Legal Corner

ADA
Win for employers: Court finds EEOC interpretation of medical confidentiality under the ADA as overbroad

The Seventh Circuit's decision addressed the question whether Thrivent Financial for Lutherans (Thrivent) violated the ADA's confidentiality provision by allegedly disclosing medical information about a former employee to prospective employers. While the employee in this case periodically suffered disabling migraines, he failed to disclose this to his employer at the outset of the relationship. It was only after he had failed to show up for work without explanation and the employer made several attempts to contact him, that he sent a lengthy email detailing his debilitating migraines.

After the employee quit, he hired a reference checking agency and found out his former supervisor disclosed his migraine condition to prospective employers. The EEOC sued for violating the confidentiality requirements of the Americans with Disabilities Act.

Under what it terms the section's "plain language," the Court found that the duty under the ADA to maintain confidentiality over medical information as a result of "medical examinations and inquiries" is limited to health-related questions, not merely performance. For coverage under this section, at the very least, an employer must initiate the inquiry "with some preexisting knowledge that the employee was ill or physically incapacitated." In this case the panel held that the employee's volunteering of the medical information - in response to an inquiry about his absence from work - did not fall into the category of protected "medical examinations and inquiries."

While a win for employers, the court's rejection of the EEOC's broad reading of ADA confidentiality does not eliminate the need to remain vigilant about disclosing employees' health information to those without a need to know. Moreover, state laws such as California's Confidentiality of Medical Information Act, may still apply.

Medical marijuana users denied ADA protections

The 9th U.S. Circuit Court of Appeals recently held that California residents' medical marijuana use was not protected by the ADA. Since using medical marijuana is permitted by state law but prohibited by federal law, medical marijuana was an illegal use of drugs under the ADA. James, et al. v. City of Costa Mesa, et al.

FMLA
Court upholds employee termination two days after FMLA request

The discipline or termination of an employee who has requested or is on FMLA leave poses challenges for employers. A recent case from the 10th Circuit Court of Appeals, Brown v. ScriptPro, LLC, provides guidance for employers in this situation.

The employee had received mixed performance reviews, which cited argumentative and abrasive behavior, excessive Internet use, and lack of respect for personal boundaries. After the review, the performance issues continued and he was belligerent toward a customer and missed a critical deadline.

A few months later he requested FMLA leave to attend his wife's doctor appointment. The employer terminated him two days later for "unresolved, previously discussed performance issues."

The court found that the employer provided undisputed evidence that the employee would have been terminated regardless of this or any other FMLA-protected request. Documentation of the employee's performance problems in his review and continued documentation of his performance problems thereafter were the keys to the employer's success.

Workers' Compensation
Employee raped at work to receive maximum benefits - Missouri

An employee raped by a co-worker filed a Workers' Compensation claim based on physical and psychological injuries that she suffered in the attack. In her filing, the woman sought to receive the state's maximum benefit amount, though she reportedly did not remember how much money she made at the time of her attack. An administrative law judge awarded the maximum weekly permanent partial disability benefits because the employer was late in filing its response. The Court of Appeals affirmed the award noting that thee employer's untimely filing should be treated as an admission that the claimant was entitled to maximum benefits.

Permanently disabled worker entitled to vocational rehabilitation - Nebraska

In Becerra v. United Parcel Service, a worker injured his lower back in a work-related accident. He suffered a 15 percent loss of earning capacity and was limited by permanent work restrictions. At the time of the accident, he earned $12.60 per hour and worked 17 hours per week while attending college. After his injury, the employer did not offer him his former position or any other job and the employee wanted to return to school.

The vocational rehabilitation counselor said that his recommendation for vocational rehabilitation depended on a determination of the average weekly wage. In Nebraska, when a permanent injury results from the accident, the weekly wages are computed based on a 40-hour workweek. Since the worker was an hourly employee who suffered a permanent injury, his average weekly wage based on a 40-hour workweek was $504 rather than $217.86 based on a 17-hour workweek. A 40-hour workweek at an average weekly wage of $217.86 would be a job at less than the minimum wage and far less than the wage the worker was earning when he was injured. The court determined that such employment would not restore the worker to suitable employment.

Wife entitled to pay for care of injured spouse - New York

In John D. Miller v. Joyful Farms et al, the New York Supreme Court Appellate Division ruled the wife of a man rendered a paraplegic as a result of a workplace accident is entitled to pay for providing care for her spouse. The court ruled that, "The employer is responsible for claimant's medical care and treatment, including nursing and home care services." Substantial evidence was presented that the wife provides such services and prevailing health cost data could be use to determine the spouse's pay.