What Ohio Business Owners Need to Know About Anti-Harassment & Anti-Retaliation Laws

It's crucial for business owners to fully understand the laws governing aspects of workplace interactions. Read on to learn what your responsibilities are to a worker who has experienced sexual harassment on the job.

 

As a business owner, you want to provide your employees with a safe working environment. Federal laws like the Age Discrimination in Employment Act (ADEA) and the Equal Employment Opportunity Act of 1972 work together to ensure that workers' rights are upheld and provide guidance to employers regarding hiring practices, discrimination, harassment in the workplace, and other employee-relations issues. 

Ohio has also passed state laws governing the various aspects of the employer-employee relationship. Knowing details of anti-harassment and anti-retaliation statutes is critical for your business operations. What are your responsibilities to a worker who has experienced harassment on the job? What are your potential liabilities? Do you have policies in place that comply with federal and state laws regarding retaliation in the workplace? These are questions you should consider if you run a business in the State of Ohio.

Handling Claims of Harassment in the Workplace

Workplace harassment not only hurts employees, productivity, and overall business, but it is also illegal in Ohio. There are two primary types of this unwanted behavior: favors or job benefits for sex, and harassment that creates a hostile work environment.

Here is an example of each:

Quid Pro Quo 
This type of harassment occurs when a supervisor or person in a position of authority requests sex in exchange for benefits such as a promotion or raise, or for not firing or punishing the employee. For example, an employee receives a bonus simply because they are dating a supervisor or other person of authority. 

Hostile Work Environment 
This harassment occurs when a member of your business commits unwelcomed behavior toward another coworker based on their protected class (race, sex, religion, disability, etc.) and does so in a way that interferes with their ability to work. 

Hostile work environment situations often depend on the severity and pervasiveness of the harassing behavior. Teasing could easily create a negative work situation because it can interfere with another employee's work performance to the point that it is unlawful. For this reason, any complaints about a worker being offensive toward another should be dealt with right away. 

RELATED: Understanding digital harassment

Employer Liability for Workplace Harassment Claims
Suppose you are an employer that has both an adequate anti-harassment policy and complaint procedures in place and both are well-written and promptly followed. In that case, you may have improved our chances of having a successful defense against lawsuits against your organization should an employee sue for harassment. 

What constitutes an adequate anti-harassment policy? In your policy you should be sure to do the following:

Use clear and unambiguous language
Have your policy in writing and shared broadly throughout your company
Conduct annual review and in-person training of these policies
Be clear on which roles and responsibilities belong to employers and which belong to employees in instances of reported harassment 
Use crystal clear explanations of what conduct is prohibited and constitutes harassment
Implement a complaint process that is easily understood, followed, and provides several paths to report incidents through impartial channels
Explain the complaint process that must be followed at the moment a complaint is reported
Highlight your commitment to perform a prompt and thorough investigation
Include non-employees, like vendors or temp employees, in the scope of the policy
Ensure as much confidentiality as legally possible
Outline what corrective actions management takes if a harassment report is validated
Emphasize that workplace retaliation toward the reporting employee is prohibited and has consequences

Whether a coworker was making offensive jokes at the water cooler or someone sent a text message to a teammate making unwanted advances, take all reports seriously.

Workplace Retaliation Can Spell Big Problems

Employers should also be familiar with retaliation in the workplace. Under both Ohio and federal law, it is illegal for employers to punish employees for reporting discrimination they witness at work. State statutes, for example, protect employees with good-faith beliefs that they saw or experienced discriminatory behavior, or who act against such instances. 

RELATED: Read more by Alex Gertsburg

There are several types of such protected activities. Here are some examples: 

A company owner tells a hiring manager not to hire women for a vacant job role because they believe women are incapable of performing the required tasks. Instead of following this discriminatory policy, the manager hires a female candidate anyway, going against their employer's demand.

An employee takes direct action to combat discrimination in their workplace. This often involves the worker filing a complaint against the business and assisting the investigation. Coworkers who witnessed discriminatory behavior can also take part as a protected activity. 

Courts will take a hard look at what circumstances caused employees to take these actions against their employer. Those who punish their workers for complaining or reporting discriminatory conduct are violating state and federal anti-retaliation laws. 

