Legal Corner

ADA
ADA does not require nexus between job functions and requested accommodation

An assistant attorney general suffering from osteoarthritis of the knee asked for free on-site parking at her workplace. Feist v. Louisiana, No. 12-31065 (5th Cir. September 16, 2013). The request was denied and five months later the employee was terminated for poor performance.

When the employee sued for failing to accommodate her disability and retaliation in violation of the ADA, the district court ruled in favor of the employer, noting the employee failed to show how the denial of on-site parking limited her ability to perform the essential functions of her job. Upon appeal, the court noted the ADA's text gave "no indication that an accommodation must facilitate the essential functions" of an employee's position.

The Court found the requested reserved on-site parking might have been an appropriate accommodation as it would have made the workplace "readily accessible to and usable" by the employee, as stated in the ADA's definition of "reasonable accommodation" and returned the case to the district court to determine if the accommodations were reasonable. The Court affirmed summary judgment in favor of the employer on the employee's retaliation claim.

Too much medical information can violate ADA's restrictions on inquiries

A decision from the U.S. District for the District of Colorado (Fraser v. Avaya, Inc.) underscores how careful employers need to be to ensure that their forms for obtaining medical information are narrowly focused on the medical professional's assessment of the employee's ability to perform job duties and that access to the forms is rigidly controlled.

In this case the employer used a form for multiple purposes - FMLA, Workers' Compensation, disability, welfare benefits, and so forth. While the court recognized that the employer, in its capacity as plan administrator, might need the information requested on the form, it found that the form created the risk that medical information could be provided to employer's representatives acting in other capacities and might exceed the job related/business necessity standard.

FMLA
Poor performance discovered during FMLA leave basis for discharge

Evidence of previously unknown poor performance is a sufficient basis for terminating an employee, even if that evidence is discovered during the individual's leave under the Family and Medical Leave Act (FMLA), according to the 4th U.S. Circuit Court of Appeals.

In 2009, while a finance and benefits coordinator for The Arc of Prince George's County Inc., a private nonprofit, was on medical leave, it was discovered that many food-stamp-eligible clients were not receiving their benefits. When the employee returned from her medical leave, she was directed to correct the problem. Again, in 2011, while she was on another medical leave, co-workers discovered many more clients who were no longer receiving benefits because she had not filed the proper paperwork. The non-profit investigated and terminated her. Upon appeal, the 4th Circuit court agreed with the district court in finding that the employee would not have been able to keep her job even if she had not taken FMLA leave, therefore, she was unable to show that The Arc interfered with her FMLA rights.

Mercer v. The Arc of Prince Georges County Inc., 4th Cir., No. 13-1300

Volunteer firefighters are employees under FMLA

Volunteer firefighters who receive $15 per hour for responding to calls when they choose to do so are "employees" under the FMLA, the 6th U.S. Circuit Court of Appeals ruled. Although the district court agreed with the city, which employed 41 workers and 25 - 30 volunteer firefighters, that it was not covered by the FMLA, the 6th Circuit noted that the law borrows its definition of "employee" from the Fair Labor Standards Act (FLSA), and, accordingly, the appellate court looked to the FLSA definition and its interpreting case law.

The FLSA defines "employee" as an "individual employed by an employer" and "employ" as "to suffer or permit to work." The 6th Circuit determined that the volunteer firefighters, who are paid $15 for each hour that they respond to fires, meet this definition.

Workers' Compensation
Exclusive remedy bars waiter injured during intentional assault by coworker from suing employer - California

A pizza cook intentionally heated a pizza pan before placing a pizza on it. There was substantial horseplay among employees at the restaurant and the lead cook and other employees laughed when a waiter picked up the pan with his bare hands, suffering serious and permanent burn injuries.

In finding that the worker was limited to Workers' Compensation under the exclusive remedy, the court noted that the employee did not show that the employer had any knowledge of or involvement in the incident or that the pizza cook or lead cook acted on the employer's behalf. Furthermore, the lead cook was not a managing representative of the employer and therefore the exception of an assault does not apply.

Karty v. DePhilippis, No. D059554 (Cal. Ct. App. 06/12/13, unpublished).

Required vehicle exception to "going and coming" rule applies even when stop is for personal purposes - California

If the employer requires an employee to utilize her personal vehicle to get to work and back home so that the employee can make other work-related trips during the day, injuries sustained during the commute are said to arise out of and in the course of the employment under California's "required vehicle" exception to the going and coming rule. A California appellate court recently held that the required vehicle exception can be utilized within the tort arena as well where the plaintiff, a motorcyclist, contended that the company should be held liable, for injuries caused by a commuting employee who was required to drive her personal vehicle.

While the trial court ruled the employee was not acting in the scope of her employment when she made planned stops for a yoga class and frozen yogurt, the appellate court reversed, arguing that the incidental benefit to the employer of having the employee use her personal vehicle to travel to and from the office and other destinations had not changed.

Moradi v. Marsh USA, Inc., 2013 (Sept. 17, 2013)

Severance pay cannot be used to waive Workers' Compensation - Connecticut

A 28-year employee of a chemical maker was injured in June 2004, filed for Workers' Compensation in April 2005 and was terminated in November 2009. To receive 27 weeks of severance pay, he was required to sign a termination agreement. The agreement required him to release his employer from "any and all suits, claims, costs (and) demands," including Workers' Comp claims.

However, the Connecticut Supreme Court upheld a Connecticut Workers' Comp commissioner's decision that the agreement represented only salary, and could not be used to settle the Workers' Comp claim. The court noted that the employee only signed the termination agreement to receive his severance pay, and that the employer had failed to negotiate with him about keeping his Workers' Comp claim open in spite of his termination.

