The Americans with Disability Act (“ADA”) demands that when an employer orders an employee to submit to a medical and/or psychological examination to establish the employee’s fitness-for-duty, the employer is responsible for the costs of the ordered examinations.  
Should the examiner’s report find the employee is not fit-for-duty, the ADA provides that the employee may obtain a second opinion, from a practitioner of his choice, at the employee’s expense.  
The U.S. Equal Employment Opportunity Commission’s guidance on Disability Inquiries and Medical Examinations at question 12:
12. May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer's choice?
Yes. The determination that an employee poses a direct threat must be based on an individualized assessment of the employee's present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence.  To meet this burden, an employer may want to have the employee examined by a health care professional of its choice who has expertise in the employee's specific  condition and can provide medical information that allows the employer to determine the effects of the condition on the employee's ability to perform his/her job. Any medical examination, however, must be limited to determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation. An employer also must pay all costs associated with the employee's visit(s) to its health care professional.
In essence, the employer must be able to reasonably articulate why they feel you are not capable of performing your essential job functions.  An employer demanding an employee be examined because he cannot run one mile in under four minutes is not reasonable.  However, expecting a patrol officer to get in and out of the cruiser is arguably reasonable.    
The determination that an employee poses a direct threat does not necessarily mean you are about to go on a murderous rampage.  Most often fitness-for-duty examinations are ordered because the employer perceives your medical and/or psychological condition is affecting your ability to meet the essential job functions required and that your inability may result in death or injury to yourself, fellow employees and/or the general public.

The law provides that the medical/psychological examinations can only be focused on the employee’s ability to perform the job without being a threat to others, with or without reasonable accommodation.  Unfortunately, some employers would abuse their authority by sending an employee for both a medical and psychological examination, even though their stated “reasonable” concern was, for example, to verify the employee’s broken leg had properly healed.
Additionally, The United States Department of Labor provides:
“An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee. (see: The "Certification of HealthCare Provider.  http://www.dol.gov/whd/fmla/appendixf.pdf ).
When you present a “return to work” clearance from your own doctor, the Department of Labor provides that the employer may send you to their doctor for a second opinion, just as you could get your own second opinion “at your expense”. The rules mandate that if the employer requests a second opinion, the employer “must pay” the expenses. Additionally, if a third opinion is needed, the law requires that the third care provider must be approved jointly by the employer and the employee, at the employer’s expense.
We just witnessed our Governor, along with the MAJORITY of our State Representatives and State Senators, attempt to strip us of protections we had fought long and hard to earn.  The protections afforded to the American workers through the ADA, FMLA, Department of Labor, EEOC, (both State and Federal) can be changed as well.   Many of you know under President Bush our Congress revamped the FMLA, with most changes being injurious to the employee.

We all know the famous line from the movie Jerry Maguire: “Show Me the Money”. In negotiations, the OPBA utilizes public records requests to get the basic financial status of the opposition. A large amount of money comes from the State as “local Government Funds”. However, since Governor Kasich and his cronies have taken office, the reductions to Ohio’s Local Government Funds and, more importantly, the threats of further cuts in this program have created a nightmare.

The Governor’s budget, coupled with the initiation of the SB5 debacle, has resulted in the State bullying local governments with reductions to their share of the State’s sales tax receipts. The Local Government Funds, hereafter referred to as the LGF was established in 1934 (the height of the Great Depression) as a part of the State’s new sales tax law. Local Governments need money and they need it now. Of the monies collected the first year, 40% was returned to the Local Governments. The other 60% went to the local schools.

Needless to say, most local officials were not in favor of a new tax, but a new income stream was desperately needed. The new sales tax was the answer for providing that much needed income, so the tax became law. In a nut shell, the local government collects the sales tax from vendors. They send the money to the State, which in turn returns the monies to local governments based on population and need. There is, (or was), a formula in place for how the monies are to be distributed to the local Governments.

Subsequently, the Local Government Revenue Assistance Fund (“LGRAF”) and the Library and Local Government Support Fund (“LLGSF”) was created to distribute even more funds back to Local Governments. The LGF and the LGRAF are used by counties, townships, cities and villages for current operating expenses like police and fire. Additionally, the sources of these funds have expanded to include a specified amount of the personal income tax, use tax, corporation franchise tax and the public utility excise tax.

Every day, we hear comparisons of our current economy to the Great Depression. So, I ask the Governor why he would take legislation, which was created to help local governments in an economic downturn, flip it on its head, and take money away from local governments in what has been purported to be the worst economic climate since the Great Depression?

I further ask why local officials are just sitting on their rights to a portion of the sales tax, instead of attacking the current regime in Columbus. I’m not contending that there is a legal forum to settle this dilemma, but the General Assembly foolishly made changes to the allocation schedule of LGF’s. This legislation is temporary and is effective for 2011 through 2013. In July of 2013 the “percentage of revenue” goes back into effect. However, what do we do until the formula is put back into effect?

The answer is simple. There should be a public outcry, channeled towards the Governor, (not the Unions) by both the citizens and the local governments. As stated before, the local governments collect the sales tax money, send it to Columbus, and then Columbus sends a portion of those dollars back to the municipalities that collected the funds as well as other government jurisdictions. You can call the money a commission, collection fee, bonus, or whatever you wish, just be sure to call it ours and not the State’s.

Call your elected officials and demand the General Assembly amend the wrong they have committed. We live in our towns, our cities, and our counties by choice. Keep Columbus out of our pockets.

