SBM |Health Care Law Section
January 2010 e-Newsletter
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State Bar of Michigan Health Care Law Section
PO Box 366, Dimondale, MI 48821-0366
Phone: (517) 281-8485
Chair's Letter from Joanne Lax
Thank you for participating in the 2009-2010 Bar year.  The Health Care Law Section is planning educational programs, substantive law publications, practice aids, and a community service opportunity for the membership.  We have something to benefit all health lawyers, and we hope that you will take advantage of our offerings.
Educational Programs
The Substantive Law Committee is presenting a complimentary teleconference on Thursday, January 21, 2010 on the subject of the Medicare Secondary Payor Act.  Our featured speaker will be Donna MacKenzie, of Olsman, Mueller, Wallace & MacKenzie, and our moderator will be Ronni Tischler of Miller & Tischler, PC.  Please contact the HCLS administrative assistant, Suzette Allen at, for registration information, or visit our web site at

If you are unable to listen to the live teleconference, an audio file of the teleconference will be available for complimentary downloading from the HCLS web site following the program.  Please watch your email for information about the audio file.

The Substantive Law Committee is also planning a complimentary teleconference on Thursday, February 25, 2010 on the subject of the False Claims Act, which supplements the program that we provided last November.  Please watch your email for details, and registration information.

The Health Care Law Section is once again pleased to join with ICLE to co-sponsor the annual Health Law Institute on March 11-12, 2010 at the Inn at St. John in Plymouth, Michigan.  This day and a half in-person seminar has for many years been the Health Care Law Section's showcase educational program.  In addition to plenary and breakout educational sessions, the program offers many networking opportunities, including a cocktail hour at the end of the first day. Please mark your calendar and plan to join us in March for an up-to-date, informative seminar.  For more information, please contact ICLE.
In This Issue
Chair's Letter
Educational Programs
Call For Authors
Team Naming Winners
Point of Substantive Law: Medical Leave Policies Under EEOC Attack
Call for Authors 
We are now including short substantive articles in our monthly e-newsletter.  If you would like to be considered as an author, please email your suggested topic to Joanne Lax at  Articles should be approximately 250 to 500 words in length, and must be original to the submitter and previously unpublished except for firm newsletters.  Selected articles will be distributed via our e-Newsletter and posted on our website.
Congratulations to Our Team Naming Contest Winners
The Health Care Law Section is pleased to announce the winners of our contest to name our team for the 2010 Susan G. Komen Detroit Race for the Cure.  Two HCLS members each independently submitted the winning name - "Counselors for the Cure".  Our winners are Ronni Tischler and Louis Szura.  Thanks to everyone who submitted suggestions - your creativity and interest are much appreciated!
The 2010 Race for the Cure will be held on May 22, 2010, at Comerica Park.  Walkers, runners, babies in strollers, and even those of us who would rather sit are welcome to join us in this community-wide fundraiser to cure breast cancer.  For more information, contact Monica Navarro at
Point of Substative Law
The article that follows represents the views of the author, and not the views of the Health Care Law Section.  It is current as of the date of this newsletter.  Many thanks to Thomas W. H. Barlow, a  partner in the Detroit office of Jackson Lewis LLP, a national boutique devoted exclusively to the representation of management in labor and employment matters.

Recent EEOC lawsuits and investigations indicate that the agency is closely scrutinizing leave of absence policies to ensure compliance with the obligation to provide leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).
In 2008 the EEOC brought suit against a Detroit area hospital asserting that it had violated the ADA when it terminated an employee who failed to return to work following a one-year medical leave.  The policy relied upon had been in place for many years, had been applied in a neutral fashion regardless of the reason for the failure to return, and appeared in both employee handbooks and collective bargaining agreements. In fact, the union supported the hospital's enforcement of the policy and declined to grieve the termination.  Nonetheless the EEOC sued on behalf of the aggrieved employee.  Faced with the daunting prospect of litigating with a federal agency the hospital settled the case by reinstating the employee and paying $45,000 in damages.  Rather than an isolated incident, this case clearly represented the leading edge of new EEOC activity.  For example, the following developments occurred in the last half of 2009 alone, and illustrate the agency's aggressive attack on employer leave policies when ADA violations regarding employer leave policies are alleged (links reference EEOC press releases): 
Perhaps the most telling sign of the EEOC's close scrutiny of employer leave policies is the statement from the EEOC's Chicago Regional Attorney John Hendrickson upon announcing the consent decree in the Sears case.  Hendrickson stated, "[t]he era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over . . . Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law."

These developments suggest that healthcare providers should ensure that employee leave, attendance and other practices are flexible and allow employees an opportunity to request a reasonable accommodation.