ARTICLE- Religious Exemptions And Flu Vaccinations

Steven J. Scott | Hodges & Davis Law Firm Northwest Indiana

The issue of mandatory flu vaccinations and requests for exemption from flu vaccinations based on religious grounds has recently found itself before the EEOC. The EEOC has not taken such religious discrimination claims lightly. In fact, on June 25, 2019, the EEOC released a statement that Memorial Healthcare in Owosso, Michigan would pay damages, along with other relief, to settle a religious discrimination lawsuit filed by the EEOC.

The EEOC alleged that Memorial violated federal law in refusing to hire a medical transcriptionist because of her religious beliefs against flu shots. According to the EEOC, Memorial refused to accommodate the beliefs of the transcriptionist, and further declined to accept her offer to wear a mask during flu season. Under hospital policy, wearing a mask was a viable alternative to inoculation; however, Memorial refused to extend this accommodation to the transcriptionist, and thereafter rescinded its offer of employment. Therefore, the EEOC alleged that Memorial’s actions violated Title VII of the Civil Rights Act of 1964, which mandates that employers provide reasonable accommodations for religious beliefs, absent undue hardship.

To settle the lawsuit, Memorial will pay damages totaling $74,418. Memorial will also permit employees with religious objections to wear a mask, rather than receive a flu shot. Finally, Memorial will train its staff in the accommodation policy.

This lawsuit and settlement are potentially significant for employers. As they balance the need for employees to receive a flu vaccine for the safety and well-being of employees, co-workers and customers/patients with accommodation of religious beliefs.

Please note that this Article does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. — November 2019

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ARTICLE- Indiana’s New Supported Decision Making Rule using Less Restrictive Alternatives

On April 24, 2019, Senate Enrolled Act 380 was signed into law, amending the Indiana guardianship code to add new sections addressing Supported Decision Making (IC § 29-3-14) and Less Restrictive Alternatives (IC § 29-3-1-7.8). The amendments send at least one clear message: a full-blown Guardianship is not the only option.

Traditionally, when an incapacitated person needs assistance in making significant life decisions, a guardian or other agent, such as a power of attorney or healthcare representative, can be appointed to assist and ultimately make these decisions on behalf of the incapacitated individual. This approach and these options do not always account for the level of assistance needed by the individual and can overreach to the extent that the individual is not permitted to make decisions without approval of their agent (such as with a guardianship). The new law not only supports an individual’s decision making process, but honors and acknowledges a broad spectrum of assistance by requiring less restrictive alternatives in guardianship petitions.

New I.C. § 29-3-1-7.8(a) of the Guardianship Code defines “Less restrictive alternatives” as “an approach to meeting a person’s needs that restricts fewer rights of the person than would the appointment of the guardian” and includes a supported decision making agreement (as defined in I.C. § 29-3-14-2).

Supported Decision-Making (“SDM”) agreements can be used throughout any arrangement, whether in or out of a guardianship allowing an incapacitated individual to make some decisions without the guardian. These agreements are a means of promoting an individual’s decision-making skills, which in turn could lead to greater self-determination.

Supported decision making allows individuals to use their own support systems to make decisions rather than having a guardian make the decision for them. A Supported Decision-Making agreement between an individual and a supporter allows the supporter to: (1) obtain and understand information relevant to an individual’s decisions, (2) be provided an explanation of the options, responsibilities, and consequences of an individual’s decisions, (3) communicate decisions to the appropriate people, (4) assist in, but not make, decisions for the individual that has chosen them for guidance.

There are many benefits to SDM agreements, most notably, allowing the individual to retain decision-making authority. However, as with any agency agreement, there are risks as well. Inclusion of less restrictive means and supported decision making in the Guardianship Code, as adopted, may provide more opportunity for fiduciary abuse than intended. For example, the legislature failed to include basic fiduciary duties into the definition of “supporter” making it difficult if not impossible to provide a breach of fiduciary duty claim. Without basic duties defined, the statute provides supporters an opportunity to exploit vague language to take advantage of the individual who the supporter is assisting. The statute, as currently written, also fails to articulate any liability for breach of duty on behalf of the supporter.

CONCLUSION
While Indiana’s new Supported Decision Making and Less Restrictive Means statutes may be lacking in specific language necessary to hold “supporters” to the fiduciary standard required to protect the individuals they are supporting, the laws clearly place Indiana as a state acknowledging the incapacity spectrum and the level of assistance needed. The new laws provide an alternative to all-encompassing guardianships by promoting less restrictive means, thereby retaining a level of an individual’s independence.

