Day Pitney Boston News, Fall 2009
Publisher: Day Pitney Newsletter
11/23/2009

Responding to the H1N1 Virus in the Workplace

By
John P. McLafferty
Partner
Employment Litigation

and

Joy E. Taylor
Associate
Employment Litigation

With the widespread emergence of the H1N1 virus, also known as the swine flu, in addition to regularly recurring seasonal flu, this year's flu season promises to be unpredictable and uncertain. Employers need to be prepared to respond to myriad issues presented by this pandemic, to ensure the health and safety of employees and minimize any disruption to ongoing business operations in the event of a widespread and severe flu outbreak. The following discussion touches briefly on some of the issues employers should consider in meeting those challenges.

Preventing the Spread of the Flu

Preventing the spread of the flu is the frontline defense for combating the H1N1 virus. Employers should remind employees of common sense actions they can take to protect their health and that of others, including regular hand washing, coughing and sneezing etiquette, use of hand sanitizers and proper tissue usage and disposal. The Centers for Disease Control and Prevention (CDC) also suggest that if the pandemic becomes more severe, employers consider canceling business-related travel and meetings, spacing workers farther apart, increasing use of telecommuting, and using staggered shifts to reduce the number of workers in the workplace at one time.[1] Employers may also encourage employees to receive the H1N1 vaccination, although most employers cannot require employees to be vaccinated.

Complying With Federal And State Discrimination Laws

Managing flu outbreaks in the workplace may implicate federal and state discrimination laws, such as the Americans with Disabilities Act ("ADA"). Seasonal flu generally is not considered a "disability" under federal law. Employers should be aware, however, that in severe cases, the impairments associated with the H1N1 virus may be considered a disability. Further, many states' laws provide for broader definitions of "disability" than the ADA. Accordingly, employers should exercise caution before taking any adverse action against an employee related to the seasonal flu or H1N1 virus.

Disability - Related Inquiries And Medical Examinations

The ADA prohibits employers from making disability-related inquiries or requiring medical examinations of current employees unless the inquiries or exams are job-related and consistent with business necessity. According to guidance recently issued by the Equal Employment Opportunity Commission (EEOC),[2] asking an employee about symptoms of a cold or the flu or why the employee did not report to work are not disability-related and is allowed. Similarly, asking employees who have been out with the flu to provide a doctor's note certifying that they are fit to return to work is not disability-related and is permitted under the ADA. Only under very limited circumstances may employers make disability-related inquiries, such as asking whether employees have medical conditions that make them especially vulnerable to influenza complications. In all circumstances, employers should maintain the confidentiality of any information they receive about employee flu-related conditions.

Sending Employees Home And Telecommuting

The CDC recommends that employees who have flu-like symptoms at work should leave the workplace. The EEOC notes that advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Employers may also send workers home under the ADA if, based on objective, factual information, the illness is serious enough to pose a direct threat to others. Employers may also encourage employees to telecommute, to minimize disease transmission from physical contact in the workplace.

Providing Reasonable Accommodations

In addition to requiring employers to accommodate individuals who have flu-related disabilities, the ADA and state law may require that employers provide reasonable accommodations to individuals who do not have the flu but who have respiratory-related or other disabilities which make them more susceptible to flu-related complications. Such accommodations may include working from home to reduce the employee's chances of infection.

Enforcement Of Leave Policies

The CDC recommends that employees with flu-like symptoms remain out of work for 24 hours after their symptoms have resolved. As a result, employers should consider exercising flexibility in the application of standard sick leave and absence control policies to meet the needs of employees who face particular challenges reporting to work during a severe flu pandemic, due to their own illness or their need to care for family members with the flu or who are affected by flu-related school closings and similar disruptions. In addition, depending on the nature and severity of the illness, employees who are not working because of the flu or who are caring for family members with the flu may be entitled to leave under the federal Family and Medical Leave Act and corresponding state leave laws.

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[1] http://cdc.gov/h1n1flu/business/guidance/
[2] http://www.eeoc.gov/facts/pandemic_flu.html
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Probate Litigators Save the Farm

Mark E. Swirbalus
Partner
Probate Litigation / Probate Controversies

Chalk up another victory for our probate litigators. Mark Swirbalus and Erica Tennyson won a hotly-contested trial in the Essex County Probate and Family Court last year, and in September the Appeals Court affirmed the decision.

Our client Lisa Culverwell was widowed in 2005. Her husband Jim Culverwell had suffered a heart attack, experienced complications from his diabetes, and then passed away after a six-month stay in the Lahey Clinic's surgical intensive care unit. Jim was in his mid-40s when he died, and Lisa was in her early 30s.

Perhaps not surprisingly, given their relative youth, Jim and Lisa had neglected to do any estate planning. Two weeks before his death, however, from his hospital bed, Jim made his mark on a deed - with an "X" - transferring ownership of his 10-acre horse farm in Hamilton, Mass. from himself individually to Lisa and himself as tenants by the entirety. Tenancy by the entirety is a joint estate in property held by a husband and wife, with each having a right of survivorship, so that upon the death of one, the survivor automatically takes title to the whole property.

But Lisa's ownership of the farm would not be so automatic. Almost one year after Jim's death - just one day shy of the first anniversary of Jim's death, to be exact - his father filed a lawsuit. He accused Lisa of undue influence and fraud in procuring the deed and challenged Jim's mental capacity to execute the deed, claiming that Jim was comatose and could not have understood its effect.

