Legal Corner

EEOC
EEOC is not backing down from its lawsuit challenging employer's use of health risk assessments and biometric screenings in its wellness program

In response to Wisconsin plastics manufacturer Flambeau Inc.'s request to have the EEOC's October 2014 lawsuit dismissed on the grounds that the assessment and screening requirements of its wellness program were protected under safe harbor provisions of ADA, the EEOC filed a motion for summary judgment against Flambeau. This indicates the agency intends to continue actively enforcing rules under the ADA and other federal laws governing employers' use of employee wellness programs and incentives.

Earlier this year new rules were proposed that would specifically prohibit employers from denying health care coverage to employees that do not participate in health risk assessments, biometric screenings or other wellness-related activities. The EEOC argued that requiring employees to complete wellness screenings or activities in order to qualify for health care coverage does not constitute a voluntary program.

FMLA
Employee has right to correct deficient medical certification, even with undetermined medical condition

Even though her medical condition was not determined at the time she requested leave, an employee who was terminated by Lehigh Valley Health Network could pursue a FMLA leave claim for its failure to seek clarification of her medical certification and its failure to afford her the opportunity to correct defects in the certification, the 3rd U.S. Circuit Court of Appeals ruled. Since her physician was unable to provide a diagnosis, the certification did not provide any information regarding her condition or its expected duration. She requested medical leave for a period of two days a week for approximately one month, but was terminated for excessive absenteeism when she was out from work for five days.

While a district court found the request for FMLA invalid because there was no information that would indicate that it was an FMLA-covered leave, the 3rd Circuit reversed, finding that the FMLA does include a right to cure and imposes an obligation on the employer to provide the employee with notice of deficiencies in the medical certification. The court found the need for a cure period to be paramount in this case, finding that "for an employee with an emerging condition the difference between a medical condition that supports leave and one that is deficient might be [determinable in] a matter of days". Hansler v. Lehigh Valley Hosp. Network, 3rd Cir., No. 14-1772 (June 22, 2015).

Workers' Compensation
Pro sports cheerleaders are employees- California

Professional California cheerleaders are employees entitled to workers compensation benefits as a result of a bill, A.B. 202, signed into law by Gov. Jerry Brown. Cheerleaders for the Oakland Raiders, Cincinnati Bengals and Buffalo Bills filed separate lawsuits last year alleging they were misclassified as independent contractors.

Fault of employer must be considered in tort case against third party - Georgia

In Zaldivar v. Prickett, 2015 Ga. LEXIS 508 (July 6, 2015) an employee filed suit against a third party alleging he sustained injuries in an auto accident as a result of negligence. The third-party contended that the employer negligently entrusted the vehicle to the employee and the court found it was appropriate to consider the employer's alleged negligence in spite of the fact that the employer could never be made a party to the action. That the employer was immune under the exclusive remedy provisions of the Georgia Workers' Compensation Act was not relevant to the apportionment of "fault."

Additional surgery necessary because of change in condition, benefits denied - Georgia

An employee, who worked for ABF Freight System, Inc. as a truck driver and dock worker, sustained a compensable injury to his right knee, had surgery, and received temporary total disability ("TTD") benefits during his absence from work. After returning to work without restrictions or limitations, his right knee pain worsened and he was diagnosed with arthritis in the knee and was advised that he would eventually need a right knee replacement. More than two years later, he had the surgery and was placed on a "no work" status and sought payment of TTD benefits, arguing that he had sustained a fictional new injury. ABF argued that it was a change in condition for the worse and was not compensable.

Whether an employee suffers a fictional new injury or change in condition is a question of fact for determination by the administrative law judge ("ALJ"). In this case, the courts found that he did not suffer a fictional new injury and that the two-year statute of limitation barred his claim.

Court deems FedEx drivers employees, not contractors - Kansas

FedEx Corp. drivers in Kansas are employees, not independent contractors rules the 7th U.S. Court of Appeals in Chicago in FedEx Ground Package System Inc. Employment Practices Litigation Chicago. This overturns a 2010 ruling by the U.S. District Court in South Bend, Indiana.

Changes in degree of disability must be considered in assessing treatment needs - Minnesota

The Supreme Court has canceled a lower court's denial of the workers' compensation claim of a Wells Concrete employee who was struck by a large drill in 2010. While there was no dispute of a work-related injury and compensation, issues arose when the injured employee claimed he suffered from a condition now called "complex regional pain syndrome." He argued he was entitled to permanent partial disability payments and would need a device to control pain implanted into his spinal cord. Although this was denied, the device was implanted and replaced two years later and a new claim filed. The Workers' Compensation Court of Appeals reversed the denial by a judge, noting the injury had not healed. The employer appealed and while the Supreme Court did not rule on the merits of the second claim, the court noted that this new claim needed a new ruling since the degree of disability had changed and the employer's ongoing liability means new cases have to be considered on their merits. So the new claim is fundamentally different than the earlier claim even though they're about the same treatment.