If you receive a complaint that discrimination is occurring in your business, avoid reacting out of anger, even if you are the subject of the report. Be professional, objective, and don't try to make their life more difficult on the job out of spite.

One of the best ways to prevent retaliation allegations is to have a comprehensive anti-retaliation policy in place. Make sure any guidelines you create take the following suggestions into consideration:

Any anti-retaliation policy you have should be in written format
If you receive complaints of retaliation in the workplace, pursue independent investigations to avoid accusations of bias
Investigate complaints of this behavior promptly
Make it clear that any retaliation against protected activities is prohibited

These steps, taken in conjunction with good written policies supporting workplace fairness, equality, and respect, can help prevent allegations of discrimination from turning into accusations of retaliatory behavior.

Workplace Harassment and Retaliation Claims are Preventable

As a business owner, you have a significant amount of influence and control over the behavior your employees, vendors, and customers engage in at your workplace. Prioritizing these issues and creating policies that confront these situations head-on can save you costly lawsuits and reputational damage to your company name. 

Whenever an employee complains about a customer making inappropriate sexual jokes, you are responsible for making it stop. Always take complaints involving harassment or retaliation seriously to minimize your liability and show you mean business regarding workplace protections for your team.

Alex Gertsburg is a managing partner at Gertsburg Licata and is a board member of COSE and Greater Cleveland Partnership. He can be reached at agertsburg@gertsburglicata.com or by phone at (216) 573-6000.

At Gertsburg Licata, home of CoverMySix®, our innovative anti-litigation audit service, we help business owners take inventory of their hiring and employment policies, procedures and documents to ensure they are on firm ground in instances of harassment and retaliation claims. We invite you to call 216-573-6000 or fill out our contact form for a complimentary* consultation call with one of our attorneys.

*Complimentary CoverMySix® consultation calls are exclusive to COSE members. 

 
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  • Next up: What You Need to Know about New Overtime Rules
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  • What You Need to Know about New Overtime Rules

    There are new rules on Overtime pay that will be going into effect December 1 that will impact anyone who has salaried employees making less than $47,476 per year. So, what does this mean for your business?

    There are new rules on Overtime pay that will be going into effect December 1 that will impact anyone who has salaried employees making less than $47,476 per year. So, what does this mean for your business?

    Learn more about the reasons for this change, the implications for small employers and the potential impact on your HR Policies in a webinar featuring expert analysis from Keith Ashmus of Frantz Ward LLP and Mireille Wozniak-Michalak of Petiole HR, LLC.

     

     

    Download the presentation as a PDF here.

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  • Next up: What's an LLC?
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  • What's an LLC?

    Curious about LLCs? Here’s a guide that explains what this structure is, how you can form one and what the benefits and disadvantages are.

    A limited liability company (LLC) is a hybrid legal structure that provides the limited liability features of a corporation and the tax efficiencies and operational flexibility of a partnership. The owners of an LLC are referred to as members. Depending on the state, the members can consist of a single individual (one owner), or two or more individuals, corporations or other LLCs.

    Unlike shareholders in a corporation, LLCs are not taxed as a separate business entity. Instead, all profits and losses are “passed through” the business to each member of the LLC. LLC members report profits and losses on their personal federal tax returns, just like the owners of a partnership.

    Forming an LLC

    While each state has slight variations in its requirements for forming an LLC, they all adhere to the same general principles:

    Choose a Business Name. There are three general rules for your LLC’s name: 1. It must be different from an existing LLC in your state, 2. It must indicate that it is an LLC (such as LLC or Limited Liability Company), and 3. It must not include words restricted by your state (such as bank or insurance).

    File Articles of Organization. This is a simple document that includes information such as your business name, address, registered agent and sometimes the names of the members. In Ohio you file with the Secretary of State, though in other states it may be the State Corporation Commission, Department of Commerce and Consumer Affairs, Department of Consumer and Regulatory Affairs, or the Division of Corporations & Commercial Code. There is typically a filing fee that must accompany the articles of organization.

    Create an Operating Agreement. Most states do not require operating agreements. However, an operating agreement is highly recommended for multi-member LLCs because it structures your LLC’s finances and organization, and provides rules and regulations for smooth operation. The operating agreement usually includes percentage of interests, allocation of profits and losses, members’ rights and responsibilities, buy-out provisions and covers other important items.

