News and Insights

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We are pleased to announce today that Chambers USA ranked Milligan Lawless, P.C. and 3 of our attorneys among the best in Arizona for 2022.  Among Arizona law firms, Milligan Lawless achieved a Band 1 ranking, Chambers USA’s highest recognition, in the Healthcare practice area.

The firm received the following “Leading Individual” rankings for Phoenix attorneys:

Bryan S. Bailey – Healthcare, Band 2
Steven T. Lawrence – Corporate/M&A, Band 3
Robert J. Milligan – Healthcare, Band 1

Chambers USA is an annual ranking that assesses each law firm and attorney on technical legal ability, professional conduct, client service, commercial awareness/astuteness, diligence, commitment and other qualities most valued by their clients. Additionally, independent interviews with clients and confidential submissions of law firms are part of the Chambers research and evaluation process.

We are pleased to announce today that Chambers USA ranked Milligan Lawless, P.C. and 3 of our attorneys among the best in Arizona for 2020.  Among Arizona law firms, Milligan Lawless achieved a Band 1 ranking, Chambers USA’s highest recognition, in the Healthcare practice area.

The firm received the following “Leading Individual” rankings for Phoenix attorneys:

  • Bryan S. Bailey – Healthcare, Band 2
  • Steven T. Lawrence – Corporate/M&A, Band 3
  • Robert J. Milligan – Healthcare, Band 1

Chambers USA is an annual ranking that assesses each law firm and attorney on technical legal ability, professional conduct, client service, commercial awareness/astuteness, diligence, commitment and other qualities most valued by their clients. Additionally, independent interviews with clients and confidential submissions of law firms are part of the Chambers research and evaluation process.

Bryan S. Bailey
Bryan S. Bailey
Robert J. Milligan
Robert J. Milligan
Steven T. Lawrence
Steven T. Lawrence

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with a disability, unless doing so would trigger significant operational difficulties or expenses for the employer. Employees on leave for a disability may request reasonable accommodations in order to return to work. The employee may make the request, or the request may be outlined in a doctor’s note releasing the employee to return to work with certain restrictions.

When an employer becomes aware of an employee’s need for a possible accommodation, it is the duty of the employer to discuss the accommodation needs with the employee. Employers run afoul of the ADA when they impose “100% healed or recovered” policies. These policies refer to a practice mandating an employee be released to work without any restrictions before she may return to work. For example, if an employee is on medical leave for a surgery to address a disability and the employee’s physician releases her to work with a 20-pound lifting restriction, the employer cannot refuse to allow the employee to return to work with the lifting restriction if the employee’s essential functions do not require lifting 20 pounds. To do so would violate the ADA.

In May 2016, the Equal Employment Opportunity Commission (EEOC) issued guidance entitled “Employer-Provided Leave and the Americans with Disabilities Act.” Since issuing that guidance, the EEOC has been targeting employers with 100% Healed Policies. Recently, the EEOC set its sights on Corizon Health Inc., and Corizon LLC, (Corizon), nationwide health care companies that operate in Phoenix, Arizona.

On September 19, 2018, the EEOC filed suit against Corizon in the District of Arizona. The EEOC suit alleges Corizon violated federal law by discriminating against employees with a 100% healed policy. The EEOC states Corizon required employees with disabilities to be 100% healed or to be without any medical restrictions before they were allowed to return to work. The EEOC states this practice is a clear violation of the ADA.

The EEOC’s Phoenix Office, in filing this suit, has made clear it is committed to challenging 100% healed policies. Elizabeth Cadle, District Director of the EEOC’s Phoenix District Office, stated in a press release,

Ashley Petefish
Author: Ashley Petefish

“Employers should never have 100% return to work policies that require employees to have no medical restrictions. That policy tells employees that the company will not provide reasonable accommodations for employees with medical restrictions.”

What does this mean for Arizona employers?

If you are an Arizona employer with a 100% healed policy, you should contact legal counsel immediately to discuss policy revisions. While the ADA does not require employers to return every employee to work after medical leave, the law may prohibit automatic denials based on broad 100% healed requirements. Employers should consult with legal counsel to ensure their policies support a case-by-case analysis of employee accommodation requests. If you have a 100% healed policy, or have questions or concerns about your current accommodation and equal employment policies, contact the Milligan Lawless attorney with whom you usually work.

In the wake of the #MeToo movement, the United States Equal Employment Opportunity Commission (EEOC) has sent a message to employers that cracking down on workplace sexual harassment continues to be an enforcement priority. Immediately following a meeting last June that reconvened the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the agency announced the filing of seven separate lawsuits against employers throughout the country over allegations of sexual harassment and other forms of misconduct.

The EEOC’s actions demonstrate the need for employers to take proactive measures toward eliminating and preventing sexual harassment within their workforce.

What is Sexual Harassment?

Sexual harassment is broadly defined as

  • unwelcome sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature,
  • when such conduct explicitly or implicitly affects the terms and conditions of an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating or hostile work environment.

Sexual harassment can take myriad forms, including all of the following: commenting on an individual’s body or sexual attractiveness; requesting sexual favors; transmitting or displaying sexually explicit emails, texts, or images; telling obscene jokes; making offensive gestures; and engaging in unwanted touching.

Sexual harassment is considered a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

Sexual harassment also represents significant economic costs to employers in the form of increased absenteeism, reduced productivity, higher staff turnover, and the financial/reputational damage of high-profile payouts.

