Legal Corner

ADA
Contracting COVID-19 not a disability; but complications and long COVID may be

A Sept. 9 notice on the EEOC website notes that the EEOC recognizes that "long COVID" may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances and indicates technical assistance will be issued soon.

In a case earlier this year, Champion v. Mannington Mills Inc., the U.S. District Court for the Middle District of Georgia ruled that contracting COVID-19 or being in contact with a COVID-19-infected person does not alone trigger the protections of the Americans with Disabilities Act (ADA). The case involved siblings who worked at the same facility when one tested positive. Before her shift, the sister denied having any contact with her brother, but her supervisor determined that was not true. She was sent home and days later terminated for dishonesty.

The ADA's association provision prohibits employers from discriminating against employees and job applicants based on their relationship or association with a person who has a disability, regardless of whether the employee or applicant has a disability, so the case revolved around whether her brother's COVID-19 infection substantially limited his ability to work.The court found that being sent home from work due to COVID-19 did not qualify as a substantial limitation of the major life activity of working.

Case to watch: EEOC files first pandemic-related remote work bias lawsuit

EEOC v. ISS Facility Services, Inc., which was filed in a federal court in Georgia, involves a former health and safety manager who in March 2020 requested an accommodation to work from home two days a week as an accommodation for her chronic obstructive lung disease and hypertension. Shortly after making the request, the company put staff on a modified 4-day work from home schedule. In June 2020, it required all workers to return to the office full time and the manager renewed her request.

The request was denied and a few months later she was terminated for performance issues, although the EEOC alleges that she had not been advised that her performance was grounds for termination. The argument by the EEOC is that the remote working arrangements during the COVID-19 pandemic is evidence that the employee should have been permitted to continue to accomplish the essential functions of their employment in a remote capacity.

Takeaway: Given the success of remote work during the pandemic, it is expected that requests for remote work as an accommodation will be scrutinized, particularly if the employee worked remotely or if others are allowed to continue to work remotely. Employers that determine continued remote work will create an undue burden, should develop a robust argument.

Workers' Compensation
Is workers' comp the exclusive remedy for derivative injury COVID-19 claims? - California

See's Candies Inc. v. Superior Court of Los Angeles has attracted national attention and amicus briefs from employer groups as many fear it could undermine the principle of exclusive remedy. An employee of See's Candies contracted COVID-19 at work and apparently infected her husband who died. The employee and her daughter sued, arguing the company is liable for his death because it lacked sufficient safeguards against the virus.

A Superior Court judge agreed that her husband's death was a separate event from her workplace infection and the case is now before the Appellate Court. The U.S. Chamber filed a brief arguing the derivative injury rule, the theory that work comp exclusivity applies to all injuries collateral to or derivative of a compensable injury, pertains. Otherwise, this could open the door to a wide swath of COVID-19 claims.

Privette doctrine affirmed again - California

In Sandoval v Qualcomm, the Supreme Court reversed a multi-million-dollar jury verdict against Qualcomm. In this case, the employee of an independent contractor claimed that Qualcomm, the hirer, and landowner, had tort liability for the catastrophic burn injuries he sustained during an inspection of Qualcomm's electrical circuitry. The worker was holding a metal tape measure which triggered an arc flash from the live, exposed circuit and he suffered serious injury.

However, the high court said there was no dispute that Qualcomm was protected from liability by the Privette doctrine, which presumes a hiring party delegates control over workplace safety and can't be sued for injuries suffered by a contractor's workers. While the worker argued Qualcomm controlled the power down process, the Court noted the injuries occurred later after the company had turned over control of the worksite. It also said the instructions to the jury did not adequately explain the exceptions to the doctrine.

Officer denied presumption for hypertension - Florida

In Joshua Holcombe v. City of Naples, an officer replied affirmatively to a question regarding any history of high blood pressure on his job application. As a teenager, he had a liver transplant and developed secondary hypertension as a side effect of the medications. However, this resolved after he stopped taking medication and before he was hired by the city. After several years of employment, he developed essential hypertension and filed a workers' comp claim. He was denied because evidence of pre-existing hypertension precluded his reliance on the presumption.

Travel time and distance to designated physician unreasonable, but employer retains control of selection - Florida

In Harman v. Merch. Transp, while a judge agreed with the injured employee that both the first and second designated treating physicians were too far away, he ruled the choice remained with the employer. The employee only submitted one alternative physician, who did not take workers' comp.

Last act necessary to form a contract of hire determines state of employment - Illinois

In an unpublished decision, Industrial Contractors Skanska v. Illinois Workers' Comp. Comm'n, an appellate court reversed a decision of a county circuit court confirming an award of workers' compensation benefits by the state's Workers' Compensation Commission because the injured worker's injury occurred in Indiana. An apprentice electrician, a resident of Illinois, was assigned by her union to an electrical contractor based in Indiana. When she reported to the jobsite, she filled out paperwork and went through safety training. She did acknowledge that if the contractor did not want her, they could spin her at the gate.

While the Commission found that the employment contract arose at the time the electrician was given a referral to the job site, the appellate court disagreed. It noted the language in the labor agreement between the contractor and union specified the union was the exclusive referral agent for the contract, but the contractor retained the right to reject the worker. Therefore, the employer's decision to hire the referred union member is the last act necessary to form a contract for hire and this took place in Indiana.

Morbidly obese worker entitled to PPD - Missouri

In March v. Treasurer of State of Missouri-custodian of Second Injury Fund, a long-term worker received an award of permanent partial disability for pain in his upper extremities. Following treatment, several medical and vocational experts determined he suffered from many other co-morbidities, was morbidly obese, and "permanently and totally disabled." The Labor and Industrial Relations Commission denied permanent disability under the Second Injury Fund, but the Court of Appeals found this was "unsupported by any expert medical testimony" and it cannot substitute its opinion on the question of medical causation.

Flight attendant gets benefits for disease caused by chemicals in her work uniform - New York

In Valdez v. Delta Airlines Inc., a flight attendant was allergic to a chemical used in dyes and would suffer skin, respiratory, and other physical problems. Although there was no evidence the chemical was in the uniform, her condition worsened after she began wearing it and lessened when she wore a different uniform. Her occupational physician testified there was a causal link between her health problems and her exposure to the chemically treated textiles in the uniform.

A Workers' Compensation Law Judge ruled that she had suffered a work-related injury that resulted in contact dermatitis, reactive airway disease, and lymphadenopathy. The Workers' Compensation Board affirmed but modified it to an occupational disease and an appellate court agreed.