    Obtain Licenses and Permits. Once your business is registered, you must obtain other necessary business licenses and permits. Regulations vary by industry, state and locality.

    LLC Taxes

    In the eyes of the federal government, an LLC is not a separate tax entity so the business itself is not taxed. Instead, all federal income taxes are passed through to the LLC’s members and are paid as part of their personal income tax. Note that though the federal government does not tax income on an LLC, some states do.

    LLCs must file a corporation, partnership or sole proprietorship tax return. Talk with your accounting professional to determine whether your LLC is automatically classified and taxed as a corporation by federal tax law, or which tax classification to choose that best meets your needs, as well as which tax forms to file. For additional guidance visit IRS.gov.

    There is an additional option of requesting S-Corp status for your LLC.  You’ll have to make a special election with the IRS to have the LLC taxed as an S-Corp, and must file prior to the first two months and 15 days of the beginning of the tax year in which the election is to take effect.  The LLC remains a limited liability company from a legal standpoint, but for tax purposes it can be treated as an S-Corp. Be sure to contact the state’s income tax agency to determine how it handles an S-Corp election as well. Your accountant can best guide you in making these decisions and filing the proper paperwork.

    Advantages of an LLC

    Limited Liability. Members are protected from personal liability for business decisions or actions of the LLC. This means that if the LLC incurs debt or is sued, members’ personal assets are usually exempt. This is similar to the liability protections afforded to shareholders of a corporation. Keep in mind that limited liability means “limited” liability—members are not necessarily shielded from wrongful acts, including those of their employees.

    Less Recordkeeping. An LLC’s operational ease is one of its greatest advantages. Compared to an S-Corporation, there is less registration paperwork and there are lower start-up costs.

    Sharing of Profits. There are fewer restrictions on profit sharing within an LLC, as members distribute profits as they see fit. Members might also contribute different proportions of capital and sweat equity. Consequently, it’s up to the members themselves to decide who has earned what percentage of the profits or losses.

    Disadvantages of an LLC

    Limited Life. In many states, when a member leaves an LLC the business is dissolved and the members must fulfill all remaining legal and business obligations to close the business. The remaining members can decide if they want to start a new LLC or part ways. However, you can include provisions in your operating agreement to prolong the life of the LLC if a member decides to leave the business.

    Self-Employment Taxes. Members of an LLC are considered self-employed and must pay the self-employment tax contributions toward Medicare and Social Security. The entire net income of the LLC is subject to this tax.

    New Tax Considerations

    Effective January 1, 2018, the tax audit rules affecting LLCs have changed. If you have an existing LLC, it is important to update your operating agreement to accommodate these critical changes.

    Stacy is a founding member of BauerGriffith, a business law firm providing high quality legal and business counsel to a wide array of clients, with an emphasis on non-profit organizations, small business and individual planning clients. She serves as outsourced corporate counsel for diverse clients, partnering with executive management to design, plan and implement stated and defined business objectives within legal parameters.


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  • Next up: What the NFL Draft Can Teach You About Finding the Best Talent
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  • What the NFL Draft Can Teach You About Finding the Best Talent

    In the first of this two-part series we are exploring three of seven objectives to keep in mind while securing the best employees for your business. Join us next month as we wrap up with the last four objectives to an effective recruiting, hiring and induction system.

    Every year at this time the NFL talent search is in full swing as scouts, coaches and owners strive to upgrade their team’s performance. Starting at season’s end they dissect results at every level to identify the gaps and needs for the coming season and how best to fill those gaps. Each of the 32 teams only has 53 slots to field a team that can win the division and make the playoffs.

    Of all the priorities you face building a successful business, one priority has to be establishing a successful sales team. The primary purpose of any successful business is to attract and retain customers, so it is logical that a talented team has to be high on an owner’s and leader’s priority list.

    As with professional sports, your goal is to get the right people in the right seats and select a candidate who has the best chance of being successful for you.

    • RELATED: Do the sports analogies really hit it out of the park for you? Here are some lessons from the Cleveland Cavaliers and the Cleveland Indians that you can apply to your small business.