A Proactive Approach

The EEOC has made clear that employers are charged with exercising reasonable care to identify and correct sexual harassment in the workplace.  To that end, employers should consider these practical steps:

Adopt a Written Anti-Harassment Policy

An employer can help minimize its exposure by adopting and communicating a strong, written anti-harassment policy.  The EEOC advises that the policy should, at a minimum, include the following elements:

  • A clear statement that harassment is not tolerated
  • The definition of sexual harassment
  • A clearly described complaint process that provides more than one avenue through which employees can report complaints – an employee’s direct supervisor should not be the only person to whom a complaint may be raised
  • Assurance that the employer protects the confidentiality of complaints to the extent possible and does not retaliate against employees who report complaints
  • Assurance that the employer will promptly and thoroughly investigate complaints and take immediate corrective and appropriate action when it has determined that harassment has occurred

Employers should include the policy in their employee handbooks and distribute to all employees.

Provide Effective Training

Employers should provide sexual harassment training to all levels of employees.  Employers should also consider providing additional and separate training to management.

The EEOC states that anti-harassment training is most effective when it is, among other things:

  • Championed by senior management
  • Repeated and reinforced regularly
  • Provided in a clear, easy to understand style and format
  • Provided in all languages commonly used by employees
  • Tailored to the specific workplace and workforce
  • Conducted by qualified, live, interactive trainers or, if live training is not available, designed to encourage active participation
  • Routinely evaluated by participants and revised if necessary

Conduct Appropriate Investigations & Take Effective Remedial Action  

When an employee reports a complaint of sexual harassment, employers can help protect themselves by promptly investigating the claim.  As soon as an employer learns of a complaint, it should determine whether a fact-finding investigation is necessary and how it will be conducted.  To the extent possible, investigations should be kept confidential.

In the event that an employer determines that harassment has occurred, it must undertake immediate and appropriate corrective measures.  Corrective measures should be designed to stop the harassment, correct its effects on the complainant, and ensure that the harassment does not recur.

Employers should keep in mind that corrective measures that adversely affect or penalize the complainant could constitute unlawful retaliation.

Kylie Mote
Kylie Mote

Consult with Legal Counsel for Additional Information

Employers that would like more information about workplace sexual harassment, including advice on creating and implementing effective anti-harassment policies, may contact the attorneys at Milligan Lawless for assistance.

Miranda A. Preston
iranda A. Preston

On April 30th, 2018, Dr. Rita Luthra was convicted of violating the HIPAA Privacy Rule and of obstruction of a criminal health care investigation.  A federal jury found that Dr. Luthra allowed a pharmaceutical sales representative to access her patient records and lied to federal investigators. Criminal charges under the federal Anti-Kickback Statute (“AKS”) were alleged initially but subsequently dropped.

Dr. Luthra’s conviction stems from her involvement with a pharmaceutical sales representative with Warner Chilcott. Warner Chilcott was the subject of a criminal investigation by the U.S. Department of Justice (DOJ) in 2015.  The investigation resulted in Warner Chilcott pleading guilty to a felony charge of health care fraud and agreeing to pay $125 million to resolve criminal and civil liability arising from alleged illegal marketing practices of certain drugs.

According to the government, the Warner Chilcott sales representative asked Dr. Luthra to participate in the company’s speaker program because Dr. Luthra prescribed a high volume of osteoporosis medication. Dr. Luthra agreed and spoke at medical education and speaker training events held in her office. The events involved Dr. Luthra speaking to the sales representative for about thirty minutes while she ate food provided by the representative for Luthra and her office staff. Warner Chilcott paid Dr. Luthra approximately $23,500 for her services.

In January 2011, Warner Chilcott launched a new osteoporosis drug which Dr. Luthra prescribed. Many insurance companies required a prior authorization before covering the new drug. In response to receiving numerous denials for Dr. Luthra’s prescriptions for the new drug, she asked the sales representative to assist one of her medical assistants with obtaining prior authorizations. The sales representative agreed, was given access to Dr. Luthra’s medical records to complete the prior authorizations, and filled out the prior authorizations.

Dr. Luthra later provided false information to OIG investigators when interviewed about her relationship with Warner Chilcott. She was convicted of a criminal violation of HIPAA for the improper disclosure of her patients’ protected health information to the sales representative. It is illegal to knowingly disclose protected health information in violation of the Privacy Rule. Most HIPAA enforcement activities are in the form of civil enforcement. However, the Privacy Rule also establishes criminal penalties for certain wrongful disclosures of protected health information.

Dr. Luthra’s sentencing has not yet been scheduled. Nonetheless, Dr. Luthra’s HIPAA violation provides for a sentence of up to one year in prison and/or a fine of up to $50,000. The obstruction conviction carries a higher potential penalty of up to five years in prison and a fine of up to $250,000.

While criminal prosecutions of HIPAA violations are rare, this case serves as a reminder that HIPAA is more than a series of privacy and security rules; HIPAA establishes criminal liability and potential jail time for HIPAA violations. This case reflects the DOJ’s continuing scrutiny of physician-pharmaceutical manufacturer relationships, particularly those that can affect health care decision making. Providers should be mindful of their relationships with pharmaceutical companies, and third parties who may have access to protected health information. Moreover, if a provider is the subject of an investigation, he or she should be truthful and engage competent counsel at the early stages of the investigation.

For more information, or if you need assistance with an investigation or evaluating whether your relationships comply with HIPAA, please contact Miranda Preston or another health care attorney at Milligan Lawless.

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