Registered sex offender assaulted at work denied benefits - Nebraska

A registered sex offender who sustained injuries when he was assaulted by his co-worker on the job isn't entitled to workers' compensation benefits, the Nebraska Court of Appeals has ruled. After seeing the employee listed on the Internet as a sex offender, a co-worker, who had had little contact with him, assaulted him with a brass hammer causing injuries to the nose, clavicle and shoulder. The court found that the assault "was wholly disconnected from Western Sugar's business" and that the motivation for the assault was personal. McDaniel v. Western Sugar Coop., 2015 Neb. App. LEXIS 121 (July 14, 2015) [2015 Neb. App. LEXIS 121 (July 14, 2015)]

Pressure to file false reports supports mental injury - New York

An appellate court, reversing a decision by the state's Workers' Compensation Board, held a worker had established that he was under an unusual level of stress when during a promotional event for a manufacturer of high-priced luxury goods, he was directed by a supervisor to fabricate reserve orders in order to deceive the manufacturer and enhance the employer's inventory. While the Board found that the stress was not greater than that of similarly situated workers because all other employees were subject to the same pressure, the appellate court held that the fact that other employees may have received the same instruction could not support a finding that the stress was not unusual. Cox v. Saks Fifth Ave., 2015 N.Y. App. Div. LEXIS 5864 (3rd Dep't, July 9, 2015)

Unexplained fatal embolism compensable - New York

Affirming a decision of the Workers' Compensation Board, a court ruled that a dispatcher's death arose out of and in the course of his employment where he collapsed and died. An autopsy determined that he died from a pulmonary embolism due to deep venous thrombosis of the lower extremities with an unknown cause. The court noted that unexplained or unwitnessed accidents that occur in the course of employment are presumed, to arise out of such employment. Hill-Chapman v. Earlybird Delivery Sys., LLC, 2015 N.Y. App. Div. LEXIS 5865 (July 9, 2015)

Good Samaritan worker entitled to benefits - Pennsylvania

A construction worker who was severely injured during an ill-fated rescue attempt trying to help a co-worker who had fallen into a concrete pit full of methane gas was within the course and scope of his employment when he sustained injuries, according to the Commonwealth Court. While trying to climb out of the pit, he lost consciousness and fell about 20 feet to the bottom, according to records. While the employer, Pipeline Systems, argued that the injured worker had abandoned the course and scope of his employment, the court noted that the employee was engaged in the furtherance of (Pipeline Systems') business or affairs and that the Act provides an employee who, while in the course and scope of his employment, goes to the aid of a person and suffers injury or death as a direct result of ...rendering emergency care, first aid or rescue at the scene of an emergency is entitled to benefits. Pipeline Sys., Inc. v. Workers' Comp. Appeal Bd. (Pounds), 2015 Pa. Commw. LEXIS 286 (July 7, 2015)

Painter is employee before signing independent contractor agreement and entitled to benefits - Pennsylvania

The adage, "timing is everything" is apropos here. The owner of Lee's Metal Roof Coatings & Painting forgot to have a painter sign an independent contractor's agreement and on the third day of employment, the painter fell off a roof and struck his head on the sidewalk, and underwent surgeries on his left ankle and right knee later in the month. Although the painter later signed the agreement, it didn't change employment status because "a written contract for services did not exist at the time of (his) injury."

Statute for reinstatement extended when collecting for different injury - Pennsylvania

An employee who suffers two totally disabling injuries, either of which would have entitled him to total disability benefits, cannot receive benefits for both at the same time. Instead, pursuant to Kane v. Workers' Compensation Appeal Board (Glenshaw Glass), he must receive compensation for one totally disabling injury in lieu of receiving compensation for the other totally disabling injury at the same time. Should circumstances change, the employee may seek reinstatement under Section 413(a) of the Act, 77 P.S. § 772, within three years after the date of the most recent payment of compensation received in lieu of compensation for the other injury, to which he otherwise would have been entitled.

Deputy involved in shootout receives $185,000 Workers' Compensation settlement - Tennessee

In spite of differing testimony from psychiatrists, a former Anderson County Sheriff's Office deputy involved in a shoot-out where two people were killed has received an $185,000 workers' compensation settlement based on a claim of post-traumatic stress disorder arising from the shootout. One psychiatrist later said the deputy was "malingering" and that he began complaining about post-traumatic stress only after he was the focus of a sexual abuse investigation.

Autopsy report reveals the presence of THC, benefits denied - Texas

A Texas appellate court affirmed a trial court's decision that a truck driver's death in a vehicular accident did not arise out of and in the course of the employment where an autopsy report revealed the presence of THC, the active ingredient in marijuana, in the driver's blood and urine tests. The burden to prove that he or she was not intoxicated at the time of the accident was not proved by the employee's representative. Denham v. Texas Mut. Ins. Co., 2015 Tex. App. LEXIS 7281 (July 15, 2015)