    A proven recruiting, hiring and induction system should be based on seven specific effective objectives. Here we discuss the first three, and we will take a deep dive into the other four objectives next month.

    Objective No. 1: Win the talent war

    Start with your growth goals. Depending on the number of openings, the right hire can have dramatic impact on your results.

    Growing a business provides a continuous opportunity to energize and engage your whole team and help you attract the proven performers you need on your sales team. Your story as a growing company is attractive in a market where employee engagement is a major cause for top performers to look for new opportunities. Your recruiting process needs to intercept with those who are actively looking.

    Start your recruiting process with the goal of hiring the talent you will need to deliver your revenue growth trajectory over the next 12 to 36 months. Think like an investor and put your money in the best spot for revenue growth.

    You have X number of openings now or in the coming months—what kind of talent do you need? Are you dependent on “top performers” for a majority of your sales? Do you have real growth opportunities over the next 12 months? Do you have a specific sales talent gap and do you have the talent you need to capture these opportunities?

    What do you need to do differently to attract and hire the best talent who can do the job and win? The process of recruiting is a major challenge for business owners and leaders. Like any process in your business, improving the performance of your sales recruiting process is an ongoing exercise.

    Start with where you are today.

    Objective No. 2: Develop a sales candidate “profile”

    As we are learning from our marketing experts, the development and use of a customer profile helps a company understand what the perfect buyer needs and wants. The same process can work for attracting the perfect sales candidate. Your profile must take you beyond the experience listed on a resume and LinkedIn or found in a background check.

    What is the profile of a top performing B2B sales person? The best performers consistently get the sales job done so it is essential that your candidate profile identifies the things your top talent does consistently to win.

    Identify the behaviors and attitudes that proven performers display. Are the candidates comfortable with winning, goal achievement, money, success and a desire to win, or are they insecure and have limiting beliefs that undermine performance and make them complacent at a certain level of success? Do their personal beliefs, values, attitudes, biases and behaviors that impact success align with your company culture and values?

    Do they need to remain calm and confident to make sound decisions when under stress or in chaotic situations? Do they need to be adaptable, accept feedback, be coachable and willing to learn and change?

    Define the proven skills you need now and in the future. Past success may not always guarantee future success in a new environment so the interviews have to uncover areas of concern. The profile and your interview process help reveal the hidden sales weaknesses of a salesperson. Your process needs to identify the strengths and the weaknesses in order to determine their potential for getting the sales job done. Create a candidate scoring and ranking system that allows your interview team to keep score at every stage.

    Objective No. 3: Attract and recruit the talent that fits your profile

    Now that you have a candidate profile, you need to develop an attraction plan similar to the ones used for customers. As with attracting customers, talent recruiting is a two-way interview process. The question for the candidate is, “Why should I want to work for you?”

    As you are assessing and evaluating candidates, candidates are evaluating you against their current employer as well as others looking to upgrade their teams. The purpose, reputation and “brand” of your company—the job, the career, and earning potential, as well as the environment and culture of your company—are part of the candidate’s evaluation.

    The goal of the job advertising process is to attract resumes that best fit your criteria and help you find “fully formed" adults who have the competencies you need; they fit your culture and they demonstrate the positive attitudes, behaviors and passion to get the job done consistently.

    The goal of your advertising strategy is to grab their attention, get them interested and attract qualified prospects who are currently working but are actively looking for something better. Why you? Is your opportunity better?

    The best hiring decisions come down to your needs against a profile that details the proven skills, attitude and behaviors and the fit with the unique culture of your company. Stay tuned for objectives four through seven next month!

    Wayne Bergman is a business and executive coach and founder of Consistent Business Growth. Questions or comments about this piece? Email him directly at wayne@cbgrowth-gfm.com.


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  • Next up: When, Where and How to Conduct Employee Workplace Searches
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  • When, Where and How to Conduct Employee Workplace Searches

    Here are a few things to keep in mind if a search of employee space or property is ever needed.

    Company searches of employee space and property are sometimes necessary to preserve safety, workplace confidentiality, and other important company policies. Employers often wonder what is fair game for a search if they suspect something is amiss, or if they want to be proactive about policy enforcement. The answer is, inevitably, “it depends.” Employers can better protect themselves from claims of violations of privacy with knowledge of a few factors for determining the proper scope of a search, as well as the correct procedures for carrying one out.

