Legal Corner

ADA
Reassignment is last resort alternative for accommodation

The 4th U.S. Circuit Court of Appeals revived a police officer's Americans with Disabilities Act (ADA) claim that the city of Newport News, Va., did not reasonably accommodate him when it reassigned him to a civilian position after his duty belt caused him chronic injuries. The police officer developed permanent nerve damage called meralgia paresthetica from wearing the duty belt and he was reassigned as a property crimes detective and wore a shoulder holster.

The department changed its rules, requiring wearing the standard-issue duty belt and he was put on a light-duty assignment. When the allotted time for light-duty ended he proposed he be allowed to wear his equipment on a shelter or vest holster or that he be exempt from performing patrol duties and from wearing the standard uniform. However, he was offered a civilian job as a logistics manager for the police department, then resigned and filed suit.

While in Wirtes v. City of Newport News, the district court found that reassignment was an offer of accommodation, upon appeal, the 4th Circuit disagreed and found that reassignment is a last-resort alternative and ordered the district court to consider whether any alternatives to reassignment would have been reasonable.

Takeaway: Unless both sides agree to reassignment, courts favor accommodations that enable an employee with a disability to perform the essential functions of the job.

FMLA
Can a worker be fired for quarantining after testing positive for COVID-19?

A residential counselor who worked at a facility in Langhorne, PA, which provides healthcare services for children and adults with disabilities, was directly exposed to six patients who tested positive for COVID-19. A few days later, he tested positive and was told to quarantine for 14 days, although he was asymptomatic. When after seven days, the Director told him he had been cleared to return and if he did not report to work he would be treated as a "call-out", the employee noted he still needed to quarantine. When he did not return on the 8th day, he was fired.

In Payne v. Woods Services Medical Practice Group, the employer argued that the counselor failed to request FMLA leave and didn't have a serious health condition requiring FMLA leave. The court refused to dismiss the FMLA claim, noting that the employee alleged a request for leave and that the facility did not provide an explanation or allow a chance to correct deficiencies in the request.

In the FMLA Insights blog, Jeff Novak offers this advice to employers. "If an employee tests positive for COVID-19 - and even if they are asymptomatic - you should recognize this situation as a potential need for FMLA leave. It doesn't mean the leave of absence is FMLA leave. Ultimately, the medical certification you obtain from the employee will guide you as to whether you should designate as FMLA leave."

"When the employee tests positive and must quarantine, even if asymptomatic, send the Notice of Eligibility and medical certification to be completed by the health care provider. If the employee returns a complete and sufficient medical certification advising of the need for leave from work for the quarantine period, it seems to me that the doctor's directive along with CDC Guidance (requiring the requisite quarantine period) provide the necessary basis to designate the absence as FMLA leave."

Workers' Compensation
Injunction preventing enforcement of AB-5 against motor carriers overturned - California

An injunction that relieved the trucking industry from AB-5, the state's law governing the use of independent contractors, was overturned by a three-judge panel in the U.S. Court of Appeals for the 9th Circuit, in California Trucking Ass'n v. Bonta. The primary issue in the case is whether a federal law, the Federal Aviation Administration Authorization Act (F4A), which dates back to the '90s, preempted the implementation of AB-5 in the state. In a 2 to 1 vote, the majority held that because AB-5 is a generally applicable labor law that affects a motor carrier's relationship with its workforce and does not bind, compel, or otherwise freeze into place the prices, routes, or services of motor carriers, it is not preempted by the F4A.

Some experts believe the full Ninth Circuit may take the case en banc or that the case may find its way to the US Supreme Court.

Violation of rules does not nix benefits - California

In Abraham Alex v All Nation Security Services Inc., when a homeless person was behaving aggressively in the lobby of the Greyhound bus station, a security guard asked him to leave, but the homeless person cursed and hit him in the left temple with a fist. The guard fell outside the lobby and suffered a traumatic brain injury with evidence of intracranial hemorrhage for which he underwent surgery. The company denied the workers' comp claim, noting its specific rules on handling aggressive behavior by disturbed persons were violated and the injury occurred outside of the station.