The information provided in this article does not, and is not intended to, constitute legal advice nor does it establish an attorney/client relationship. To discuss how supported decision making agreements and less restrictive alternatives may apply to your case, please contact Hodges and Davis attorneys, Benjamin T. Ballou or Emilie E.D. Hunt.

 

Hodges and Davis, P.C. – November 2019

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ARTICLE- How To Choose a Lawyer

Bonnie C. Coleman | Hodges & Davis Law Firm Northwest Indiana

You have recently decided to start a new business, plan to buy or sell real estate, finally decided that you have put off  having a Will for entirely too long or encountered a legal problem. You need a lawyer. But the process of selecting a lawyer who meets your needs may seem daunting. How do you find a lawyer?

As lawyers, we often hear our clients tell us later that they put off getting help because finding a lawyer and making the first appointment seemed overwhelming. Hopefully, these tips will help you make the process of choosing a lawyer less difficult.

1. Identify your need. Do you need a will or a trust (estate planning services), are you looking to sell real estate, do you have a small business that needs attention, did you receive a speeding ticket, do you have an issue relating to landlord/tenant, divorce or paternity? Lawyers often only provide certain types of legal services, not everything.

2. Recommendations. There is nothing wrong with asking around when you need a lawyer. If a lawyer is recommended by someone you trust, that can make things easier.

3. Searching online. Looking on the internet is another good place to start. You can check lawyer review sites and the attorney’s website.

• Before beginning your internet research, you should consider a few basic questions. Should the law office be located an acceptable distance from your home or work? Do you want a lawyer who works with a firm or works alone? Do you want someone who is an eager new lawyer or someone more experienced?

• Can I trust reviews? The answer is yes and no. Sometimes reviews and rankings will be honest and reliable. Other times, especially in situations where a person gives a bad review of a lawyer who represents the “other” person in a dispute, the reviewer may have unreliable motivation. Also, often lawyers have limited reviews, and good lawyers may have no reviews.

• What should I look for on a lawyer’s website? First and foremost, look to see if the attorney indicates that they provide the type of legal service you need. If a lawyer says that they primarily provide criminal defense services, and you need a will, chances are that you want to keep looking. Also, make sure that the items you initially identified as important like location, etc. are met.

4. Call and make an appointment. Can you email the lawyer to set up an initial appointment? You can, but lawyers receive hundreds of emails in a week, many of which are not legitimate. Generally, calling to make a first appointment is more effective. It’s also the first chance you have to glimpse how you might be treated. Is your call taken right away and an appointment made, or if a message is left, do you receive a return call promptly? If the attorney is not available to help you or does not handle the type of legal services you need, ask for a referral to another lawyer who does provide that type of work, or ask if your town has a lawyer referral service.

5. Initial Fee. Most lawyers will not require that you hire them before a first appointment. Some may offer a free initial consultation and some may charge you for the initial appointment. When you call to make the appointment, ask what the charge will be for the initial meeting. The key here is to avoid surprises. Also, ask what documentation, or any other information, you should provide. You may be asked to send documents electronically to the attorney prior to your meeting. If you are not comfortable emailing documents, let the office know you will bring them or drop them off before the appointment.

6. Preparation for the Initial Appointment. Gather the documents and information that the attorney’s office requested and provide those as directed. Most attorneys will copy original documents that you bring. However, if you are concerned, copy your documents before the meeting. Also, make a list of questions that you want to ask during the first meeting. Having the questions written in advance will help you from forgetting or getting nervous. Importantly, include a question about fees and costs. Again, to avoid surprises, you should know how you will be charged if you decide to hire the lawyer to help you.

7. Initial Appointment. Generally, the purpose of an initial appointment is to explain what legal services you are seeking. Be prepared to explain your situation, bring documents and information requested, listen to what the attorney says to you, ask your questions and make sure you understand what is being explained. If you don’t understand, don’t be shy. Ask the lawyer to explain again.

8. Remember. “Trust your gut”. Are you feeling at ease about how you are being treated or are your questions avoided and not being answered? Most lawyers treat their clients politely and with respect, and you should expect that to happen. If it doesn’t, then maybe this isn’t a good fit. Too often people say “I never really felt comfortable.” That should be a message. Having a feeling that the lawyer is confident and will be able to help you is important.

Often people tell us that they were very nervous about seeing a lawyer for the first time. Afterward, however, they felt at ease and realized that meeting with a lawyer was easier than expected.

Please note that this Article does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. — November 2019

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