Legal Corner

ADA
ABA's summary of 2013 FMLA cases

Every February, the American Bar Association's (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year. This excellent resource (.pdf) summarizes all of the 2013 decisions.

Temporary impairment can be "substantial limitation"

An employee had an accident and fractured bones and torn tendons in his legs and knees. His doctors told him that with surgery and physical therapy, he would be unable to walk normally for at least seven months; without surgery and PT, he would be unable to walk normally for at least a year. He had surgery. Six weeks after the accident, his employer terminated his employment.

While the district court ruled that a "temporary condition, even up to a year" was not a substantial enough limitation, the Fourth Circuit cited Equal Employment Opportunity Commission (EEOC) regulations stating that the "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" if they are "sufficiently severe." The first federal circuit court to apply the ADA Amendments Act's (ADAAA) expanded definition of the term "disability," the Fourth Circuit concluded that being unable to walk for seven months, and even longer without surgery, was sufficiently severe to be "substantially limiting." Summers v. Altarum Institute, Corporation

EEOC can pursue claim against UPS return-to-work requirement as illegal under ADA

A Chicago federal judge ruled that the EEOC can pursue its claim challenging United Parcel Service Inc.'s (UPS) policy of discharging employees who can't return to work after 12 months of leave, finding that the rule may be an unlawful qualification standard under the ADA.

While UPS argued that the requirement is an attendance policy permissible under the ADA because regular attendance is an essential job function for its workforce, the EEOC contended that UPS's return-to-work rule is a "100-percent healed policy" and thus an impermissible selection criteria or qualification standard because it screens out or tends to screen out individuals with disabilities.

"Framed as such, the twelve-month policy can be considered a qualification standard--a medical requirement that an individual must meet in order to maintain his or her position with UPS--and not an essential job function," the judge wrote.

Attendance is essential function under ADA for nurse

In Mecca v. Florida Health Services Center, Inc., the court held that coming to work is an essential function of a "PICC" nurse. The nurse's primary responsibility was to insert intravenous catheters through a patient's vein until its tip rests next to the patient's heart. The nurse was granted leave on several occasions for panic attacks. He sought to be able to go home or be absent from work whenever he was experiencing an episodic flare-up of depression and anxiety/panic. Noting that the request would change the essential function of a job that requires punctual attendance and that no accommodation would enable the nurse to have punctual attendance, the court found for the employer.

Judge rejects obese saleswoman's disability bias suit

An Alabama federal judge last week nixed an ADA suit brought by an obese saleswoman, concluding that the physical characteristic of being overweight, by itself, is not evidence of an impairment. In a ruling that compared obesity to sporting a green mohawk hairstyle, the employee failed on both her disability claim and "regarded as" claim. Powell v. Gentiva Health Services, Inc.

Workers' Compensation
Refusing drug test associated with claim basis for termination - Illinois (federal)

An employer's policies required a drug test if an injured employee initiated a Workers' Compensation claim or be subject to termination. An injured employee refused to take the drug test because he didn't think that it should be a necessary consequence of filing a Workers' Compensation claim. He received Workers' Compensation benefits but was terminated and filed a retaliatory discharge action.

The federal Seventh Circuit Court of Appeals held that since the drug testing policy covered many other situations in which the employer faced potential legal exposure, including, pre-employment testing, random testing for the initial 12 months of employment, and the occurrence of any OSHA recordable accident, Workers' Compensation claimants were not singled out.

Hospital employee who fell while visiting newborn daughter may sue employer - Massachusetts

A federal district court denied an employer's motion for summary judgment in a negligence action filed against a medical center by an employee who slipped and fell on a wet floor in the Neonatal Intensive Care Unit (NCIU). The employee had given birth prematurely to a daughter who remained in the hospital's NICU unit due to complications. When the employee returned to work, she made arrangements to visit her daughter and pump milk and make up time by coming in early and leaving late.

The employer contended the civil action was barred by exclusivity. The district court disagreed, noting that while the injury occurred on the employer's premises, the employee was engaged in a personal activity that was entirely unconnected to her employment at the time of the injury.

Trip and fall on public street compensable - Missouri

An employee sustained injuries when she tripped on a crack in the street while walking back to her office after going to look at a new office building her employer was having constructed. While the employer contended the injury did not arise out of and in the course of the employment because the employee was equally exposed to the risk in her normal, non-employment life, the court found that the employee was exposed to cracks in that particular street because of her employment.

