by Gary Stedronsky | Mar 6, 2014 | Labor and Employment
We’ve recently seen an increase in the number of FMLA “Health Care Provider” certifications that are completed by chiropractors. As many of you know, the FMLA grants eligible employees up to 12 weeks of unpaid leave for several reasons, including a serious health condition. An employer is permitted to request a certification from an employee’s health care provider to verify that the employee does indeed have a serious health condition Many school districts and other employers have been accepting these certifications from chiropractors without realizing that it is very rare that such a certification must be accepted.
Although many people seek treatment from chiropractors for very serious injuries and ailments, the Department of Labor has concluded that a chiropractor is not to be considered a health care provider unless the treatment provided consists of “manual manipulation of the spine to correct a subluxation.” This diagnosis must also be demonstrated by an X-ray to exist.
This means that school districts and other employers are not required to accept FMLA certifications from chiropractors unless an employee has seen the chiropractor for this one specific reason. We’ve found that many clients mistakenly accept certifications from chiropractors for many other ailments. So, the next time you see a FMLA Health Care Provider certification from a chiropractor you will likely be able to refuse to accept it unless it is for the limited treatment and diagnosis of manual manipulation of the spine to correct a subluxation. The certification must also indicate that such a diagnosis was confirmed to exist by an X-ray.
For more information on this topic and a list of other health care providers that can complete FMLA Health Care Provider certifications, please see the U.S. Department of Labor’s website at:
http://www.dol.gov/whd/regs/compliance/1421.htm
by Gary Stedronsky | Dec 12, 2013 | General, Labor and Employment
The Strasburg-Franklin Local School District provided its teachers with school district laptops. A teacher asked if he could take his laptop home for the summer and was told that he could but that he needed to return it by June 30th. The teacher failed to return the laptop until late July.
The IT department inspected the laptop upon return because the teacher had previously downloaded a virus. The IT department discovered 84 thumbnails of graphic, sexual images in the laptop’s temporary internet files. The images were all cached within 23 minutes on one day.
The teacher claimed he had searched for the actor “Shane Diesel” on his computer because the actor was mentioned in a conversation earlier that day. He also claimed that “porn thumbnail pop-ups” appeared when he clicked on a link in a Wikipedia page.
The school district initiated termination proceedings and a hearing was held with a state referee. The referee found that the teacher’s actions could give rise to the suspension or termination of his teaching contract; but mitigating factors suggested a suspension rather than a termination (the teacher had good performance reviews). Therefore, the referee recommended a suspension of 45 days for the failure to return the laptop by June 30th and 45 more days for inappropriate use of a school computer.
The school district accepted the referee’s findings of fact but rejected the proposed discipline and terminated the teacher. The teacher appealed to the court of common pleas. The court of common pleas reversed the school district’s termination because it found that the images were not hostile to the community and this was private conduct that had no impact on his professional duties. The teacher was then reinstated with full back pay.
The school district appealed to the Fifth District Court of Appeals. The appellate court concluded that it could only overturn the lower court if the lower court’s decision constituted an “abuse of discretion” – a difficult standard of review for the school district to overcome.
The appellate court denied the school district’s appeal finding no abuse of discretion in the lower court’s ruling. The appellate court reviewed other termination decisions in Ohio and found that appellate courts will affirm a board of education’s termination decision when the teacher’s behavior had or could have had a serious effect on the school system. In this case, the appellate court found that the teacher’s actions did not occur on school property and did not involve any students. This also was not a criminal act. Therefore, the appellate court determined that the lower court did not abuse its discretion because the conduct had no impact on the teacher’s professional duties and his actions were not hostile to the school community.
The discovery of pornography on a school district computer is employment misconduct that is generally considered a “slam dunk” termination case (alcohol, drugs, violence, and sexual conduct are some others). The teacher was unquestionably wrong in using the school district’s laptop in this manner. In fact, readers are cautioned not to utilize their school computers or devices to Google “Shane Diesel” out of curiosity. Trust me, the Google results alone should have told this teacher that this was off-limits. Yet, the teacher clicked-away and the state referee and courts overturned the school district’s termination decision because the teacher’s behavior supposedly had no impact on his professional duties. This decision demonstrates that there really are no “slam dunk” termination cases. Every decision to terminate a teacher must be made with the understanding that the time and money invested in a termination case may not always result in the desired outcome – no matter how strong you think the case is.
Winland v. Strasburg-Franklin Local School District Board of Education, Fifth District Court of Appeals, Case No. 12 AP 10 0058
by Gary Stedronsky | Oct 17, 2013 | General
A California jury recently awarded a father $2,850,000 after a school district released his son to an unauthorized person who kidnapped the child and took him to Mexico.
The school was aware that the student’s mother had been deported to Mexico in 2010. Thereafter, the child went to live with his father in California. One day a person identifying herself as the boy’s mother called the school and told the office manager that the child had a doctor’s appointment and that she was unable to take him because of work. She informed the school that her boyfriend would pick the boy up to take him to the appointment. The office manager noticed that the boyfriend was not listed as an emergency contact but told the mother that she would allow him to pick the child up anyway as long as he showed identification.
The supposed boyfriend of the mother appeared, presented identification, and was permitted to take the child from school. Unfortunately, the man kidnapped the child to Mexico where he is believed to be living with his mother.
