Thursday, March 19, 2015
The National Association of Distinguished Counsel selected Mr. Winer as “Nation's Top One Percent.”
In march of 2015, the National Association of Distinguished Counsel selected Mr. Winer as Member of the "Nation's Top One Percent." NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate. Members are vetted by a research team, a blue ribbon panel of attorneys, and a judicial review board. By virtue of the incredible selectivity of their appointment process, only the top one percent of attorneys in the United States are awarded membership in the NADC. see http://www.distinguishedcounsel.org/
Friday, March 6, 2015
An Introduction to the Family and Medical Leave Act (FMLA)
When injured, often times your ability to do your job is greatly effected. Our clients often wonder what rights they have with their employer to take leave from work. When you or a loved one experiences a serious health condition that requires you to take time off from work, the stress from
worrying about keeping your job may add to an already difficult situation.
The Family and Medical Leave Act (FMLA) may be able to help. Whether you are unable to work because of your own serious health condition, or because you need to care for your parent, spouse, or child with a serious health condition, the FMLA provides unpaid, job-protected leave. Leave may be taken all at once, or may be taken intermittently as the medical condition requires.
This guide provides a simple overview of how the FMLA may benefit you. In your time of need, sometimes you just need time.
Who Can Use FMLA Leave?
In order to take FMLA leave, you must first work for a covered employer. Generally, private employers with at least 50 employees are covered by the law. Private employers with fewer than 50
employees are not covered by the FMLA, but may be covered by state family and medical leave laws. Government agencies (including local, state and federal employers) and elementary and
secondary schools are covered by the FMLA, regardless of the number of employees.
If you work for a covered employer, you need to meet additional criteria to be eligible to take FMLA leave. Not everyone who works for a covered employer is eligible. First, you must have worked for your employer for at least 12 months. You do not have to have worked for 12 months in a row (so
seasonal work counts), but generally if you have a break in service that lasted more than seven years, you cannot count the period of employment prior to the seven-year break.
Second, you must have worked for the employer for at least 1250 hours in the 12 months before you take leave. That works out to an average of about 24 hours per week over the course of a year.
Lastly, you must work at a location where the employer has at least 50 employees within 75 miles of your worksite. So even if your employer has more than 50 employees, if they are spread out and
there are not 50 employees within 75 miles of where you work, you will not be eligible to take FMLA leave.
When Can I Use FMLA Leave?
If you work for an employer that is covered by the FMLA, and you are an eligible employee, you can take up to 12 weeks of FMLA leave in any 12-month period for a variety of reasons, including:
Serious Health Condition
You may take FMLA leave to care for your spouse, child or parent who has a serious health condition, or when you are unable to work because of your own serious health condition.
The most common serious health conditions that qualify for FMLA leave are:
1) conditions requiring an overnight stay in a hospital or other medical care facility;
2) conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and require ongoing medical treatment
(either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
3) chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
4) pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).
Military Family Leave
The FMLA also provides certain military family leave entitlements. You may take FMLA leave for specified reasons related to certain military deployments. Additionally, you may take up to 26 weeks
of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.
What Can the FMLA Do for Me?
If you are faced with a health condition that causes you to miss work, whether it is because of your own serious health condition or to care for a family member with a serious health condition, you
may be able to take up to 12 weeks of job-protected time off under the FMLA.
If you take FMLA leave, your employer must continue your health insurance as if you were not on leave (you may be required to continue to make any normal employee contributions). As long as you are able to return to work before you exhaust your FMLA leave, you must be returned to the same job (or one nearly identical to it). This job protection is intended to reduce the stress that you may otherwise feel if forced to choose between work and family during a serious medical situation.
Time off under the FMLA may not be held against you in employment actions such as hiring, promotions or discipline. You can take FMLA leave as either a single block of time (for
example, three weeks of leave for surgery and recovery) or in multiple, smaller blocks of time if medically necessary (for example, occasional absences due to diabetes). You can also take leave on a
part-time basis if medically necessary (for example, if after surgery you are able to return to work only four hours a day or three days a week for a period of time). If you need multiple periods of leave for planned medical treatment such as physical therapy appointments, you must try to schedule the treatment at a time that minimizes the disruption to your employer.