Facebook, Twitter, Bebo, MySpace, Flickr, and many other social websites are used by millions of Americans.  We meet people, discuss important issues, and interact with the world via this technology.  However, more and more employees, especially in safety forces, are jeopardizing their careers by posting questionable material and/or opinions on these public websites. A recent arbitration award upheld the termination of an employee.  The case revolved around something the employee posted on Facebook while off duty.

The facts are simple.  Employee “A” and Employee “B” worked together as police officers for the same Department. Employee “A” along with several other employees disliked employee “B”.  Employee “B” suddenly found a new job and resigned from the Department.

Several of the Department’s employees were elated that employee “B” no longer worked at the Department.  They decided to celebrate his departure by having a party at Employee “A’s” house.  One employee thought it would be fun to take employee “B’s” identification picture from the Department’s hard-drive.  They made several copies of the picture.  They cut the excess off the copies, leaving only the face, and attached them to popsicle sticks.   

At the party, the camera was running when employee “A” started to shout and belittle employee “B”.  The entire crowd lifted their popsicle stick picture to their face. Employee “A” continued to shout obscenities and denigrate employee “B”.

Sometime after the party, employee “A” posted the video on his Facebook page.  At some later date, a friend of employee “B’s” somehow saw the video.  He captured the video and gave it to the employer.

The video never mentioned the Department by name.  Nothing in the video would identify anyone at the party as working for the Department.  However, when you clicked employee “A’s” profile button, it listed that he is a police officer, and named the Department. Employee “A” was charged with unauthorized use of Departmental property (the pictures), use of vulgar and profane language, and that he exhibited grossly inappropriate behavior.  A disciplinary hearing was held and the employee was terminated.  He appealed the termination to arbitration.

The Arbitrator, explaining why the termination was upheld, reported :
“Although it is clear that the inappropriate behavior and the videotaping occurred off duty and off premises, per the established rules, such “conduct or acts” occurring off duty are subject to Managerial review if it may reasonably be concluded that said conduct or acts would “tend to diminish the esteem of the (Employer), its divisions or its personnel in the eyes of the public”.

The opinion continued:
“The Arbitrator recognizes that the grievant has the right to privacy in his own home; however, that is not the issue here.  The grievant crossed the line between the right to privacy and having his off duty conduct subject to his Employer’s review when he posted information on the Internet naming (Employer) as his Employer…”.

The Arbitrator concluded:

“As vulgar and inappropriate as the videos are, the Arbitrator would have considered the implementation of a reduced corrective measure had the connection to the Employer not been so clearly established.”

I remind you nothing in the video mentioned the employer in any way, shape or form.  However, any person with Facebook access, by simply clicking the profile of the employee, would know that both he, and employee “B” were police officers at the named  Employer.

As safety force members, we are held to a “higher standard”.  Society counts on us to exhibit professional conduct, on and off duty.  Although I have written on the subject of off duty conduct in previous articles, we now have a published Arbitrator’s decision in regards to off duty conduct and internet social websites.  Please use these websites in a fashion that will not bring any embarrassment to you, the profession, or, for the sake of your career, your Employer.

When I first started my career in law enforcement, an older officer asked me “how’s your future ex-wife”?  Unfortunately, he knew all too well the divorce rate in this profession.
During these times of economic uncertainty some members have faced the hardship of being laid-off from employment.  For those who are paying child support the following may be of importance.

In order to have a modification of terms in a child support order, there must be at least a 10% change in the amount of the existing order.  To effectuate a 10% or greater change, there generally must be a 30% change in an individual’s earnings. If an officer is laid off, they most likely are experiencing a 30% or greater loss in wages.
You can visit your County Jobs and Family Services Child Support Enforcement Agency (“CSEA”) after you have been unemployed for 30 consecutive days.  You must also be able to state that there are no immediate plans for a recall back to work.

The agency will provide the usual cornucopia of paper work to fill out.  A party requesting a modification review and the other party to a child support order are required to provide detailed financial information to the CSEA.  The CSEA will review the financial information and issue a recommendation no earlier than 45 days from the date of the request.  Depending on the size and workload of your County CSEA, the process may take several months. If the CSEA determines that a modification is warranted, the new amount will become effective on the first day of the month following the date certain of the review.

Another option is to retain a private counsel. Sure, you have to pay the attorney; however, the modification takes place more quickly.  In many cases, especially in the larger Counties, the savings simply become effective much quicker.
When your income drops, you need to think of ways to preserve your livelihood.  I fear if any of our members become delinquent in their child support obligations, this issue could haunt you in the future.

On another subject, for the last few months I have investigated, and experimented, with electronic cigarettes (e-cigs). I held off writing about this until the Federal Court of Appeals in Washington D.C. ruled against the FDA on regulating these products (1-14-2010).
As is the case with many of you, I really don’t want to smoke.  I’ve tried medication, nicotine gum and the patch, without success.  However, I found the electronic cigarette to be on target.  Of the brands I have tried, I found the Fuma brand (myfuma.com) to be the best by far.

The electronic cigarette looks like a regular cigarette.  It has a battery and a cartridge.  The cartridge has an atomizer that heats up the liquid nicotine producing a vapor that you inhale, just like smoking.  There is no doubt I don’t want to be hooked to nicotine, but this product does not produce the tar and other carcinogens found in regular tobacco.  Additionally, there is no smoke, just a vapor that evaporates so nothing left in your car or clothes. The main point is I no longer have a smokers cough and feel much better.