Legal Corner

ADA
Important EEOC guidance on when employers must start discussion regarding return to work accommodations

According to Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC, the ADA applies at any time - whenever a medical condition has the potential to significantly disrupt an employee's work participation. This means injured workers need to be active participants in their employers' stay-at-work and return-to-work decision-making process. Jennifer Christian, MD, MPH who chairs ACOEM's Work Fitness & Disability Section and Konopasky co-authored a summary of the way these two programs interact during the post-injury period:

"In the Worker's Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker's Compensation and ADA legal issues concurrently.

"This is because an employer's reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee's ability to work. If the condition has the potential to significantly disrupt the employee's work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

"Although the employer can stop at this point to determine whether the individual is a 'qualified individual with a disability' it may not be worthwhile. Since employees with workers' comp injuries are already employed at the time of injury, one can presume they meet the requirement of being 'qualified' for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA 'disability.' An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

"Thus, whether or not the worker's condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer's obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA."

More details about specific times when the ADA may apply.

Employers must consider job restructuring during the interactive process

In Kauffman v. Petersen Health Care VII LLC, the 7th Circuit Court of Appeals found that the employer must be willing to make minor reassignment of job duties to allow an employee to perform the essential functions of the job. In this case, a hairdresser worked in a nursing home and as part of her duties she was to push residents in a wheelchair to the beauty parlor. During a hysterectomy the hairdresser's bladder was reconstructed and a mesh lining was installed to secure it and she was told that pushing occupied wheelchairs could tear the lining. The administrator denied her request to have others push the wheelchair as well as a transfer to full-time laundry duties. The hairdresser quit and sued under the ADA.

While a lower court found that pushing the wheelchair was an essential function of the job, the 7th Circuit Court reversed the decision, focusing on how much pushing was involved and whether the task could be easily reallocated to other employees. It stated that if the task the employee could not perform is "so small a part that it could be reassigned to other employees at a negligible cost to the employer," it should not be considered an essential function. Additionally, the 7th Circuit took issue with the employer's lack of attempt to accommodate, regardless of whether the disability was permanent or temporary and ordered a trial.

FMLA
Employers can be held liable for violating FMLA even when worker is undocumented

A Wisconsin state appeals court said that companies can be held liable for violating the Wisconsin Family and Medical Leave Act even in instances where a worker is undocumented, saying that Burlington Graphic Systems Inc. violated the law when it fired an employee after a medical leave even though she was later discovered to be working illegally.

Workers' Compensation
No pay for security screenings - US Supreme Court

In a victory for employers, the US Supreme has ruled that companies do not have to pay employees for the time they spend undergoing security checks at the end of their shifts in a case involving an Amazon.com Inc. warehousing contractor. On a 9-0 vote, the court decided that employees of Integrity Staffing Solutions facilities in Nevada, where merchandise is processed and shipped, cannot claim compensation for the time they spend going through security screening - up to half an hour a day - aimed at protecting against theft. The screening process is not a "principal activity" of the workers' jobs under a law called the Fair Labor Standards Act and therefore is not subject to compensation.

Integrity Staffing Solutions Inc. v. Jesse Busk and Laurie Castro, U.S. Supreme Court, No. 13-433

Independent contractor vs. employee clarified by Michigan Supreme Court - Michigan

In Auto-Owners Insurance Company v All Star Law Specialists Plus Inc., the court of appeals convened a special panel and determined that all three of the criteria cited in MCL 418.161(1)(n) of the Workers Disability Compensation Act (WDCA) must be met before a person can be considered an "independent contractor," as opposed to an "employee". The three criteria are: (1) does not maintain a separate business, (2) does not hold himself or herself out to and render service to the public, and (3) is not an employer subject to this act. However, the Michigan Supreme Court has now reversed the ruling, finding that failure to satisfy any one of the three criteria will exclude an individual from employee status and establish an independent contractor status.

This specific case involved a landscaper who was injured while vacuuming leaves and sued All Star and one of the company's owners alleging negligence for failing to properly secure the leaf vacuum to a company truck, causing it to fall and strike him. While the Court of Appeals found that the landscaper was an employee because he did not employ other workers and, therefore, the exclusive remedy of workers' compensation protected All Star, the Michigan Supreme Court overturned the ruling.

Defendant awarded lifetime benefits after father's drug-related death - Missouri

Based on a former Missouri law that allowed a dependent to continue to receive life-time benefits when a worker who was totally disabled died from unrelated causes, the son of a worker who sustained catastrophic injuries when he was 22 years old after he fell from a roof in 1999, will receive lifetime benefits. His father died from acute intoxication with difluorethane and cocaine. That rule no longer applies for new injuries after June 26, 2008.

Schoemehl v Treasurer of the State of Missouri, 217 S.W.3d 900 (Lexis Advance), 217 S.W.3d 900 (lexis.com)

Incarceration does not bar disability benefits - Nebraska

In a case of first impression, the Supreme Court of Nebraska held that absent a specific statute requiring a contrary ruling, where an injured worker has proved a loss of earning capacity, his or her incarceration after sustaining a compensable injury is not an event that bars receipt of disability benefits.

Damme v. Pike Enters., Inc., 289 Neb. 620, 2014 Neb. LEXIS 188

Taxi driver denied benefits as independent contractor - North Carolina

A taxi driver was shot in the face by a passenger but could not collect workers' compensation because an appeals court agreed with the state's Industrial Commission that the driver was an independent contractor. The driver had signed an "associate agreement" with the taxi company that contained explicit language indicating the driver was not an employee, but an independent contractor. The driver kept all the fares and tips he earned; he was not paid any wages at all by the taxi company; he determined his own schedule; he owned his own cab; and he paid a flat monthly franchise fee to the taxi company.

Ademovic v. Taxi, USA, 2014 N.C. App. LEXIS 1241

Employee fails to show psychic injury resulted from "abnormal circumstances" - Pennsylvania

A divided state appellate court reversed a decision of the Workers' Compensation Appeal Board that had awarded workers' compensation benefits to the only African-American female in a workforce of approximately 200 employees, finding she had not established her psychic injury was the result of abnormal working conditions. The employee alleged that racial and gender harassment had led to depression. While she did not take medical depositions, she submitted records from her treating doctors; however, the Commonwealth Court found that without reference to the specific events, the medical records did not provide sufficient support for the Findings of Fact.

Frog, Switch & Manufacturing Company v. Workers' Compensation Appeal Board (Johnson)

Realtor rehabbing home can be employer - Pennsylvania

In a recent decision from the Commonwealth Court of Pennsylvania, Mark Zwick v. Workers' Compensation Appeal Board (Popchocoj), the injured worker was a general laborer, who suffered amputations of his right pinky finger and right thumb, and a laceration of his right hand, when an electric saw kicked back suddenly at a house renovation site. He worked for an individual, Adarlan Rodrigues, who did not carry workers' compensation insurance, so a claim petition was filed with the Uninsured Employers' Guaranty Fund (UEGF).

Mr. Rodrigues was self-employed and working for a licensed real estate broker and investor, Mr. Zwick, on a rehabilitation project. While the Workers' Compensation Judge (WCJ) granted the Claim Petition, finding that Mr. Rodrigues was the employer, and that the UEGF was secondarily liable, on appeal the Workers' Compensation Appeal Board (WCAB) affirmed the award of benefits but reversed the finding that Mr. Zwick was not a statutory employer since the rehabilitation of properties was a regular part of his business. This case serves as a reminder of the importance of obtaining Certificates of Insurance and a lesson for business owners, that they may be operating a business other than their primary intended one.