Legal Corner

ADAAA
Working from home is not necessarily a reasonable accommodation

A federal district court in Michigan has granted summary judgment to an employer that denied an employee's request to work at home because of her irritable bowel syndrome (IBS). Employed as a resale buyer at Ford Motor Company, the employee was responsible for purchasing steel and reselling it to stampers who supplied Ford with vehicle parts. The position was, in Ford's words, "highly interactive," and the resale buyer often would visit supplier sites.

The employee was often absent and her performance ratings were low. She asked Ford to accommodate her IBS by allowing her to work at home for four days a week, but was denied. Ultimately she was fired and filed an ADAAA and retaliation charge with the EEOC. The court granted Ford's motion for summary judgment, finding that because of excessive absenteeism, the employee was not a "qualified individual with a disability." The court disagreed with EEOC's argument that the essential functions of the job could be done at home, noting that the job required interaction with others.

Move to straight shift not reasonable accommodation

Employees of the distribution dispatch center of Alliant Energy Corporate Services (AECS) work in teams and rotating shifts to monitor the distribution of electricity, gas and steam throughout a service area, and handle outages and other emergency situations to maintain the integrity of the systems. An employee who is a Type I insulin-dependent diabetic had difficulty managing her diabetes on the rotating shifts and received a medical certification from her physician recommending she work straight day shifts only.

AECS denied the request, noting the rotation was an essential function of the job, but offered three alternative positions, which the employee rejected. The employee took leave under FMLA for surgery and returned with doctor's restrictions to only work day shifts. AECS assigned her to a temporary light duty job, different from her regular job, and when the assignment expired, AECS offered several positions, which she refused. Ultimately, she filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission and then a lawsuit, alleging that AECS failed to provide her with a reasonable accommodation.

The 8th U.S. Circuit Court of Appeals ruled, holding that the rotating shift was an essential function of the job and since the employee could not work a rotating shift, she was unable to fulfill the essential function of her job without an accommodation. The court also pointed out that an employer does not have to "reallocate or eliminate the essential functions of a job to accommodate a disabled employee."

FMLA
Employer burned by equivalent position decision

Employed as a computer teacher for the Westport Board of Education in Connecticut, the employee, while on maternity leave, sustained a debilitating spinal cord injury during labor and her baby was born with a heart defect. Both medical conditions required her to take FMLA leave for an extended period of time. She was replaced and then given the option of returning to work as a substitute classroom teacher, a move she considered a demotion, and subsequently offered a full-time classroom teaching position not in her specialty.

After all was said and done, she sued claiming FMLA retaliation and interference. The school district tried to get the case thrown out, saying it did indeed offer her not one but two equivalent positions. The teacher did not perceive the positions as equivalent and the court accepted her position.

Professional pointers: Employers should take a cautious approach when offering an equivalent position as the regulations offer little leeway. Be sure the new position requires the same level of duties, skill, responsibility, earning potential, authority and opportunities for advancement, and understand how the employee will view the new position including prestige, authority and opportunity for advancement.

Workers' Compensation
Recreational hula-hoop injury not compensable - Florida

A financial eligibility specialist twisted her ankle while participating in a hula-hoop contest during the employer's annual spirit week. The contest was by invitation, but was not mandatory and took place during lunchtime, and was designed to promote employee morale and celebrate the accomplishments of the year.

A judge found that the injury was not compensable because participation was not mandatory and the activities did not produce a substantial direct benefit to the employer beyond improvement in employee health and morale.

Employer does not need to pay for employee's gastric bypass - Iowa

An employee who slipped and fell in 1999 experienced leg and back pain after the accident and at least two doctors said her pain could be relieved by losing weight. She received a 25% industrial disability. On the doctors' advice to lose weight, the employee underwent unauthorized gastric bypass surgery in 2006 and eventually lost 241 pounds. The surgery left her with a malabsorption condition that required her to take a higher dose of narcotics for her pain. She sought an increase in Workers' Comp benefits, because her medications left her as an unemployable "odd-lot employee," as well as reimbursement for her surgery.

After a series of appeals, Iowa appellate court said previous Workers' Comp rulings could only be reopened if the claimant's injury has worsened or if her earning capacity has been reduced since the original accident. While doctors recommended that she lose weight to ease her back pain, the court ruled the employee's obesity was not caused by her work injury and that she failed to prove the surgery aided her condition.