Stephen J. LEONETTI v. MacDERMID, INC., et al.

Limit on Workers' Compensation TTD benefits constitutional - Florida

A 104-week time limit on Workers' Compensation temporary total disability (TTD) benefits is not unconstitutional because claimants are eligible for permanent total disability payments once their TTD runs out, ruled the Florida 1st District Court of Appeals.

The decision in Bradley Westphal v. City of St. Petersburg et al. reverses a unanimous ruling in February by a three-judge panel of the appellate court. That ruling found that Florida's TTD benefit time limit was unconstitutional because it left injured workers without recourse if their TTD benefits ran out before being declared eligible for PTD benefits. According to the court, the time limit was designed as a deadline on the issue of maximum medical improvement.

RICO suit against Sedgwick & Coca-Cola dismissed - Michigan

A divided en banc panel of the Sixth Circuit Court of Appeals reversed a decision by a three-judge panel of the same Circuit Court allowing a RICO action filed against Sedgwick Claims Management and Coca-Cola Enterprises. In the RICO action, plaintiffs contended that the defendants had engaged in a fraudulent scheme involving the mail to avoid paying plaintiffs' Workers' Compensation claims. In its reversal and reinstatement of the original dismissal, the divided en banc panel (11 to 5) reasoned that if Congress had intended for RICO to serve as an alternative federal forum for Workers' Compensation disputes, "it would have provided more explicit guidance" to do so. Plaintiffs' expectation of Workers' Compensation benefits was not a sufficient property interest under the RICO statute, said the majority.

Workers' Comp sole remedy for office staff's mold claims - Mississippi

Two office workers sued a law firm saying their health deteriorated significantly during their employment because of exposure to toxic mold, a chemical used to kill the mold, a gas leak and fumes from raw sewage backups in the women's restroom. The Mississippi Supreme Court ordered the claims dismissed, saying that because the plaintiffs failed to demonstrate that their employer intentionally injured them.

Vaughn & Bowden, PA v. Young, Mississippi Supreme Court, No. 2011-IA-01763-SCT

Personal trainer injured between scheduled times denied benefits - New Jersey

A personal trainer worked for a health club training clients from 6:00-7:00 a.m., from 8:00-11:00 a.m., and from 12:00-3:00 p.m. She was injured at 11:15 a.m. when she tripped and fell, breaking her wrist on the premises. Her 11:00 a.m. client had not shown up, but she claimed she was returning exercise bands in preparation for the session. The trainer was in workout clothing, not her uniform. The Judge and Appellate Division noted: "She changed out of her uniform and into her personal clothes because she was on her personal time and no longer working."

Patterson v. The Atlantic Club, A-0657-12T1 (App. Div. July 11, 2013)

Pregnant worker's collision with wall renders fall compensable - New York

Reversing an earlier ruling by a Workers' Compensation law judge, the New York Workers' Compensation Board found that an aide who hit her head on the wall and fell to the floor while walking out of the ladies' room was entitled to compensation because the injury arose out of and in the course of employment.

In New York, where a worker's fall is caused by a reason personal to the worker, the board must consider whether the work environment impeded the fall. The aide was pregnant and suffered a vasovagal reaction due to her pregnancy, causing her to pass out and fall as she exited the bathroom. While falling, she struck her head on a wall, which caused a concussion and spine injuries. Because the wall was part of the aide's working environment and a factor in her injury, the injury was covered.

Manhattan Psychiatric Center, 113 NYWCLR 86 (N.Y.W.C.B., full board 2013)

Helper at farm is not independent contractor and is entitled to benefits - North Carolina

In an unpublished opinion, the North Carolina Court of Appeals found that a carpenter's helper was entitled to benefits because he was an employee of the farm. A maintenance worker was hired by the farm, paid a monthly salary, and allowed to live in a trailer on the farm. He hired a helper who was paid in cash by the owners.

As more workers were hired and lived in the trailer, the worker and helper were allowed to build an apartment in the barn. The helper suffered burns when a can of spray paint exploded, while he was smoking. The court concluded that both the helper and the worker were employees of the farm because they were paid regularly, allowed to live on the property, used materials and tools provided by the owners and the worker maintained control over the work of the helper. The court found that the helper's injury arose out of his employment because the construction of the apartment in the barn was necessary since he and the worker were forced to move from the trailer into the barn.

NFL's settlement to pay $765M to retired players alleging concussion-related injuries does not halt Workers' Comp claims - Pennsylvania

While the National Football League's tentative $765 million settlement for concussion-related liability claims will cover more than 18,000 retired professional football players, whether or not they sued the league over brain injuries, it may not stop Workers Compensation claims.

According to articles in Business Insurance, the settlement will apply only to players who have retired as of the date the settlement receives final judicial approval. Retired players who have filed concussion-related Workers' Comp claims in various states may choose to go forward with the claims. Some players could opt to drop their comp claims in states where the NFL settlement would reduce a Workers' Comp benefit award, or where their portion of the settlement could be subject to subrogation from insurers.

Time period to file to reinstate Workers' Compensation total disability benefits clarified - Pennsylvania

The Supreme Court of Pennsylvania clarified the question of how long an injured worker who goes back to work has to file to reinstate Workers' Comp total disability benefits in the decision of Cozzone v. Workers' Compensation Appeal Board.

The Court found that an injured worker has the entire 500-week "permanent partial entitlement period" within which to file a Petition for Reinstatement to total disability. In addition, if payments of compensation were made within the last three years of the 500 weeks, then the injured worker actually has three years after the date of the last payment to file. So, at a maximum, if the injured worker is receiving a partial disability benefit at the time the 500 weeks expire, the injured worker has 500 weeks plus three years to file a timely Reinstatement Petition.