Legal Corner

ADA
Drug testing policy may not violate ADA

An employer's policy of drug testing all employees for prescription drugs that are packaged with warnings about operating machinery may not constitute an improper medical examination or an improper disability inquiry under the Americans with Disabilities Act (ADA), held the 6th U.S. Circuit Court of Appeals (Kentucky, Michigan, Ohio, Tennessee).

Dura Automotive Systems, Inc., a Tennessee manufacturer of glass windows for automobiles hired a third party company to administer drug tests. All employees were tested for twelve substances, including legal prescription drugs, which representatives of the company believed caused dangerous side effects that could lead to accidents. Employees who tested positive for prescription medication and provided a medical explanation were suspended from duty and given thirty days to transition to a less risky medicine or quit taking it altogether. A second positive test resulted in termination.

Employees who tested positive but provided documentation from their doctors indicating their medications wouldn't affect their work performance brought suit in the U.S District Court under the ADA and the Tennessee Disability Act. Although the sixth circuit reversed a jury verdict of $870,000 for six employees, it did so only to order a new trial on whether the drug-testing program was a medical exam or disability related inquiry under the ADA.

Employer takeaway: While the final outcome is still to be determined, the case illustrates the importance of avoiding any testing that could appear to be designed to reveal an impairment or health condition. The use of a third party to administer the drug testing and to conduct analysis of the results can help insulate an employer by ensuring that the employer receives only information relating to the prohibited substance.

FMLA
Employers take note: be careful how you send FMLA notices and requests

In September, we reported on the case in which the Third Circuit Court of Appeals reversed a summary judgment in favor of the employer when the employee claimed she never received an FMLA designation letter that her employer mailed to her via first class mail. There now is another case, Gardner v. Detroit Entertainment LLC dba MotorCity Casino, suggesting that sending an FMLA notice or request for recertification via email is not sufficient. In this case, a third party administrator sent an email requesting recertification to an employee who had been absent on intermittent FMLA leave nine times in September 2011, five more than anticipated by her doctor.

The employee claimed she did not receive the emailed FMLA notices and the court refused to dismiss her FMLA claims, determining that only a jury could decide whether the casino violated the law.

Employer takeaway: Employers are well advised in these instances to send notices in a manner that establishes proof of receipt, such as hand delivery, certified mail or overnight mail.

FMLA takes precedence over OSHA's recordkeeping requirements

The federal Occupational Safety and Health Review Commission (OSHRC) recently issued an important ruling for employers who deal with conflicting reporting and confidentiality requirements under the Occupational Safety and Health Act ("OSHA") and the Family Medical Leave Act ("FMLA"). In a recent case, Secretary of Labor v. United States Postal Service (USPS), OSHRC No. 08-1547 (09/29/14), the Commission held the confidentiality requirements of the FMLA take precedence over OSHA requirements that employers account for work-related injuries and illnesses on agency-mandated recording and reporting forms.

The case involved USPS employee who took FMLA leave for a work-related dust allergy. While an administrative judge found that the USPS violated two OSHA recordkeeping regulations by failing to record this on its OSHA log, the OSHRC agreed with the USPS that the confidentiality provision of the FMLA regulations, 29 C.F.R. § 825.500(g), required USPS to maintain the employee's FMLA documentation in a separate system of confidential records and precluded USPS from recording the information about her illness on OSHA forms.

Workers' Compensation
Worker classification litigation results are a reminder for employers to understand "independent contractor" classification - Kansas

The recent decision by the Kansas Supreme Court that FedEx misclassified hundreds of workers as independent contractors, which echoed earlier rulings in California and Oregon, highlights the importance of properly classifying workers. The ruling could have far reaching effects on businesses that use independent contractors. Craig v. FedEx Ground Package System Corp.