FMLA leave is unpaid leave. However, if you have sick time, vacation time, personal time, etc., saved up with your employer, you may use that leave time, along with your FMLA leave so that you continue to get paid. In order to use such leave, you must follow your employer’s normal leave rules such as submitting a leave form or providing advance notice. Even if you don’t want to use your paid
leave, your employer can require you to use it during your FMLA leave. For example, if you are out for one week recovering from surgery, and you have two weeks of paid vacation saved up, your
employer can require you to use one week of your vacation time for your FMLA leave. When you use paid leave for an FMLA-covered reason (whether at your request or your employer’s), your leave
time is still protected by the FMLA.
How Do I Request FMLA Leave?
To take FMLA leave, you must provide your employer with appropriate notice. If you know in advance that you will need FMLA leave (for example, if you are planning to have surgery or you are
pregnant), you must give your employer at least 30 days advance notice. If you learn of your need for leave less than 30 days in advance, you must give your employer notice as soon as you can (generally either the day you learn of the need or the next work day). When you need FMLA leave unexpectedly (for example, if a family member is injured in an accident), you MUST inform your employer as soon as you can. You must follow your employer’s usual notice or call-in procedures unless you are unable to do so (for example, if you are receiving emergency medical care).
While you do not have to specifically ask for FMLA leave for your first leave request, you do need to provide enough information so your employer is aware it may be covered by the FMLA. Once a condition has been approved for FMLA leave and you need additional leave for that condition (for example recurring migraines or physical therapy appointments), your request must mention that condition or your need for FMLA leave. If you don’t give your employer enough information to know that your leave may be covered by the FMLA, your leave may not be protected.
You do not have to tell your employer your diagnosis, but you do need to provide information indicating that your leave is due to an FMLA-protected condition (for example, stating that you have been to the doctor and have been given antibiotics and told to stay home for four days).
For more information, please visit (source) http://www.dol.gov/whd/fmla/employeeguide.pdf
110 North 11th Street Tampa Florida 33602-4202
worrying about keeping your job may add to an already difficult situation.
The Family and Medical Leave Act (FMLA) may be able to help. Whether you are unable to work because of your own serious health condition, or because you need to care for your parent, spouse, or child with a serious health condition, the FMLA provides unpaid, job-protected leave. Leave may be taken all at once, or may be taken intermittently as the medical condition requires.
This guide provides a simple overview of how the FMLA may benefit you. In your time of need, sometimes you just need time.
Who Can Use FMLA Leave?
In order to take FMLA leave, you must first work for a covered employer. Generally, private employers with at least 50 employees are covered by the law. Private employers with fewer than 50
employees are not covered by the FMLA, but may be covered by state family and medical leave laws. Government agencies (including local, state and federal employers) and elementary and
secondary schools are covered by the FMLA, regardless of the number of employees.
If you work for a covered employer, you need to meet additional criteria to be eligible to take FMLA leave. Not everyone who works for a covered employer is eligible. First, you must have worked for your employer for at least 12 months. You do not have to have worked for 12 months in a row (so
seasonal work counts), but generally if you have a break in service that lasted more than seven years, you cannot count the period of employment prior to the seven-year break.
Second, you must have worked for the employer for at least 1250 hours in the 12 months before you take leave. That works out to an average of about 24 hours per week over the course of a year.
Lastly, you must work at a location where the employer has at least 50 employees within 75 miles of your worksite. So even if your employer has more than 50 employees, if they are spread out and
there are not 50 employees within 75 miles of where you work, you will not be eligible to take FMLA leave.
When Can I Use FMLA Leave?
If you work for an employer that is covered by the FMLA, and you are an eligible employee, you can take up to 12 weeks of FMLA leave in any 12-month period for a variety of reasons, including:
Serious Health Condition
You may take FMLA leave to care for your spouse, child or parent who has a serious health condition, or when you are unable to work because of your own serious health condition.
The most common serious health conditions that qualify for FMLA leave are:
1) conditions requiring an overnight stay in a hospital or other medical care facility;
2) conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and require ongoing medical treatment
(either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
3) chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
4) pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).
Military Family Leave
The FMLA also provides certain military family leave entitlements. You may take FMLA leave for specified reasons related to certain military deployments. Additionally, you may take up to 26 weeks
of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.
What Can the FMLA Do for Me?
If you are faced with a health condition that causes you to miss work, whether it is because of your own serious health condition or to care for a family member with a serious health condition, you
may be able to take up to 12 weeks of job-protected time off under the FMLA.
