Legal Corner

ADA
Health care provider restrictions is a basis for accommodation denial

In Hohn v. BNSF Railway Company, (8th Cir.), the court ruled, "The ADA does not require an employer to permit an employee to perform a job function that the employee's physician has forbidden." An employee who was placed on leave and told to have his eyes examined, was diagnosed with an advanced stage of a degenerative eye disease that causes tunnel vision and night blindness, for which there is no known cure. While his job required a 360-degree visual environment, one of his doctor's restrictions was that he not work in any job that requires more than 15 degrees of visual field. As a result, the employer did not return him to work.

He filed suit claiming he could do and had been doing tasks that exceed his doctor's restrictions. In denying a new trial, the court said the plaintiff selected his doctor and did not submit any medical evidence to contradict his doctor's restrictions.

In another case with similar results, Wulff v. Sentara Healthcare, Inc. (4th Cir.), a health care provider gave an employee work restrictions, which she gave to her employer. When the employer said it could not accommodate those restrictions, she claimed her health care provider overstated her restrictions and that they were misleading. In affirming summary judgment for the employer, the court said that the plaintiff submitted the form without taking any steps to clarify or correct the alleged misstatements and that her employer was justified in abiding by the restrictions on this form.

Worker fired after panic attacks wins $21.7 million in bias case

A former customer service representative for City of Industry, California-based Valley Vista Services Inc. argued that her claims of suffering from anxiety attacks were met with skepticism by the waste disposal company, that it failed to grant her leave time and other accommodations because of her condition, and fired her.

A jury in Los Angeles Superior Court awarded her $21.7 million, finding that Valley Vista and its parent company, Zerep Management Corp., discriminated against her because of her mental disability and wrongfully fired her, and that it acted with malice.

Win for employers - court rules random alcohol tests do not violate ADA

The U.S. District Court for the Western District of Pennsylvania dismissed the Equal Employment Opportunity Commission's (EEOC) case against U.S. Steel Corp. over random alcohol testing for new employees at a plant in western Pennsylvania.

The decision in EEOC v. United States Steel Corp., No. 10-CV-1283 (W.D. Pa. Feb. 20, 2013), marks the first time that any court has addressed this issue and could serve as a reference point for employers accused of discrimination through their use of medical examinations.

While the EEOC alleged that U.S. Steel's policy of randomly doing breath tests on probationary employees constituted a medical examination, the court agreed with U.S. Steel that the random testing program is job-related and consistent with business necessity because it allows the company to detect alcohol impairment on the job, which is a workplace hazard.

The decision is expected to be appealed, so employers should keep an eye on the case.

FMLA
Study: FMLA leave can be an 'Early Warning System' for disability absences

According to a study by the Integrated Benefits Institute (IBI), a benefits research and consulting firm, employers can use leave-taking under the Family and Medical Leave Act (FMLA) as an "early warning system" to predict and prevent disability absence.

Analyzing data from 161 companies and 520,000 employees, Early Warnings: Using FMLA to Understand and Manage Disability Absence suggests that employers have an opportunity to minimize disability costs by developing strategies to connect at-risk employees with existing benefits.

Findings include:

• Employees who use FMLA are more likely to use STD the following year.
• Employees without access to STD benefits use more FMLA days.
• When preceded by FMLA claims, STD durations are longer, and later LTD claims are more likely.
• Employees who request FMLA leave but are denied as ineligible are at a higher risk of a later STD claim-and could benefit from health interventions.
• Contrary to a common perception, employees aren't any more likely to take intermittent FMLA on a Monday or Friday as on any other weekday.

Recommendations include:

• Take advantage of FMLA as a way to improve employees' health at early stages to prevent future disability absences.
• Take steps to connect employees requesting FMLA leaves with resources such as employee assistance programs, ergonomic interventions and disease management programs, regardless of an employee's eligibility for FMLA.
• Foster discussions about job accommodation and stay-at-work at the earliest point.
• Coordinate activities across benefits programs silos, which continue to be barriers to effective FMLA management.
• Expand FMLA training for supervisors on early warning signs and potential interventions, and train employees on rights and responsibilities under FMLA.

Third party administrators can be held liable for FMLA Violations

Arango v. Work & Well was a proposed class action of current and former Sysco employees who claimed that the Company (through its TPA, Work & Well) violated the FMLA by insisting that employees provide more medical information than is legally required in the FMLA. While the court dismissed the FMLA claim because it could not be raised against the TPA, the plaintiff's attorney argued that the TPA tortiously interfered with the plaintiff's employment relationship with his employer.

According to an FMLA Insights blog by Jeff Nowak, attorney and co-chair of Franczek Radelet's Labor and Employment Practice, in this case, the plaintiff claimed that the TPA intentionally denied a portion of his FMLA leave even though it was supported by medical certification, and as a result, the TPA's actions caused Sysco (as the plaintiff's employer) to terminate his employment. The court accepted this argument, in part, because the contract stated, that "[the TPA's FMLA administration] services ensure consistent, complete FMLA compliance" and "will reduce the number of leaves and leave time out of work," language that is found in many TPA contracts.

Workers' Compensation
Limitation on temporary total disability benefits unconstitutional - Florida

A Florida appellate court has ruled the state's limit of 104 weeks for temporary total disability benefits is unconstitutional and granted up to 260 weeks of benefits for an injured worker whose temporary benefits had lapsed. After reaching the 104-week limit, the injured employee applied for permanent total disability benefits; however, a judge determined that the employee had not reached maximum medical improvement, and that it was "too speculative" to determine whether he would be permanently and totally disabled.

The judge's ruling noted that there was a "statutory gap" for indemnity benefits, and on appeal, Florida's 1st District Court of Appeal was asked to consider whether the benefit gap is constitutional.