Ability to return to light-duty position prevents finding of total disability under odd-lot doctrine - Nebraska

A worker suffered an injury to her left shoulder and worked in a light-duty capacity. Later, she suffered a non work-related stroke and was diagnosed with a heart condition. The worker was terminated after having unexcused absences. She underwent surgery on her shoulder. The worker acknowledged that the employer paid medical bills related to her injury and sought permanent total disability benefits and vocational rehabilitation.

The worker argued that she was permanently totally disabled under the odd-lot doctrine. The court disagreed, pointing out that her doctor specifically concluded that she was not totally disabled and that her shoulder injury was "fairly minor." The doctor said that her only permanent restriction was no prolonged overhead use of her left shoulder and she could return to work. The employer said that it could have placed her into an accommodated position. This indicated that she could have returned to gainful employment and was not permanently totally disabled and, therefore, the Nebraska Court of Appeals held that a worker was not permanently totally disabled and denied her request for vocational rehabilitation.

Worker's Comp insurer can subrogate rape victim's civil settlement - New York

An aide at a juvenile detention center was physically assaulted, raped and kidnapped on the job. She received Workers' Compensation benefits for physical injury, post-traumatic stress disorder and rape, and was classified with a permanent partial disability. Subsequently, she sued the employer and several co-employees in the federal court for - among other things - deprivation of her civil rights, alleging physical and psychological damages. The federal action ultimately settled for $650,000. The employer's Workers' Comp insurer sought a lien for part of the settlement to recoup future Workers' Comp benefit payments.

After a series of appeals, an appellate division of the New York Supreme Court found that New York law allows insurers to subrogate civil settlements that are based on the same injuries that caused a Workers' Comp claim.

Undocumented workers covered by Workers' Comp protections - New York

In spite of the fact that the Federal Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful to knowingly hire undocumented (illegal) aliens, the dominant, although not unanimous, rule is that such undocumented aliens who sustain injuries arising out of and in the course of their employment are covered by the various state Workers' Compensation laws.

Two undocumented workers were injured while working for a contractor on a hospital's property. While the contractor provided them Workers' Comp benefits, the employees also sued the hospital for their injuries. The hospital sought indemnification from the contractor, but the contractor argued New York's Workers' Comp law barred indemnification.

The hospital appealed, contending that the contractor violated the federal IRCA law, which should result in the loss of Workers' Comp protections. But the appellate court found that Congress did not intend for IRCA to pre-empt or undermine state labor laws. The appellate court also pointed out that under New York's Workers' Comp law, an employer may be held liable for contribution or indemnification only if the employee has sustained a grave injury or when the employer agreed to do so under a contract.

Wages from concurrent employer cannot be deducted in calculating partial disability benefits - North Carolina

At the time a worker sustained a compensable injury to his foot while working for a manufacturer, he was also employed by a retailer. After the injury, he did not return to work for the manufacturer but he did return to work at the retailer. The worker sought Workers' Compensation benefits from the manufacturer and was awarded temporary partial disability compensation at the rate of two-thirds the difference between his average weekly wage at the time of his injury and the average weekly wages he earned after the injury while working for the retailer.

The worker disagreed with the method used to calculate his benefits. In a case of first impression, the North Carolina Court of Appeals held that the manufacturer could not deduct the wages the worker earned from the retailer in calculating his benefits. The court explained that in computing compensation for a worker who worked two separate jobs at the time of the injury, his average weekly wages are determined only from the earnings of the employment in which he was injured.

Participation in employer's "Special Attrition Plan" is evidence of voluntary withdrawal from workforce and causes a loss in disability benefits - Pennsylvania

Evidence that an injured worker attended his employer's "Attrition Plan" meeting and signed forms related to the employer's "Special Attrition Plan," that provided for, among other things, a lump sum payment to the worker of $35,000, was evidence that the worker had voluntarily withdrawn from the workforce, according to the Commonwealth Court of Pennsylvania. Hence, the worker had to demonstrate that he was seeking employment or that his work-related injury had forced him to retire. Since the worker testified that he was not seeking employment, and since the WCJ rejected his testimony as not credible that he retired because of his work-related injury, the WCJ's findings were appropriately affirmed.