Articles | Cases

Legal Corner


ADA
Accommodation request to be exempt from OSHA "clean-shaven" regulation denied

In Bey v. City of New York, the U.S. Court of Appeals for the Second Circuit reversed a judge's decision and found that the Fire Department of New York (FDNY) could not be held liable for adhering to a binding OSHA safety regulation that required firefighters to be clean-shaven in areas where a respirator would fit their faces. Four firefighters alleged they had a skin condition called pseudofolliculitis barbae or "PFB" that causes pain and scarring when shaving facial hair.

The court found an accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency. Any challenge to the binding regulation, the judges said, should be directed at the agency, not their employer.



Many lessons for employers in $125M verdict against Walmart

A Green Bay, Wisconsin jury returned a $125.2 million verdict against Walmart Inc. in a disability discrimination case involving a long-time employee with Down Syndrome. The employee had worked for Walmart for sixteen years and consistently received positive reviews. After instituting a computer-based scheduling program, Walmart made a change in the employee's schedule that impacted her regular routine and her ability to get to work. When she requested her start and end times be returned to her prior schedule, Walmart did not act on her request and, ultimately, she was fired.

The company compounded its mistake when it refused to consider a request for accommodation made by her sister (and guardian) because it was made after the company had terminated her. The court noted when a company terminates an employee because it is unable to grant the employee's request for accommodation, it should explore all available options. Further, in the interactive process, the employer must be sensitive when dealing with a request from an employee who has difficulty expressing themselves and/or communicating effectively.



Workers' Compensation
Cap on temporary benefits for mental injury doesn't apply to worker not being paid impairment benefits - Florida

In Jones v. State of Florida, a Department of Corrections worker was attacked by an inmate and reached maximum medical improvement about two weeks later and received a 0% permanent impairment rating. She was referred for psychiatric treatment and diagnosed with acute stress and PTSD and was placed on a no-work status.

Since the statute provides that temporary benefits for a compensable mental injury shall be paid for no more than six months after the date of MMI for the employee's physical injury, the state stopped paying indemnity benefits at that date.The Court of Appeal for the 1st District found that the statutory limit did not apply to the worker because her mental injury arose within six months of reaching the physical MMI and she was no longer receiving impairment benefits for the physical injury.



Loaning and borrowing employer immune from tort liability - Illinois

In Torrijos v. International Paper Co., a Manpower temporary worker completed an interview and employment application at International Paper (IPC) and was assigned by Manpower to work at the Aurora plant. Less than two weeks later, she sustained serious injuries when her hand was pulled into a flexo-folder-glue machine. She claimed permanent disability and disfigurement of her hand and received workers' comp benefits.

Two years later, she filed a civil suit claiming IPC's negligence had caused or contributed to her injuries. She argued Manpower was a "loaning" employer but there was not an express or implied contract of hire between the employee and IPC, the alleged borrowing employer. The court found that IPC directed and controlled her work and noted a contract of hire with the borrowing employer may be implied in the context of employment by a temporary employment agency. Courts have repeatedly ruled that accepting an assignment from a temporary employment agency and awareness that they will work for the borrowing employer through the temporary employment agency amounts to implied consent to the borrowed-employee relationship.



Fall in icy parking lot unavoidable and compensable - Michigan

In Estate of Livings v. Sage's Investment Group LLC, an employee parked in the employer's lot, which was leased from Sage's Investment Group LLC. She described the lot as "a sheet of ice" and fell several times in trying to reach the back door, which was the designated entrance. She underwent three surgeries and ultimately sued Sage. Sages moved for summary judgment, noting the conditions were obvious hazards and she could have parked elsewhere.

The Supreme Court explained that when an injury occurs because of an open and obvious condition, landowners are not liable because they have no duty to protect against the hazards. However, when the hazard is effectively unavoidable, landlords can be held liable. So, the case turned on whether the condition was effectively unavoidable. In a divided decision, the Supreme Court ruled that an open and obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter her place of employment.



Court must be clear on employer's and insurer's obligations for accessible housing - Nebraska

In Allen Michael Lewis v. MBC Construction Co., Inc., and Carolina Casualty Ins., the Supreme Court ruled that the Workers' Compensation Court erred when it issued a decision that was unclear on what an employer and its insurer must do to provide a disabled worker an accessible home. The worker's leg was crushed by a paving machine and amputated above the knee. The Compensation Court ordered the employer to modify an existing home "or potentially build a unit," although evidence also showed alternate housing arrangements that could meet the accessibility needs. Further, it was unclear who would have to pay all the costs associated with it, including insurance and taxes.