If Jim's father had prevailed in the lawsuit, Lisa would have lost the farm, which had been her home with Jim since shortly after they had started dating a decade earlier, and which she had devoted herself to restoring to its former glory as the headquarters for the United States Equestrian Team. The farm was also the base for her budding business as a children's riding instructor.

The litigation was emotionally-charged and intense. Jim's father, a successful businessman and restaurateur, attempted to use his financial advantage over Lisa to force her to surrender her rights. We were able to work with Lisa, though, to nullify the economic leverage being applied by Jim's father.

Ultimately, the documents and the testimony elicited at trial - from Jim's treating nurse, the notary public who acknowledged Jim's mark on the deed, a board certified neurologist, Lisa, and Jim's father himself - exposed the weakness of the claims. For example, contrary to the claim that Jim had no ability to communicate because of his tracheotomy, the testimony showed that Jim could and did communicate with gestures and by mouthing words. In fact, Jim's father admitted that he communicated with Jim about Jim's stock portfolio, among other things, and Lisa, who spent every day by Jim's side in his hospital room, testified that she communicated with both Jim and his father about the deed for months before it was executed.

As the trial progressed, it became clear that despite his claims, Jim's father was aware that Jim wanted to execute the deed and leave the farm to Lisa. Jim's father even explained that he wanted to be present in Jim's hospital room to make sure that Jim understood what he was doing. Neither Jim's father nor anyone else who was present, including the nurse and the notary public, objected at the time to the execution of the deed. To the contrary, when Jim was asked whether he wanted to execute the deed, everyone who was present, including Jim's father, agreed that he had nodded his head affirmatively.

In somewhat of a "Perry Mason" moment, Jim's father conceded that he objected to the deed only after realizing that he and Jim's mother would receive more from Jim's estate if the deed were ruled invalid. Prior to filing the lawsuit, Jim's father had given every indication that he believed Jim to be competent, including by signing an affidavit in support of Lisa's desire to give birth to Jim's child posthumously by in vitro fertilization. In that affidavit, Jim's father stated that he had "no doubt" as to Jim's competence.

After hearing the evidence, the trial court, in its decision, seriously questioned the motivation of Jim's father in challenging the validity of the deed.

Given all that was at stake for Lisa, this was a particularly satisfying victory. Lisa is now living and working at the farm, maintaining it as she and Jim had done together, and her business as a children's riding instructor is thriving. She has also executed an estate plan.
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Death and Taxes: Here to Stay

By
Stephen Ziobrowski
Partner
Tax, Trusts and Estates

It seems hard to believe, but in about six weeks, the federal estate tax is scheduled to be repealed. The repeal lasts only one year, however. This repeal was the result of a political compromise. Over the last nine years, the estate tax has been gradually reduced. The top estate tax rate was lowered from 55 percent to 45 percent and the estate tax exemption available to every taxpayer was increased from $1 million to $3.5 million. For 2010, the federal estate tax is repealed entirely, which gave rise to grim jokes that 2010 could be a good year to "Throw Momma From the Train."

In 2011, the federal estate tax is scheduled to return to 2001 rules, i.e., a top marginal rate of 55 percent and an exemption of $1 million. Although many expected Congress to do something about this untenable situation long before now, we are just starting to see specific legislative proposals. All these proposals would preserve 2009 estate tax law through 2010, but after that, there are significant differences.

The Senate Finance Committee is expected to introduce a bill that would extend current rates and exemptions for one year. Senator Max Baucus, the Chairman of the Committee, has said that he would prefer to extend current law for a longer period, but the Finance Committee is apparently unwilling to do that at the present time. In the House, a bill called the Estate Tax Relief Act has been introduced. This bill would extend current law for one year and then gradually increase the estate tax exemption from $3.5 million to $5 million over 10 years. Over the same period, the top estate tax rate would be reduced from 45 percent to 35 percent. Meanwhile, the chair of the House Ways and Means Committee is reported to be drafting separate legislation that would make 2009 estate tax law permanent.

So where does this leave us? It appears very likely that Congress will act by the end of this year to extend the current estate tax for at least one year. Beyond that, there seems to be little sentiment for repealing the estate tax or returning to 2001 rules. As a result, it is fair to expect that the federal estate tax will be in place more or less in its present form for the foreseeable future.

This means that people should continue to take appropriate steps to reduce their taxable estates and to find planning opportunities. For example, this may be a particularly good time to make gifts of stock or real estate or to sell interests in a family business to the next generation.
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Spotlight: Please Meet Our Newest Boston Partner

Carrie Webb Olson
One International Place
Boston, MA 02110
T: (617) 345 4767
F: (617) 345 4745

Learn more about Carrie Carrie is a partner in Day Pitney's Intellectual Property group, where she has an active practice focusing on all aspects of copyright and trademark law, from acquisition and maintenance to exploitation and enforcement matters. Carrie provides general counseling regarding the selection, use and protection of company trademarks, as well as overall intellectual property management to clients ranging in size from domestic start-ups to international Fortune 500 companies in a variety of industry sectors.

Carrie is known for her broad-based experience and practical approach. She is an active member of the International Trademark Association and sits on the Alternative Dispute Resolution Committee and the INTA Roundtable Project Team.

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