    The Reasonableness Standard

    Federal and Ohio laws give us some guiding principles on whether an investigation is legal in the first place: it is generally so if (1) there is a reasonable basis for suspicion that the particular employee has committed a breach of policy, or (2) no reasonable expectation of privacy in the item or location exists. In the employment context, there is no need for a warrant or probable cause to conduct a search.

    Expectations of Privacy

    A company typically has an unfettered interest in its property, so there is no expectation of privacy by the employee. Company items with no expectation of privacy might include lockers, desks, and company phones or vehicles. Unless your company space is clearly provided for the private use of the employee, such as a bathroom or changing room, an employee generally has few rights to privacy while on company premises.

    However, an employee has an unqualified expectation of privacy in his or her own body. Cavity searches, undergarment searches, and, in most cases, pat-downs are off limits. If a situation is so delicate and the suspicion so heightened that you feel you need to perform a physical search of an employee do not do it. Your management staff should instead contact law enforcement.

    Somewhere in the middle, an employee has a high but qualified expectation of privacy in his or her own personal belongings. This expectation may be weakened by the company’s workplace search policy if the policy identifies with specificity personal property that is subject to search. Remember, however, that a company workplace search policy must be tailored to the interests that the company seeks to protect (and at this point, we’re really talking about “reasonable suspicion,” which we delve into below).

    Reasonableness of Investigation

    If an investigation is legal, the determinative question for whether the search of any particular space is proper is whether reasonable suspicion exists that evidence of a policy violation or crime may be found there. Reasonableness is fact-sensitive and varies by the case, but the most important point is that the search itself should be tailored to its purpose and the nature of the suspected misconduct. In short: no fishing expeditions.

    There are many factors that support the reasonableness of a search. Before conducting a search, try to make sure your search hits as many of the following factors as possible:

    • whether the search was on, or of, company or personal property;
    • whether the search was of a space or item in which the employee had a diminished expectation of privacy;
    • whether there is credible evidence of misconduct;
    • whether the search is for a limited purpose and the search scope is limited to that purpose;
    • whether the employee is public or private (public employees have greater protection under the 4th Amendment; these constitutional protections have been extended to private employees in nine states, not including Ohio);
    • whether the search was conducted by authorized personnel;
    • whether the employee was notified of the search beforehand, and whether he or she acquiesced to it; and
    • whether there was a clear written policy informing workers about workplace searches.

    The search policies …

    In most cases, a well-written workplace search policy can set employee expectations for the course of employment. Your policy should be drafted by your human resources department or an attorney with experience in HR and employment law.  As to all policies, they are only as useful as your employees’ understanding of them. Before acting on a policy, you should make sure that your employee has knowledge of the policy, and ideally has signed a statement attesting that they have read and understood the policy.

    A private company sets the rules, for the most part. Employees are employed subject to your search policies – so long as the policies are legal and the employees are apprised of them upon hiring and as changes are made. Remember though, the policies should be in service of your legitimate company interests – safety, confidentiality, etc. – and should be reasonable in all respects. If the policy is unreasonable, it won’t help you much down the road if and when a company receives a claim against it.

    … And procedures

    Once you have your policies in place, assemble a team to administer the policies. Designated Human Resources personnel should be put in charge of investigating claims and carrying out searches. It’s best practice to have multiple people perform searches, with at least one recording what the search uncovered. Recordkeeping helps avoid liability if something is later reported missing.

    It’s also a good idea to be mindful of gender considerations for sensitive searches; a search should be conducted by at least one person of the same gender in case private or sensitive items must be searched.

    Reports of searches should include the reason for the search, the personnel conducting the search, the date and time of the search, the subject matter of the search, what was found, which items were seized, whether the employee was present, and what instructions were given to the employee following the search. All of this should be delivered to the Human Resources or risk management director for evaluation.

    Before developing a search plan, you should first verify available evidence of misconduct wherever possible. In developing the search protocol for any particular offense, consider the worker’s privacy expectations and map out your strategy accordingly. Always ask for written consent immediately before beginning; you should communicate the investigation process to the employee so that he or she is fully informed.

