IN THE MATTER OF KAREN L. JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0834-07T10834-07T1

IN THE MATTER OF

KAREN L. JOHNSON

__________________

 

Submitted November 6, 2008 - Decided

Before Judges Payne and Newman.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-2380.

James F. Ferguson, Atlantic County Counsel, attorney for appellant (William P. Busch, Jr., Assistant County Counsel, of counsel and on the brief).

Anne Milgram, Attorney General of New Jersey, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrea R. Grundfest, Deputy Attorney General, on the brief).

Karen L. Johnson, respondent pro se.

PER CURIAM

Appellant, the Atlantic County Department of Family and Community Development, (the County) appeals from the final decision of the Merit System Board, (the Board) which adopted the recommendation of the Administrative Law Judge reversing the termination of Karen Johnson (Ms. Johnson) for being absent from work without proper authorization in violation of N.J.A.C. 4A:2-6.2(b). We affirm.

The relevant facts may be summarized as follows. Ms. Johnson was employed by the County as a child support worker beginning in 2001. On May 11, 2005, Ms. Johnson submitted the first of four notes from her physician to her supervisor, Katrina Wilson, indicating that she should be excused from work due to stress. The last of the notes indicated that Ms. Johnson would be able to return to work without restrictions on July 21, 2005. During the time period between May 11, 2005, and July 18, 2005, the County authorized Ms. Johnson to be on family medical leave. Ms. Johnson exhausted her paid sick time on July 18, 2005, and thereafter was placed on approved leave without pay.

On August 3, 2005, Ms. Johnson wrote to the County requesting family medical leave due to stress syndrome, indicating that the stress was work related. Ms. Johnson had also previously applied for state disability benefits. An administrative official of the County later advised her that she should instead have submitted a workers' compensation claim. Pursuant to those instructions, Ms. Johnson completed a workers' compensation claim on August 19, 2005. Ms. Johnson's supervisor, Ms. Wilson, informed Ms. Johnson that she no longer had to provide a doctor's note regarding her medical condition after she applied for disability. Ms. Wilson did not testify at the hearing before the Administrative Law Judge.

On September 16, 2005, Ms. Johnson's workers' compensation claim was denied. On September 27, 2005, the County wrote Ms. Johnson a letter directing her to report to work on October 3, 2005, to meet with her supervisor, or she would be recorded as resigned not in good standing. On September 28, 2005, Ms. Johnson was found eligible for disability benefits effective June 20, 2005.

On October 3, 2005, Ms. Johnson reported to the County's office in Pleasantville, where her supervisor was assigned. Co-workers informed Ms. Johnson that her supervisor was in the Hammonton office that day. Ms. Johnson attempted to telephone her supervisor at the Hammonton office without success. A co-worker in the office was able to reach the supervisor by phone, and told her that Ms. Johnson was waiting for her. The supervisor did not call back. Ms. Johnson then left the office for a previously scheduled doctor's appointment. Sometime thereafter, Ms. Johnson contacted her union representatives for assistance.

On appeal, the County raises the following arguments for our consideration:

POINT I: THE EMPLOYER/APPELLANT HAS A RIGHT TO EXPECT AN EMPLOYEE TO ABIDE THE REASONABLE RULES AND REGULATIONS OF THE WORKPLACE AND AN EMPLOYEE WHO FAILS TO FOLLOW THOSE RULES IS PROPERLY SUBJECT TO SANCTION.

POINT II: THE EMPLOYEE'S APPLICATION FOR STATE BENEFITS UNDER N.J.S.A. 43:21-25, ET SEQ. IS NOT CONTROLLING ON THE EMPLOYER.

POINT III: AN EXCHANGE OF MEDICAL INFORMATION BETWEEN DIFFERENT SEGMENTS OF COUNTY GOVERNMENT IS CONTRARY TO HEALTH INSURANCE PORTABILITY ACCOUNTABLITY ACT, 42 U.S.C.A. 3:1320d-2 AND THE EMPLOYER CANNOT BE SANCTIONED FOR ABIDING THIS FEDERAL LEGISLATION.

We address the issues in the order raised.

The County's procedure regarding medical leaves of absence without pay required "[a] doctor's certificate stating that you are or will be medically unable to perform the duties of your position, the nature of the disability and the estimated return to work date must be a part of the written notification." When Ms. Johnson failed to furnish a written doctor's certification for the time period after July 21, 2005, the County charged her with violating N.J.A.C. 4A:2-6.2(b), which provided that "[a]ny employee who is absent from duty for five or more consecutive business days without the approval of his or her superior shall be considered to have abandoned his or her position and shall be recorded as a resignation not in good standing." The regulation further provided that "[a]pproval of the absence shall not be unreasonably denied." Ibid.

