Legal Corner

ADA
Minn. company charged with requesting too much employee medical information

The Equal Employment Opportunity Commission (EEOC) has charged Shoreview, Minnesota-based Cummins Power Generation Inc., a power generation equipment company, with violating the Americans with Disabilities Act (ADA) by requiring an employee to submit overly broad medical release forms. It maintains the company required an employee to sign various medical release forms that sought "irrelevant" information, and that it told the worker he had to sign a release before taking a fitness-for-duty exam. The employee was fired for refusing to sign the documents.

The EEOC maintains Cummins was making disability-related inquiries that were not job-related or consistent with business necessity by requiring the worker to execute an overly broad release. The EEOC also said the releases would have resulted in disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act, (GINA) and that the company violated both the ADA's and GINA's anti-retaliation revisions by firing the employee for his "good-faith" objections to the releases.

FMLA
EJury award of $173,000 upheld: 6th Circuit court finds FedEx failed to inform employee of consequences of not returning FMLA forms

In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court's ruling that the employer interfered with its employee's FMLA rights when it failed to provide written notification of the consequences of not turning in an FMLA leave certification. While FedEx offered FMLA leave and its management verbally asked the employee to complete a medical-certification form, the company never explained the consequences of not returning a completed form. The employee failed to provide FedEx with the medical certification, and following her absence for two consecutive days after the form was due, FedEx discharged her.

This case points out the need to be able to prove compliance with all aspects of the FMLA.

Poor fitness for duty certification process spells trouble for hospital

In Budhun v. Reading Hospital Medical Center, a credentialing assistant (typing is 60% of the job), took FMLA leave after breaking a bone in her hand. The employee told the physician she could type with the splint, so the doctor prepared a note, which read "No restrictions in splint." When she returned to work the hospital feared she could not perform her job at the same pre-injury level and refused to let her return, leading to the lawsuit. Following a grant of summary judgment in favor of Reading Hospital, the case was appealed. And the Third Circuit reversed, finding that the hospital had not provided a list of essential job functions to her physician. Further, if the hospital had concerns about the certification, it should have sought clarification with her health care provider (as long as the employee gives the employer permission to do so and return to work is not delayed), but it did not do so.

Employer pays for requiring employee to work while on leave, then reassigns

When a payroll manager for Books-A-Million (BAM) took leave for the birth of a child, she was "pressured" to work from home because the company was going through a crucial change in the payroll system. While she did work from home, the supervisor was unhappy with the progress and reassigned her to an unrelated job on her return.

An appellate court rejected the trial court's conclusion that because the manager was paid her full salary while working from home and therefore had no loss of income, she could not state an FMLA claim. The court wrote, "It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer's FMLA violation."

Workers' Compensation
Negligence action barred by exclusive remedy - Missouri

A construction worker can't file a negligence action against his supervisor despite the fact that the exclusive remedy provisions of Missouri's workers compensation law didn't cover co-workers at the time he was injured, a divided Missouri Court of Appeals ruled.

In this case a construction worker sustained permanent and catastrophic injuries when he was crushed by dowel baskets that had fallen out of the truck. The worker filed a negligence action against his supervisor, alleging he had allowed the baskets to be stacked and transported in an unsafe manner. However, the court found, "The duty to make the workplace safe from known dangers is a non-delegable duty owed by the employer, not co-employees."

Per diem for out of state travel not part of average weekly wage - Nebraska

In this case the worker was paid a flat rate of $20 extra a day when working outside of Nebraska and did not have to verify expenses. The Nebraska Court of Appeals affirmed the exclusion from a construction worker's average weekly wage of a per diem paid when the worker performed services outside of Nebraska, on the basis that the Compensation Court's finding that it was fixed at the time of hiring and was a real and definite economic gain to the worker was not clearly wrong. Fayle v. Thiesen Constr., 2014 Neb. App. LEXIS 142

