Legal Corner

FMLA
Supervisor's comments create viable FMLA claim

A supervisor's alleged response to an employee who requested leave to undergo a hysterectomy saying it was "not a good time to take leave," and then urged her to read the book titled, No More Hysterectomies. While on FMLA leave, the employee who had a stellar record, learned that her domestic partner had cancer. Shortly thereafter, she was informed that she was being terminated in a reduction in force due to the loss of a major account. The Human Resources representative noted the termination might be a "blessing in disguise," as she would have more time to take care of her partner, and that, in any event, the employee "would not be able to give 100% to her job anyway."

In addition to these inexplicable comments, the court examined the manner in which employees were chosen to be terminated as part of the RIF. From the court's perspective, there was enough evidence to allow the FMLA claims to go to a jury. -Drew v. Quest Diagnostics, Inc.

Americans with Disabilities Act (ADA)
EEO says "No restrictions, full duty" violates ADA

One of the hottest areas of EEOC litigation right now involves the agency's efforts to root out inflexible leave policies. The EEOC recently settled a suit against Benedictine Health Center at Innsbruck, MN for maintaining a policy requiring employees who took medical leaves of absence to return to work with no restrictions unless it was related to an on-the-job injury.

According to John Hendrickson, regional attorney for EEOC's Chicago District, such "no restrictions" policies violate the Americans with Disabilities Act (ADA) because employers must explore whether a disabled employee with restrictions could return to work with or without a reasonable accommodation.

Under the terms of the settlement, Benedictine must pay $30,912 to two former employees who were not allowed to return to work because they had physical impairments that were not work-related. Additionally, Benedictine will revise its workplace policies to comply with the ADA and provide regular training to personnel who are responsible for carrying out the medical leave and return-to-work policies.

School district violates ADA by not transferring teacher with seasonal affected disorder to classroom with windows

A school district violated the ADA when it refused to transfer a teacher who had been diagnosed with seasonal affective disorder (SAD) to a classroom with external windows, the 7th U.S. Circuit Court of Appeals ruled. The case involved a kindergarten teacher from the school district of Somerset, Wis.

After being transferred to a room without windows, the teacher began to experience symptoms of SAD, a form of depression. On several occasions, the teacher verbally requested a change to a classroom with windows, but she was not moved. (Note: An employee's request for an accommodation need not be in writing or reference the ADA; it may be verbally communicated.) Both her psychologist and her primary care physician recommended that she take a leave of absence due to illness, which initially was three months but then extended through the school term.

A letter from the psychologist to the school district, explained that natural light was crucial to the employee's recovery and that her classroom without windows had been a major cause of her condition. The psychologist also testified that she would have been capable of returning to work if she had been provided a classroom with natural light.

Workers' Compensation
Reports from doctors who are not part of WC network admissible - California

A California appellate court made public its May 29, 2012 ruling that allows reports from doctors who are not part of an employer's Workers' Comp medical network to be admissible evidence for determining benefits.

Some observers saw the ruling in Elayne Valdez vs. Workers Compensation Appeals Board as a victory for injured workers and claimant attorneys.

Farm employee secures benefits for fall caused by gusty winds - Illinois

A worker at a farm was performing light-duty work when a gust of wind caused him to lose his balance and fall backward onto his outstretched left arm. He explained that he was attempting to prevent further injury to his lower back from a prior incident. He sustained injuries to his shoulder and lumbar spine.

While the farm asserted that the worker was not subjected to any risks greater than that of the general public, it was ruled the worker's injury arose out of and in the course of employment. Unlike the general public, the worker was required to work outside in the wind and was not permitted to remove himself from a windy environment.

Repetitive walking is workplace hazard - Illinois

The Illinois Workers' Compensation Commission ruled in March that workers who are required to walk around on the job can claim that action resulted in a compensable work-related injury.

The case involved a prison guard at Menard Correctional Center in Menard, Ill. The guard received benefits for his foot surgery, as well as disability benefits, after claiming that his job required him to walk between three to 10 miles per day.

Over a three-year span, employees-mostly guards-have filed some 230 repetitive trauma claims. Total costs of claims are more than $10 million. Media inquiries into the Menard situation and similar incidents have now spurred Grand Jury probes and official actions.

Volunteer firefighter proves use of prescribed narcotics caused condition - New York

A volunteer firefighter was injured when he was struck by a motor vehicle while out on call and received compensation for his injuries. Later, he was diagnosed with hypogonadism. The firefighter's endocrinologist found the pituitary gland was not the cause of the condition and noted that the narcotics the firefighter was taking for his work injuries was a "likely etiology." The firefighter sought compensation for his prescribed Androgel. The board held that the prescription to treat his hypogonadism was causally related to his work injuries, noting although the endocrinologist did not state with absolute certainty that the condition was caused by the firefighter's use of narcotic pain medication, absolute certainty is not required.

Officer hit by car while walking to get coffee due Worker's Comp - Oregon

An Oregon police officer worked for the department's internal affairs office, and most of her duties included office work. She was hit by a car while walking to get coffee across the street from her office.

While the police department denied Workers' Comp, arguing that she was injured during a "solely personal mission," benefits were awarded based on the argument that the officer was still at work during her coffee run, since she was expected to perform community-policing duties while not in her office. "When claimant was on duty and on the street, the street was her 'work environment..."

Violation of employer work rule leads to denial of benefits - Pennsylvania

An employee was injured while operating a forklift even though he was not certified to do so, and was aware of the employer's policy against using forklifts without proper certification. In this case, the worker finished his shift and was driving a forklift to the area where he would punch out for the day, simply because it was "fun to drive." In so doing, he managed to crush his foot against a pole.

In denying benefits, the Commonwealth Court agreed that all of the elements of the violation of a positive work order defense were present: "that (1) the injury was, in fact, caused by the violation of the order or rule; (2) the employee actually knew of the order or rule; and (3) the order or rule implicated an activity not connected with the employee's work duties."

Compensation for PTSD denied cop who shot, killed suspect - South Carolina

A South Carolina police officer who fatally shot a suspect cannot collect Workers' Compensation benefits for post-traumatic stress disorder (PTSD) because the use of deadly force is a "standard and necessary" part of his job, the South Carolina Supreme Court ruled in a split decision.

A deputy sheriff for the Spartanburg County Sheriff's Department was treated for anxiety and depression after shooting a man in response to a neighborhood disturbance, and a psychiatrist and psychologist deemed him unable to work. The South Carolina Supreme Court upheld prior decisions, noting that the mental trauma was a "standard and necessary condition" of employment, rather than an "extraordinary and unusual" circumstance that would be compensable. The majority noted that the officer was trained to use deadly force. The court's minority opinion contends that the mental injury was caused by "extraordinary and unusual" conditions, because officers rarely have to shoot suspects.

Waiter who choked on quesadilla cannot collect comp - Virginia

A host and waiter for TGI Friday's, claimed he was injured when he "attempted to swallow a piece of quesadilla that was too big for his esophagus." He suffered a perforated esophagus and collapsed lung after the choking incident and received emergency surgery.

The employee claimed that TGI Friday's employees often sample the restaurant's food so they can recommend fare to customers. The Virginia Workers' Compensation Commission found that while the injury occurred in the course of employment, there was nothing "unusual or abnormal" about the quesadilla that caused his injury.

"Swallowing partially chewed food was a risk faced equally on and off the job," the majority opinion reads. "Nothing about the TGIF quesadilla or the work environment increased that risk."