The father sued the school district on behalf of himself and his son claiming deprivation of father-son contact, negligence, and intentional infliction of emotional distress. The jury awarded the father $2,000,000 and the son $850,000.
The main reason that the school district was found liable was because it failed to follow its policy concerning the release of students. The policy specifically stated that students would not be released to anyone who was not listed as an emergency contact. The school unsuccessfully argued that a parent’s verbal consent can override the specific policy.
This case represents the importance of steadfastly following school district policies and procedures. The failure to do so in this case resulted in the student’s kidnapping and the school district being responsible for nearly $3,000,000 in damages. The school district’s policy on the release of students was sound. In fact, our office recommends similar language in policy. Exceptions could also be permitted (for instance, written consent from a parent) but any such exceptions should be clearly delineated in policy and the policy must be strictly complied with, especially in the situation where both parents do not have legal and residential custody of the child. Even the best policy is worthless if it’s not followed.
by Gary Stedronsky | May 21, 2013 | General
The Tenth Circuit Court of Appeals in Denver recently upheld a school district’s use of a “timeout room” to discipline and briefly restrain a developmentally disabled student with disruptive behavioral issues. The student, J.M., was five years old and was known to throw tantrums, yell, spit, and kick in class. As a result, he was often placed in the timeout room, described as large enough for a student and teacher to fit comfortably and equipped with a light and window. The district stated that he was placed in the room around 30 times over a span of two school years and was never kept in the room longer than four minutes.
The student’s parents sued individual school officials, including teachers and the principal, and the school district, claiming that use of the timeout room was a violation of their child’s constitutional rights under a 14th Amendment due process “shocks the conscience” analysis. To succeed on this type of claim, the challenged behavior must amount to a “brutal and inhumane” abuse of official power literally shocking the conscience. This standard is applied in all school discipline cases, not just cases involving school-inflicted corporal punishment.
The parents’ claim was based upon the district’s use of the timeout room in general, as well as a specific incident in which the school principal forced J.M. into the room and placed a chair in front of the door. While the Court acknowledged these particular details surrounding use of the timeout room were “a careless or unwise excess of zeal,” it nonetheless held that no conscience-shocking events had occurred. Therefore, the Court found no constitutional violation.
Because the Court found that no individual officials had violated J.M.’s constitutional rights, it stated that the principal also could not be liable under a theory of supervisory liability and the district could not be liable because the challenged conduct was not pursuant to official policy or custom.
The parents also attempted to raise a Fourth Amendment claim that the timeout room was a “seizure” that should have been analyzed under a reasonableness standard. Analyzing a school discipline case under this standard is more favorable to plaintiffs because it is easier to prove than the “shocks the conscience” standard. While the parents did not properly raise the claim and thus were barred procedurally, the Court stated that it is not well settled law that a court has any obligation in a school discipline case of this nature to evaluate a Fourth Amendment claim. Thus, even if the parents had properly raised the claim, the Court would have declined to consider it.
Although in this case the Tenth Circuit remained faithful to the Fourteenth Amendment shocks-the-conscience standard and declined to even additionally consider the Fourth Amendment reasonableness standard, in recent years other circuits have begun to allow such claims in analyzing various types of school discipline. Cases from the Ninth and Third circuits have involved excessive force or detention by school officials. In the Seventh Circuit, the Fourth Amendment standard was applied when a teacher “seized” a student by attempting to drag her out of the classroom by her elbow. In these cases, courts will often allow both standards to be applied to the conduct at issue. Because a Fourth Amendment reasonableness standard is arguably more lenient and plaintiff-friendly, school districts should be aware of the potential consequences of discipline if analyzed under both the Fourteenth and Fourth Amendments.
by Gary Stedronsky | Dec 27, 2012 | Student Education and Discipline
Over the past several years increased attention has been paid to head injuries and concussions in sports. The NFL seems to capture most of the headlines in this area; however, head injuries can occur in any sport and at any level. Last week, Governor John Kasich signed House Bill 143, which is designed to protect youth athletes who suffer concussions.
The Bill requires parents to submit a signed form acknowledging receipt of a concussion and head injury information sheet that will be created by the Department of Health. Students are prohibited from practicing or competing in interscholastic athletics until this form has been submitted. Districts must also require all coaches and referees to hold a pupil-activity permit issued by the State Board of Education (referees may satisfy the requirement through specified alternative training programs). The Bill also requires the State Board of Education to require completion of brain trauma and brain injury management training prior to issuing pupil-activity permits
An important component of the Bill is the requirement that student-athletes be removed from athletics when exhibiting signs, symptoms, or behaviors consistent with a concussion or similar head injury. Once a student is removed by a coach or referee, the student is not allowed to return to practice or competition for at least 24 hours and until assessed and cleared for return by a physician. The physician must provide written clearance that it is safe for the student to resume participation.
Also of importance is the immunity from liability that is provided by the Bill. School authorities, employees, and volunteers (including coaches and referees) are protected from civil liability for injury, death, or loss that arises from providing the services or duties required by the Bill, unless their act or omission constituted willful or wanton misconduct.
Under the Bill, the Department of Health is required to create a concussion and head injury information sheet for sports participants and to provide a link on its website to one or more free online concussion training programs.