If you take FMLA leave, your employer must continue your health insurance as if you were not on leave (you may be required to continue to make any normal employee contributions). As long as you are able to return to work before you exhaust your FMLA leave, you must be returned to the same job (or one nearly identical to it). This job protection is intended to reduce the stress that you may otherwise feel if forced to choose between work and family during a serious medical situation.
Time off under the FMLA may not be held against you in employment actions such as hiring, promotions or discipline. You can take FMLA leave as either a single block of time (for
example, three weeks of leave for surgery and recovery) or in multiple, smaller blocks of time if medically necessary (for example, occasional absences due to diabetes). You can also take leave on a
part-time basis if medically necessary (for example, if after surgery you are able to return to work only four hours a day or three days a week for a period of time). If you need multiple periods of leave for planned medical treatment such as physical therapy appointments, you must try to schedule the treatment at a time that minimizes the disruption to your employer.
FMLA leave is unpaid leave. However, if you have sick time, vacation time, personal time, etc., saved up with your employer, you may use that leave time, along with your FMLA leave so that you continue to get paid. In order to use such leave, you must follow your employer’s normal leave rules such as submitting a leave form or providing advance notice. Even if you don’t want to use your paid
leave, your employer can require you to use it during your FMLA leave. For example, if you are out for one week recovering from surgery, and you have two weeks of paid vacation saved up, your
employer can require you to use one week of your vacation time for your FMLA leave. When you use paid leave for an FMLA-covered reason (whether at your request or your employer’s), your leave
time is still protected by the FMLA.
How Do I Request FMLA Leave?
To take FMLA leave, you must provide your employer with appropriate notice. If you know in advance that you will need FMLA leave (for example, if you are planning to have surgery or you are
pregnant), you must give your employer at least 30 days advance notice. If you learn of your need for leave less than 30 days in advance, you must give your employer notice as soon as you can (generally either the day you learn of the need or the next work day). When you need FMLA leave unexpectedly (for example, if a family member is injured in an accident), you MUST inform your employer as soon as you can. You must follow your employer’s usual notice or call-in procedures unless you are unable to do so (for example, if you are receiving emergency medical care).
While you do not have to specifically ask for FMLA leave for your first leave request, you do need to provide enough information so your employer is aware it may be covered by the FMLA. Once a condition has been approved for FMLA leave and you need additional leave for that condition (for example recurring migraines or physical therapy appointments), your request must mention that condition or your need for FMLA leave. If you don’t give your employer enough information to know that your leave may be covered by the FMLA, your leave may not be protected.
You do not have to tell your employer your diagnosis, but you do need to provide information indicating that your leave is due to an FMLA-protected condition (for example, stating that you have been to the doctor and have been given antibiotics and told to stay home for four days).
For more information, please visit (source) http://www.dol.gov/whd/fmla/employeeguide.pdf
Best Regards,
Mike
Law Office of Michael J. Winer, P.A.
phone: (813) 224-0000
telefax: (813) 224-0088
email: mike@mikewinerlaw.com
web site:
http://www.mikewinerlaw.com/
Board Certified in Workers' Compensation
AV Rated by Martindale-Hubbell
Wednesday, March 4, 2015
The Demolition of Workers’ Comp
Over the past decade, states have slashed workers’ compensation benefits, denying injured workers help when they need it most and shifting the costs of workplace accidents to taxpayers.
examine the systematic ills that are plaguing workers' compensation systems nation wide and the horror stories of some injured workers who have been affected by it.
The story begins with Dennis Whedbee. His crew was rushing to prepare an oil well for pumping on the Sweet Grass Woman lease site, a speck of dusty plains rich with crude in Mandaree, North Dakota. It was getting late that September afternoon in 2012. Whedbee, a 50-year-old derrickhand, was helping another worker remove a pipe fitting on top of the well when it suddenly blew.
Oil and sludge pressurized at more than 700 pounds per square inch tore into Whedbee’s body, ripping his left arm off just below the elbow. Coworkers jerry-rigged a tourniquet from a sweatshirt and a ratchet strap to stanch his bleeding and got his wife on the phone.
“Babe,’’ he said, “tell everyone I love them.”
It was exactly the sort of accident that workers’ compensation was designed for. Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age: They would give up their right to sue. In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.
No longer.
Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found. The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.
Two-and-a-half years after he lost his arm, Whedbee is still fighting with North Dakota’s insurance agency for the prosthesis that his doctor says would give him a semblance of his former life.
