"Obamacare is the Law of the Land"

Republican Speaker of the House John Boehner's admission makes it clear that the reelection of President Barack Obama has ensured the longevity of Obamacare. The President defeated Governor Mitt Romney earlier this month, winning 332 Electoral College votes to Governor Romney's 206. With Obamacare now enroute to full implementation over the next few years, it is important to understand the implications for health care providers.

Oftentimes, an employer may feel that it is placed between the proverbial "rock and a hard place" with regard to certain employment concerns. Under New Jersey law, an employer is prohibited from firing an employee solely because the employee filed a claim for workers' compensation. Consider the following scenario:

Arthur, employed by a skilled nursing facility (SNF) as a certified nursing assistant, injures his back while working. Arthur immediately seeks treatment for his injury, with the SNF's doctor diagnosing him as having suffered a back sprain rendering it impossible for him to continue working in his present capacity. Arthur thereafter files for, and receives, workers' compensation. The physician, however, makes a note of the fact that Arthur, while unable to carry out his former duties, is still capable of carrying out modified light duty. Consequently, pursuant to the doctor's diagnosis, the SNF puts Arthur on modified light duty while collecting workers' compensation.

A few weeks into his modified duty, however, Arthur begins to miss work without providing any excuses for his absences. Calls to Arthur's phone go unanswered and unreturned. In the space of just a few months, Arthur misses eleven days of work and is written up by the administration for unexplained and unsanctioned call-outs. The director of nursing is now faced with a dilemma: can he or she fire Arthur for excessive absenteeism notwithstanding the fact that he was on light-duty, or will that be deemed a "retaliatory discharge," or punishment for filing a workers' compensation claim, and thus render the SNF liable under New Jersey law?

Fortunately for New Jersey SNFs, New Jersey courts have already addressed this issue. Courts have held that an employer will be protected should it have a neutral policy for absences which does not specifically target any specific employee. Merely pointing to the fact that an employee collected workers' compensation and was subsequently fired is inadequate to prove a case of retaliatory discharge. Thus, in this case, the SNF will not be in violation of the law prohibiting retaliatory discharge should it choose to fire Arthur. The fact that Arthur was put on modified light-duty and was receiving workers' compensation is irrelevant as long as the SNF did not specifically target Arthur. In sum, as long as a business has clear and unambiguous policies regarding call-outs and unexcused absenteeism it will not be subject to liability for terminating employees that violate those policies, even if those employees are receiving workers' compensation and are on modified light duty.