PTSD award for total disability 12 years after incident - Michigan

In Duncan v. State of Michigan, 28 MIWCLR 47 (Mich. C.A.C. 2014), the Michigan Compensation Appellate Commission affirmed a magistrate's decision and granted an open award for mental disability injuries to a corrections officer who was held hostage by inmates in 1990. While she returned to work in 1991, she never felt safe and left in 2002 with a duty-related retirement. She alleged mental injury as well as an orthopedic condition. The magistrate found no evidence of a work-related physical injury in 2002, but found that a delayed response to the traumatic work event in 1990 led to the officer's total disability and necessity to leave work in 2002 and was the cause of her post-traumatic stress syndrome.

Medical pot users can collect unemployment - Michigan

The Michigan Court of Appeals ruled that workers who are state-approved users of medical marijuana should get unemployment compensation if fired solely for testing positive for drugs, affirming lower court decisions that the state's medical marijuana law preempted its unemployment law. Braska v. Challenge Manufacturing Co.

Worker driving without headlights, seat belt entitled to comp - Mississippi

In a case involving the often misunderstood going and coming rule, a Mississippi worker who was in an auto accident while driving a company-owned vehicle with the headlights off and no seat belt on was awarded workers compensation benefits by a divided Mississippi Court of Appeals.

The court held that the accident fell within the employer-sponsored-travel exception because the employee was driving a company vehicle. Further, the employer had also failed to establish, by a preponderance of evidence, that the accident resulted from the employee's willful intent to injure himself even though an automotive technologist and crash reconstructionist hired by the employer found that the employee drove with little sleep, had taken pain medications, his headlights weren't on, he wasn't wearing a seatbelt and he was speeding at the time of the accident. Linde Gas v. Edmonds, 2014 Miss. App. LEXIS 547 (Sept. 30, 2014)

Driving to safety meeting before shift does not constitute special mission - Pennsylvania

An employee who sustained injuries in an auto accident as he traveled to a safety meeting held before the beginning of one of his work shifts is not entitled to benefits. A Pennsylvania appellate court affirmed a decision by the state's Workers' Compensation Appeal Board, reasoning that attending meetings was part of the employee's regular work duties; traveling to or from such a meeting was not a special mission. Simko v. Workers' Comp. Appeal Bd. (United States Steel Corp.), 2014 Pa. Commw. LEXIS 508 (Oct. 17, 2014)

Pre-injury job, not modified duty job, determines reinstatement of benefits - Pennsylvania

In Dougherty v. Workers' Compensation Appeal Board (QVC, Inc.), the injured worker was employed as a video producer who suffered a tear of his Achilles tendon and returned to work on a restricted basis. Later, he was reassigned to a writer-producer position, but did not have the requisite skills to do the work, and was terminated.

The injured worker filed a Petition for Reinstatement, which was denied by a Workers' Compensation Judge (WCJ) and the Workers' Compensation Appeal Board (WCAB). Though the WCJ found the employee remained physically incapable of performing the pre-injury job (video producer), the WCJ determined that he was physically able to do the writer-producer job.

On appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was reversed. The Court found that whether the injured worker could perform the restricted, post-injury job was not the key factor; instead, the issue was whether he was capable of performing the pre-injury position without restriction.

Exposure connected to employment sufficient for occupational disease claim - Tennessee

In Plotner v. Metal Prep, an employee contracted "farmer's lung" while working as a forklift operator. This was not caused by conditions created by the employer, but rather through exposure to grain dust produced by a grain facility adjacent to the employer's property. The appellate court held that for an occupational disease claim, an employee need not show that the exposure or risk is related to a substance that emanates from the employer; it is sufficient to show that the exposure or risk is "connected to" the employment.

Violation of OSHA standards leads to "penalty" worker's compensation payment to injured worker - Wisconsin

By a deadlock decision, the Wisconsin Supreme Court affirmed, the published opinion of the court of appeals in Sohn v. LIRC, 350 Wis. 2d 469 that an employer is required to make the "penalty" payment under Wis. Stat. § 102.57 to an employee who was injured at work, when an employer violates safety regulations. That statute requires employers to pay injured employees, 15% of the employee's worker's compensation award capped at $15,000.