Disciplinary actions, such as the removal of a permanent career service employee, are governed by N.J.A.C. 4A:2-2.1 et seq. Appeals of a Final Notice of Disciplinary Action issued by the appointing authority may be made by the employee to the Board. N.J.A.C. 4A:2-2.8.

The County argues in Point I that it had the right to expect its employees to abide by its rules and regulations, and to be able to sanction employees who failed to do so. The County's position, if followed, would leave disciplinary action against a public employee to the sole discretion of the appointing authority without review by the appropriate state agency. That is not what the law provides.

The uncontested testimony in the hearing record indicated that Ms. Johnson's supervisor told her that she no longer needed to provide doctor's notes for her absences after she applied for disability. In addition, the claim form for disability benefits was comprised of three parts. Part A was information to be completed by the claimant. Part B was information to be completed by the treating physician. Part C was information to be completed by the employer. Ms. Johnson's disability claim could not have been processed without the information provided by the County. The County's completion of that section would have put them on actual notice, if not constructive notice, that Ms. Johnson was filing a disability claim. The Board's decision, reversing the resignation not for good cause and granting back pay and other emoluments, was reasonable and not arbitrary and capricious. Campbell v. Department of Civil Service, 39 N.J. 556, 562 (1963).

The County contends in Point II that the determination of eligibility for disability benefits under N.J.S.A. 43:21-25 et seq., known as the Temporary Disability Benefits Law, was not controlling on the decision by the appointing authority to sanction an employee for non-compliance with its policies. Put another way, the County's position was that regardless of whether Ms. Johnson qualified for disability benefits, it should retain the right to sanction her for not complying with its medical leave policy. The County maintained that Ms. Johnson was absent without the proper authorization in violation of N.J.A.C. 4A:2-6.2(b) because she did not furnish a doctor's note pursuant to the County's medical leave policy.

The County was prohibited by N.J.A.C. 4A:2-6.2(b) from unreasonably withholding approval for Ms. Johnson's absences. The County had notice that Ms. Johnson applied for, and was granted, disability benefits. As observed in the Board's decision, under those circumstances, "it would be reasonable to grant her an extended leave of absence, and unreasonable to require her to return to work while collecting such benefits." In so ruling, the Board acted reasonably based upon sufficient credible evidence in the record, and did not violate any legislative policy. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

As pointed out, Ms. Johnson's uncontested testimony indicated that she was informed by Ms. Wilson, her supervisor, that further doctor's notes were not required after she filed her disability claim. Ms. Johnson acted in reasonable reliance upon her supervisor's instructions. It would be manifestly wrong and unjust for the County to sanction Ms. Johnson for complying with those instructions. Excusing Ms. Johnson's absences would not unduly prejudice or hinder the County from its governmental functions. While the application of the estoppel doctrine is not freely invoked against a governmental entity, it could properly be applied here. Vogt v. Belmar, 14 N.J. 195, 205 (1954).

The County argues in Point III that neither Ms. Johnson's supervisor nor Birdie Cody, the chief of administrative services for the County, were informed of Ms. Johnson's disability application because they were prohibited by the privacy regulations of the Health Insurance Portability Accountability Act (HIPAA), 42 U.S.C.A. 1320(a) et seq., from receiving such information from the payroll department. We disagree.

The general administrative requirements of the United States Department of Health and Human Services provide that HIPAA privacy regulations apply to the following entities: a health plan; a health care clearinghouse; a health care provider. 45 C.F.R. 160.102(a). The County has failed to show that it is a health care plan, health care clearing house or a health care provider constituting a "covered entity" subject to HIPAA privacy regulations. Ibid.

Furthermore, "[p]rotected health information excludes individually identifiable health information in . . . (iii) Employment records held by a covered entity in its role as employer." 45 C.F.R. 160.103 (2008).

Thus, even if the County were considered a covered entity by HIPAA's privacy regulations, employment records containing such information as disability insurance eligibility would be excluded, and would not preclude the unit of the appointing authority which assisted in presenting Ms. Johnson's temporary disability claim from informing Cody that the claim had been granted and Ms. Johnson was on disability.

Lastly, as the Board's decision noted, the County's payroll department was responsible for processing Ms. Johnson's application for disability benefits and received a charge notice each time a benefit check was issued from the Division of Temporary Disability Insurance. The Board commented in its opinion that it was "astounded by the lack of communication within the appointing authority regarding employee benefits." Indeed, the intra-agency failure can not provide the basis for a job abandonment charge. This is especially so when Ms. Johnson's qualification for disability was known to the officials responsible for overseeing her employment.

Affirmed.

 

(continued)

(continued)

9

A-0834-07T1

November 28, 2008