The court disagreed, noting the employee was in the middle of his workday, on the work premises, performing the duties he was hired to perform. Furthermore, it is well established that "[w]here an employee is in the performance of the duties of his employer, the fact that the injury was sustained while performing the duty in an unauthorized manner or in violation of instructions or rules of his employer does not make the injury one incurred outside the scope of employment."

Court nixes penalties and attorney fees despite employer's admission of accident - Nebraska

In Boring v. Zoetis LLC, the Supreme Court ruled that an injured worker was not entitled to penalties for delayed payment and attorney fees after the employer admitted he had suffered an accident and injury. Initially, the employer contested the claim, but during discovery admitted the employee sustained a work-related accident and injury; however, the parties signed a stipulation agreeing to litigate the existence of a compensable injury.

The Workers' Compensation Court (WCC) reviewed extensive evidence and concluded the employee had suffered a compensable right shoulder injury. It also found the admission of the accident and injury entitled the employee to penalties and attorney fees.

The Court of Appeals disagreed, and the Supreme Court concurred, noting case law has long held that the waiting-time penalty and attorney fees are available only "where there is no reasonable controversy regarding an employee's claim for workers' compensation." Although the employer had admitted the injury, it denied the nature and extent of Boring's injuries. The evidence needed to be examined as to whether there was a reasonable controversy.

Employee who failed to disclose new job should not be barred from future benefits - New York

In Young v. Acranom Masonry Inc., a forklift operator was receiving TTD benefits for work-related injuries. About 11 months after the injury he took another job but continued to collect benefits. The insurance carrier obtained video evidence and a WCLJ ruled, and the Workers' Compensation Board concurred, that the employee engaged in fraud by failing to disclose that he had returned to work and imposed a mandatory penalty for a specified period, as well as a discretionary penalty of a lifetime bar of indemnity benefit.

An appellate court, however, found because of extenuating circumstances, the permanent ban was too harsh. The court noted that he was forthright in his testimony that he returned to work, there was no evidence he had been told to report his work activities, and he had filed a request in April 2019 for further action citing his dire financial situation. Also, the medical evidence indicated he suffered from a mild to moderate disability and that he had received an epidural block just before the video surveillance, alleviating about 80% of his back pain.

Tow truck operator was employee, not an independent contractor - Pennsylvania

In Berkebile Towing & Recovery v. Workers' Comp. Appeal Bd. (Harr), the Commonwealth Court affirmed a decision by the Workers' Compensation Board and a WCJ that the towing company was liable for the payment of death benefits to the family of a tow truck driver because he was an employee and not an independent contractor. While there were some factors favoring contractor status such as the drivers' ability to decline jobs, payment by the job rather than by time, an independent contractor agreement, and the drivers' responsibility for income taxes, the court observed that the company set the rates and collection of payment for towing jobs, prominently displayed its name and phone number on trucks, owned the tow trucks, paid most of the expenses related to their use, and prohibited the drivers from using the trucks to tow vehicles for the company's competitors. There were no formal lease or rental agreements for the trucks.

While the courts acknowledged that the employee had signed the independent contractor agreement, they found it was a mere pretext for the company to avoid the obligations of an employment relationship and that control of the work and how the work was accomplished were the key factors in the analysis of an employment relationship.

Employee cannot sue insurer for failed suicide attempt - Wisconsin

In a divided decision, the Supreme Court affirmed a finding by the Court of Appeals that exclusive remedy barred a civil action filed by an injured employee against his employer's workers' compensation insurer. In Graef v. Continental Indem. Co., the employee alleged that his self-inflicted gunshot wound was the result of the insurer's negligence because it had stopped paying for the employee's antidepressant medication. The majority of the Supreme Court held that the gunshot wound naturally flowed from a covered workplace injury, and, therefore, there could be no recovery in tort.