The changes, often passed under the banner of “reform,” have been pushed by big businesses and insurance companies on the false premise that costs are out of control.
In fact, employers are paying the lowest rates for workers’ comp insurance since the 1970s. And in 2013, insurers had their most profitable year in over a decade, bringing in a hefty 18 percent return.
All the while, employers have found someone else to foot the bill for workplace accidents: American taxpayers, who shell out tens of billions of dollars a year through Social Security Disability Insurance, Medicare and Medicaid for lost wages and medical costs not covered by workers’ comp.
ProPublica analyzed reams of insurance industry data, studied arcane state laws and obtained often confidential medical and court records to provide an unprecedented look at the unwinding of workers’ comp laws across the country.
Among the findings:
The cuts have gone so deep in some states that judges who hear workers’ comp cases, top defense attorneys for companies and even the father of the modern workers’ comp system say they are inhumane.
Presented with ProPublica and NPR’s findings, Sen. Bob Casey, D-Pa., one of the leading worker advocates in Congress, said the changes undermine the basic protections for injured workers.
The rollback “would be bad if it were happening in one state,” he said. “But the fact that a number of states have moved in this direction is disturbing and it should be unacceptable to people in both political parties.”
“They call them reforms,” Casey added. “That’s a real insult to workers."
Click here to view the entire story:
http://www.propublica.org/article/the-demolition-of-workers-compensation
Click here to:
Share Your Story
examine the systematic ills that are plaguing workers' compensation systems nation wide and the horror stories of some injured workers who have been affected by it.
The story begins with Dennis Whedbee. His crew was rushing to prepare an oil well for pumping on the Sweet Grass Woman lease site, a speck of dusty plains rich with crude in Mandaree, North Dakota. It was getting late that September afternoon in 2012. Whedbee, a 50-year-old derrickhand, was helping another worker remove a pipe fitting on top of the well when it suddenly blew.
Oil and sludge pressurized at more than 700 pounds per square inch tore into Whedbee’s body, ripping his left arm off just below the elbow. Coworkers jerry-rigged a tourniquet from a sweatshirt and a ratchet strap to stanch his bleeding and got his wife on the phone.
“Babe,’’ he said, “tell everyone I love them.”
It was exactly the sort of accident that workers’ compensation was designed for. Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age: They would give up their right to sue. In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.
No longer.
Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found. The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.
Two-and-a-half years after he lost his arm, Whedbee is still fighting with North Dakota’s insurance agency for the prosthesis that his doctor says would give him a semblance of his former life.
The changes, often passed under the banner of “reform,” have been pushed by big businesses and insurance companies on the false premise that costs are out of control.
In fact, employers are paying the lowest rates for workers’ comp insurance since the 1970s. And in 2013, insurers had their most profitable year in over a decade, bringing in a hefty 18 percent return.
All the while, employers have found someone else to foot the bill for workplace accidents: American taxpayers, who shell out tens of billions of dollars a year through Social Security Disability Insurance, Medicare and Medicaid for lost wages and medical costs not covered by workers’ comp.
ProPublica analyzed reams of insurance industry data, studied arcane state laws and obtained often confidential medical and court records to provide an unprecedented look at the unwinding of workers’ comp laws across the country.
Among the findings:
- Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65 percent since 1994.
- Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other. The maximum compensation for the loss of an eye is $27,280 in Alabama, but $261,525 in Pennsylvania.
- Many states have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered. After John Coffell hurt his back at an Oklahoma tire plant last year, his wages dropped so dramatically that he and his family were evicted from their home.
- Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery. In 37 states, workers can’t pick their own doctor or are restricted to a list provided by their employers.
- In California, insurers can now reopen old cases and deny medical care based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state. Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.
The cuts have gone so deep in some states that judges who hear workers’ comp cases, top defense attorneys for companies and even the father of the modern workers’ comp system say they are inhumane.
Presented with ProPublica and NPR’s findings, Sen. Bob Casey, D-Pa., one of the leading worker advocates in Congress, said the changes undermine the basic protections for injured workers.
The rollback “would be bad if it were happening in one state,” he said. “But the fact that a number of states have moved in this direction is disturbing and it should be unacceptable to people in both political parties.”
“They call them reforms,” Casey added. “That’s a real insult to workers."
Click here to view the entire story:
http://www.propublica.org/article/the-demolition-of-workers-compensation
Click here to:
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