In a unanimous decision, the appellate court found that the time limit is unconstitutional because it denies severely injured workers the "right to the administration of justice 'without sale, denial or delay'" under the Florida constitution.

Tennessee-based truck driver can proceed with tort suit in Kentucky - Kentucky

A truck driver for Nashville, Tenn.-based Western Express Inc., delivered a shipment of rolled paper to a Dixie Consumer Products L.L.C. plant in Bowling Green, Ky., when a Dixie employee ran over his left foot with a fork lift. The truck driver's leg later was amputated below the knee. While he received Workers' Comp from Western, he later filed a tort lawsuit against Dixie and the firm's parent company, Georgia-Pacific Consumer Product Holdings L.L.C. that contested the suit based on Workers' Comp exclusivity rules, arguing that they were immune to tort liability under Kentucky comp law as a "contractor" of Western.

Although the U.S. District Court agreed, The 6th District unanimously reversed that decision.

Employability a factor in disability benefits - Missouri

A long -term employee of Atlas Van Lines injured his back and underwent surgery. Doctors determined that he had a "failed back" that could not be corrected. The employee had worked as a mover and relied on his physical strength to earn a livelihood. Although he had a high school diploma, his reading and math skills were very low and a vocational counselor found that "functional limitations, limited education, and poor test results" would prevent him from finding a job in the open market.

When the Missouri Labor and Industrial Relations Commission ruled in favor of benefits, Atlas appealed, arguing in part that education should not be a factor. The appellate court upheld the award of benefits noting that "the determination of disability is not purely a medical question" and that age and potential for retraining are appropriately figured into the permanent total disability determination.

Workers' Comp claimant can withdraw from bias settlement - New York

An injured employee was "discharged" from her job at food service Compass Group USA Inc. a week after she filed a Workers' Comp claim against the company. A New York Workers' Comp judge found that Compass violated state Workers' Comp law and ordered the company to reinstate the employee.

Soon afterward, the employee filed a complaint in U.S. District Court, alleging that Compass fired her in retaliation for her comp claim. There was an agreement to settle the discrimination complaint and the employee was paid about $150,000 for back pay, attorney fees and a waiver of her reinstatement judgment.

When a Workers' Comp judge later rejected the settlement, ruling that the employee could not waive her right to compensation without approval from the New York State Workers' Compensation Board, Compass sought approval of a redrafted agreement, but the employee withdrew her consent of the agreement.

Compass appealed, arguing that the discrimination complaint was not a claim for compensation under Workers' Comp law, and therefore the discrimination complaint settlement did not need Workers' Comp board approval. A three-judge panel of the New York Supreme Court's appellate division unanimously upheld the settlement's dismissal noting that New York law requires the board to approve settlements that "(settle) upon and (determine) the compensation and other benefits" due to claimants. "In our view, the agreement here involved such 'other benefits,'" the ruling reads.

Lunchtime injury compensable - North Carolina

A customer service representative (CSR) for Verizon Wireless was required to take a one-hour unpaid lunch period every day. Verizon allowed employees to stroll through the building for exercise during their breaks.

Walking during her break, the CSR slipped on ice chunks that had fallen from a soda machine in a hallway. She hurt her knee, aggravating an old injury. Verizon argued that she wasn't working at the time she fell. The court said that didn't matter. She was taking a required lunch break, walking in an area where she was encouraged to walk and fell. (Mintz v. Verizon Wireless, No. COA12-306, Court of Appeals of North Carolina, 2012)

Trucker due temporary disability benefits despite driving history - Ohio

The Ohio Supreme Court ruled that a truck driver who was fired for having too many traffic citations should receive temporary total disability Workers' Compensation benefits from the traffic accident that cost him his job. After his third vehicle accident, in which he injured his back, the company's liability insurer dropped his coverage and subsequently the company fired the driver.

Initially, a Workers' Comp hearing officer denied benefits, noting that termination was a "voluntary abandonment of employment" since the driver was fired under a company policy that requires termination after three traffic violations.

On appeal, Ohio's Court of Appeals for Franklin County ruled that the moving violations could not be considered a voluntary abandonment of employment because they happened previously or simultaneously to his back injury. The Ohio Supreme Court affirmed the appellate court decision.

Adjuster awarded benefits for injury between appointments - Pennsylvania

The Pennsylvania Workers' Compensation Appeal Board affirmed a Workers' Compensation judge's decision awarding medical benefits to a field claims adjustor who was traveling between appointments when she was injured while assisting in clearing the road of aluminum siding that fell from another vehicle. She reported to the employer's office every morning and then left to attend appointments in a company car. While the employer contended that the adjustor was not a traveling employee but rather had a fixed place of work to which she reported every day and only traveled as necessary, the court disagreed and found she was a traveling employee and that her actions were not so far removed from her usual employment as to constitute abandonment. Doutrich v. Donegal Insurance, 27 PAWCLR 225.

Workers' Comp exclusive remedy in asbestos case - Washington

Since there was no proof that the employer, Boeing, had actual knowledge that an employee's exposure to asbestos in the workplace was certain to cause injury, the employee, who had mesothelioma, was limited to the relief provided by Washington's Workers' Compensation law, an appeals court ruled.

Although the evidence clearly demonstrated that Boeing knew of the dangers of asbestos exposure, a "known risk of harm... is not enough to establish certain injury," the court said. There must be evidence that "Boeing had actual knowledge that its employees were certain to contract an asbestos-related disease."

Not everyone exposed develops mesothelioma, the court noted, and it was 25 years after employment that the employee was diagnosed. Watson v. The Boeing Company, Wash. Ct. App., Div. II, No. 42543-2-II