    Finally, if your policies are well-drafted, feel confident acting accordingly, but never physically detain an employee or use physical or verbal threats or coercion to enable a search. If an employee refuses to cooperate, you can assert additional disciplinary action, but be careful not to cross a line that could lead to civil liability or criminal culpability.

    Nick Weiss is an attorney at The Gertsburg Law Firm. An audit of your policies can help you avoid the pain of lawsuits. The Gertsburg Law Firm introduces CoverMySix, a one-stop legal audit for your business, led by award-winning litigators and in-house counsel. CM6 minimizes your exposure to lawsuits, investigations, disgruntled employees and customers, and all the damage that comes with them. Learn more about how to protect your business from lawsuits at covermysix.com.


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  • Next up: Emergency or Not? Where to Turn for Medical Care
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  • Emergency or Not? Where to Turn for Medical Care

     

    When you or a loved one is ill or injured, quick treatment is your top priority. But unless you think your problem is immediately life threatening, it’s best to call your primary care provider (PCP) before heading to the emergency room (ER). Your PCP can discuss your symptoms and tell you where to get the proper care and avoid any unnecessary medical costs.

    Below, we’ll discuss when is the right time to visit the ER, an urgent care clinic or convenience clinic.

    When to Use the Emergency Room
    The ER is best for treating life-threating conditions and injuries in need of immediate care. Since ER staffs are trained to treat these high priority patients first, anyone sitting in the waiting room with a non-emergency symptom like a sore throat or low-grade fever could be left waiting for long periods of time. ER visits can also result in expensive out-of-pocket costs because many insurance plans include higher ER copays or don’t cover ER visits at all if the situation is not determined to be a true emergency. 

    You should turn to an ER in instances of:
    Compound fractures
    Seizures
    Major head injuries
    Severe pains
    Poison ingestion
    Animal bites
    Severe burns
    Chest pains or symptoms of heart attack
    Any symptom or injury that is threatening the patient’s life 

    Be sure to understand how your ER coverage works with your insurance plan to avoid unexpected bills and only go to the ER in the case of a true emergency. 

    Non-emergency Options to Receive Care
    Medical Mutual wants you to get treated at the right place and with the efficiency, quality and attention you deserve. If you have a minor illness or injury you think requires prompt attention, but can’t reach your PCP, urgent care clinics and convenience clinics are good, and usually less costly, alternatives to the ER.

    Urgent Care Clinic
    Not only will you save time, but you’ll save money. Urgent care clinics offer shorter waiting times, and sometimes you can be seen immediately. Some clinics are open 24/7 and most others have extended hours (early morning, late evening and weekend hours). Clinic staff members are specially trained in treating minor injuries and illness, and they will recognize if a higher level of care is needed and refer you appropriately. 

    An urgent care clinic can help you with: 
    o Asthma and wheezing
    o Back pain
    o Colds and flu
    o Ear or eye infections
    o Minor allergic reactions
    o Minor lacerations or burns
    o Rashes
    o Respiratory infections
    o Sore throats
    o Sprains or strains
    o Urinary and kidney tract infections

    Convenience Clinics
    Convenience clinics are another good option for treating minor illnesses and injuries. These clinics are often located in drug stores and grocery stores and are staffed by nurse practitioners or physician assistants who can diagnose and treat many illnesses and write prescriptions.

    A convenience clinic can help you with:
    o Sore throat or bronchitis
    o Pink eye
    o Ear infections
    o Various vaccinations

    Finally, if you receive treatment from an urgent care or convenience clinic, don’t forget to schedule a follow-up appointment with your PCP to discuss the course of treatment prescribed and see if further instructions are needed.

    Finding a Facility
    When looking for an ER, urgent care or convenience clinic, it’s important to always check that the facility is in your health insurance network to avoid expensive out-of-pocket costs. If you are already a COSE MEWA member through Medical Mutual, finding a facility is easy with our Find a Provider tool

    The material provided is for your information only. It does not take the place of your doctor’s advice, diagnosis or treatment. You should make decisions about your care with your doctor. What is covered by your health insurance will be based on your specific benefit plan.

     
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