The case was remanded to the Compensation Court.



"Gray area" rule makes injury in public area compensable - New York

In the Matter of Cadme v. FOJP Service Corp., a hospital food service worker was hit by a car near a loading dock entrance to the hospital. An appellate court ruled that the special "gray area" rule applied - injuries sustained in public areas near the employment, but not on the employer's premises, are compensable where the risks of street travel merge with the risks attendant with employment. The court noted that two factors must apply for compensability in this situation: the entrance food workers used to enter the workplace created a "special hazard" at the hospital and a close association of the access route with the premises. Since both applied, the worker's injuries were work-related.



Two cases rely on Slaugenhaupt test to prove compensability - Pennsylvania

Derived from a 1977 case, the Slaugenhaupt test is a three-factor inquiry: (1) the injury occurred on employer's premises; (2) the worker's presence was required by the nature of her employment; and (3) the injury was caused by the condition of the premises or by operation of the employer's business. It was cited in two recent cases.

In Stewart v. Workers Compensation Appeal Board, the Commonwealth Court reversed a Workers' Compensation Appeal Board's ruling that the worker's injuries did not occur in the course and scope of his employment. A janitor was assigned by his employer to clean a building occupied by Glaxo Smith Kline (GSK) and when he was exiting a shuttle bus operated by GSK, he fell and injured his foot and ankle. The employer denied benefits based on the going and coming rule and the Workers' Compensation Appeal Board's agreed. However, the Commonwealth Court found that the worker had already arrived at the front entrance of the building when he fell and was no longer commuting. The area where he fell was the reasonable ingress into the worksite and all three factors of the Slaugenhaupt test were met. Thus, the fall was compensable.

In Weaver v. Breinig (WCAB), the employer provided a parking permit for a public lot to its employee. The employee parked and walked the most direct route, which was an icy pathway. The employer argued that the first prong of the Slaugenhaupt test was not met - the site of the fall was not an integral part of the business. However, the court said the "employer's premises" is construed liberally to include any area that is integral to the employer's business operations, including any reasonable means of ingress to or egress from the workplace. Since there was no dispute that the area where the fall happened was a customary means of ingress and egress for employees, the injuries were compensable.



Worker can't revoke C & R agreement to add medical marijuana - Pennsylvania

In Lehigh Specialty Melting Inc. v. Workers Compensation Appeal Board, an injured worker signed a compromise and release (C & R) agreement in 2014 that specified the employer would pay medical expenses until it funded a Medicare Set Aside (MSA) arrangement. The employee refused to sign the MSA because it did not include medical marijuana, which became legal two years after the C & R agreement.

The Commonwealth Court overturned a Worker's Compensation Board's finding that the worker did not have to hold up his end of the agreement, noting the worker understood the terms of the agreement, had signed it, and did not have the right to refuse to cooperate now.



Firefighter's cancer claim timely ten years after retirement - Pennsylvania

In City of Johnstown v. Workers' Compensation Appeal Board, a firefighter filed a workers' comp claim for kidney cancer ten years after retiring. The city denied the claim, arguing it was not filed within 300 weeks of retirement as required by state law. However, the Workers' Compensation Appeals Board noted ambiguity in the law and said the correct section of state law called for a 600-week window to file a cancer claim and he had filed within 490 weeks.



Negligence is not willful breach of safety rule - Virginia

In Klockner Pentaplast of Am. v. Miller, an employee's left hand was crushed between the fork truck she was operating and a metal crate. The company contested the claim arguing she intentionally violated a known safety rule requiring her to keep a clear path while operating the fork truck. In her 17 years of employment, the employee had received repeated trainings and received a perfect score on her last recertification test. On the day of the accident, someone had put a few metal crates in the wrong place in the alley where she worked. She was able to successfully transport two pallets of material but was injured when moving the third.

The Commission noted that she had avoided the crates twice and believed she had a clear path to do her job. She may have misjudged the distances, but this was an act of negligence, not a willful breach of the rule. Upon appeal, the appellate court noted that negligence, even gross negligence, was inadequate to establish the defense.



Vinyl stair covering not a unique risk - Virginia

In Amaya-Hernandez v. NSR Solutions Inc., the Court of Appeals affirmed the Workers' Compensation Commission's decision to deny benefits to a custodian who required a right-shoulder replacement after she fell on the last step of stairs as she was removing trash. The stairs were concrete with a pink vinyl covering, which the worker argued created a "unique hazard." However, a workers' compensation commissioner and the appellate court disagreed, noting she did not present evidence that the vinyl made the stairs more slippery or hazardous than other staircases. Therefore, her injuries were not compensable.