Drinking multiple shots dooms comp claim - Nebraska

An employee of a sports pub consumed several shots at work. He was injured in a fall and taken to the hospital, where his blood alcohol level was 0.221.While he argued that he choked on a piece of food that caused him to fall, a medical expert testified about the types of impairment that could result from the high blood alcohol level. The appellate court held that all this was sufficient to support a finding that the employee was intoxicated at the time of his fall and that the fall was caused by his intoxication.

Resolving claim of undocumented worker who returns to Mexico -Nebraska

In a complex case, Visoso v. Cargill Meat Solutions, the Nebraska Supreme Court addressed the issue of an illegal worker who suffered serious injuries in 2006 and was determined to have reached maximum medical improvement in 2011. Before that time, the worker returned to Mexico and the vocational counselor appointed to assess his loss of earning capacity was unable to do so because there was no earning data from the community in which Visoso lived.

Last year, Nebraska's Supreme Court overruled a compensation court that declined Visoso's claim for permanent impairment and loss, noting, "when no credible data exists for the community to which the employee has relocated, the community where the injury occurred can serve as the hub community."

On remand, a compensation court judge found Visoso suffered a 45 percent loss of earning capacity in Schuyler, Neb., where he was injured. Visoso appealed again, arguing that the compensation court judge improperly reached his decision without considering the evidence provided by a vocational rehabilitation expert retained by Visoso. The Supreme Court agreed that the judge failed to weigh all the evidence and remanded the case to the compensation court.

Employer of illegal immigrants covered by exclusive remedy - New York

The New York Court of Appeals has upheld a lower court ruling that an employer does not forfeit the exclusivity defense in third-party actions for indemnification or contribution filed against it on the basis that the employer hired an undocumented alien. A hospital hired a contractor that employed illegal immigrants to work on a demolition project at the hospital. They were injured and the contractor paid Workers' Comp benefits.

The men filed a personal injury suit against the hospital, citing violations of the state's labor law. The hospital later sued the contractor to recover damages it incurred, but the court found in favor of the contractor. The undocumented workers enjoyed the benefit of the Workers' Compensation laws; the employer should as well. New York Hospital Medical Center of Queens v. Microtech Contracting Corp

Bankruptcy judge shakes up asbestos litigation with ruling - North Carolina

A federal judge has found that Garlock Sealing Technologies LLC's liability for present and future mesothelioma claims is $125 million, far less than claimants' push for over $1 billion. The court rejected estimating Garlock's liability by application of a formula that simply projected its past settlement history forward. Instead, the court focused on the merits of the claim and found Garlock's history of settling mesothelioma claims "was infected by the manipulation of exposure evidence by plaintiffs and their lawyers."

The ruling may shift the asbestos litigation landscape as several manufacturers are citing it and, if successful, it could become easier for some companies to reduce the payments they make to compensate people suffering from asbestos-related cancers.

Widow receives $17 million in wrongful death settlement - Pennsylvania

The widow of an electrician who died in a crane accident at Veolia Energy's Schuylkill steam plant in Grays Ferry, Pa., will receive $17 million, in what is believed to be the largest wrongful-workplace-death settlement in Philadelphia County history.

In June 2011, the employee died when a 300-pound iron hook fell from a crane and struck him. According to the estate's lawsuit, "There is substantial evidence that Veolia intentionally disabled the safety limit switch" that could have prevented the fatal accident. The lawsuit claims that the steam plant ignored recommendations to replace the limit switch after a similar crane accident in 2004.

Chiropractic treatment not reasonable and necessary without lasting improvement - Pennsylvania

In Womack v. Workers' Compensation Appeal Board (The School District of Philadelphia), the Commonwealth Court of Pennsylvania affirmed a decision by a Workers' Compensation Judge (WCJ) finding chiropractic treatment not reasonable or necessary. The injured worker suffered herniated discs in the lumbar spine, right medial meniscal tear, right shoulder pain, and chronic lumbar pain with anxiety and depression, in the work injury. The WCJ noted that relief from the chiropractic treatment was only temporary and that the injured worker is able to perform the exact treatment at home and feel the same amount of relief she receives at the chiropractor's office.

Employee may not sue statutory employer for work-related injury - Tennessee

A baking company hired a contractor to provide sanitation services at one of its bakeries. An employee of the contractor was injured and received Workers' Compensation benefits from the subcontractor. While the employee filed suit against the baking company, the court held the exclusive remedy rule protects statutory employers from tort claims by employees of their subcontractors for injuries covered by the Tennessee Workers' Compensation act, even in situations in which the statutory employer was not required to pay Worker's Compensation benefits to the worker.