Workers' comp must cover medical marijuana - New Mexico

Medical marijuana recommended by a doctor for an injured worker's pain must be paid for by the workers' employer and insurer, the New Mexico Court of Appeals ruled. Despite the drug's federal classification as a controlled substance, the court found that New Mexico law entitled the employee to reimbursement for marijuana to treat the high-intensity pain that followed failed spinal surgeries for a workplace back injury. Gregory Vialpando vs Ben's Automotive Services and Redwood Fire & Casualty

Cable technician commuting to work allowed benefits for auto accident injury - Pennsylvania

As a general rule, an injury occurring during the commute to or from work is not within the scope and course of employment and therefore barred from workers' compensation. In the case of Holler v. Workers' Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.), lower courts determined that a cable technician who was seriously injured in an auto accident on his way to work, was not in the scope of his employment, importantly noting that the employee had a fixed place of employment.

The Commonwealth Court disagreed, noting that one of the exceptions to the general rule that injuries suffered in the commute to or from work are not covered by workers' compensation is "the claimant has no fixed place of work." The technician's company vehicle was limited to company usage and his normal routine was to check in at the main office each morning, get his assignments and equipment, and then spend the day on the road. The Court found that the injured worker only stopped into the main office to get his assignments and equipment, and performed his actual work out of the office; therefore, the injured worker did not have a fixed place of employment. In such a case, the worker is called a "traveling employee," and such an employee is within the scope and course of his or her job even during the commute.

Holistic "medical" treatment in India denied - Pennsylvania

A Pennsylvania appellate court affirmed the dismissal of a petition for reimbursement of Ayurvedic therapy-a form of holistic alternative medicine that is the traditional system of medicine in India. According to the court, the employee, a licensed Pennsylvania nurse, failed to show either that the services were provided under the supervision of, or upon referral or prescription from, a licensed Pennsylvania health care practitioner. Moreover, the court found that 77 Pa. Stat. Ann. § 29, which limited payment of medical bills to services by Pennsylvania licensed health care providers, was not unconstitutional under equal protection or the commerce clause. Babu v. Workers' Comp. Appeal Bd. (Temple Continuing Care Ctr.), 2014 Pa. Commw. LEXIS 448

Responsibilities of employee plays role in award of benefits for injuries incurred during kickball game - South Carolina

While lower courts had denied benefits for an employee who was injured in a kickball game he organized for his employer, the Supreme Court of South Carolina held that the injuries sustained arose out of and in the course of the employment in spite of the fact that participation in the game was voluntary for the firm's employees. It argued, while attending the event may have been voluntary for the firm's employees generally, it was essentially compulsory for the injured employee, who served as the firm's Director of Creative Solutions and who had planned and otherwise organized the event as a team-building event. The high court noted that the injured employee's superior had approved team-building event and budgeted $400 for special T-shirts, drinks, and snacks. The injured employee shattered the tibia and fibula in his right leg after jumping and landing awkwardly on the last play of the game. Whigham v. Jackson Dawson Communications, 2014 S.C. LEXIS 367

Secretary 's PTSD claimed arising from alleged threats from supervisor barred as untimely- Tennessee

According to third party witnesses, a county sheriff allegedly threatened his personal secretary to "shave her dog, sugar her gas tank and burn her house down". The threats arose after the secretary allegedly told the sheriff's wife about an inappropriate relationship. Despite her post traumatic stress disorder, the Court barred the claim as untimely because the first notice of injury to her former employer was the filing of an intentional tort action against the sheriff and the county almost a year after the incident. State code generally requires notice to be filed within 30 days after the occurrence of the accident. The former secretary contended that she went into a state of panic after the confrontation and had to seek psychiatric help. Nuchols v. Blunt County, 2014 Tenn. LEXIS 666 (Sept. 19, 2014)

Exclusive remedy bars complaint related to take-home exposure to asbestos - Wisconsin

While the former employee argued that the take-home exposure to asbestos and a related disease, malignant mesothelioma do not as a matter of law . . . arise from the 'course of employment', a federal court dismissed a complaint filed against Weyerhaeuser Co., finding that it was barred by the exclusive remedy of workers' compensation. According to the court, it was implausible to suggest that the asbestos only caused harm once the employee left the employer's premises and went home. Boyer v. Weyerhaeuser Co.