absence;

B.        The request for leave is not communicated to ___________ within a reasonable time under the circumstances; or

C.        The requested leave is impractical, unreasonable or unnecessary based on the facts then made known to the Company.

• A sexual harassment policy is necessary by law as well as to prevent liability

Maine has a sexual harassment law that spells out various items that are required, including certain definitions of harassment, a prohibition against retaliation, and the contact information for the Maine Human Rights Commission (note that the phone number has changed).  The problem is that the better practice is to include all types of discrimination in the policy and it gets cumbersome when a policy has to define sexual harassment separately and then refer to all other harassment.  Nevertheless, it should be done.  Include a paragraph such as the following, after the definition of sexual harassment, and later on also include examples of harassment that are not just sexual:

Prohibited harassment can also include harassment based on race, religion, color, age, national origin, disability, or sexual orientation.  A hostile environment can be comprised of various types of conduct.  The fact that a situation may feel “hostile” does not mean that it is illegal.  Examples of what the Company would like to be told about so that it can respond to whatever the problem may be include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.  The bottom line is that harassment is not permitted at the Company whether it is illegal or not.

Note in this example that the policy states that the Company does not permit harassment of any kind, illegal or not.  To retain talented and valuable employees, and reduce the cost of turnover, a company does not want to allow harassment on any basis even if not illegal.  Moreover, to make sure that harassment of any kind does not develop or morph into harassment that would violate the Maine Human Rights Act or federal law, it makes sense to encourage reporting of any such behavior and to deal with it early on.  At the same time, it is important to remind employees that just because a situation feels “hostile” does not mean it is illegal.  The term “hostile work environment” is a legal term that refers only to illegal conduct but employees tend to throw around the term as if anything hostile must therefore be illegal.  The bottom line is that a company should attempt to discourage and deal with hostile and negative behavior regardless of whether an analysis would show it was illegal or not.  If such behavior would erode productivity or cause lower morale or lead employees to call lawyers or undercut the company values, there isn’t need to spend a lot of time trying to figure out if it is technically illegal; just nip it in the bud.  The good news is that such proactive conduct also helps reduce risk of claims.

This article is not legal advice but should be considered as general guidance in the area of employee handbooks in Maine.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine (rwebber@lcwlaw.com).  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.