Legal Corner

ADA

A motion to settle a class-action lawsuit against Yale University's employee wellness program points out the risks of imposing more than minimal penalties for not participating. If approved, the lawsuit, Kwesell v. Yale University, will be resolved with Yale paying $1.29 million to be distributed among employees covered by the program. The program required some 6,000 union employees and their spouses to either participate in its employee wellness program or pay a weekly opt-out fee (approximately $25 a week). The program also required employees to receive medical screenings and share the results with Yale's health care providers.

The suit alleged that Yale violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

FMLA
Free resource of all 2021 FMLA decisions

Every year, the American Bar Association's (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. The report summarizes 2021 FMLA decisions in a user-friendly manner and is a great reference.

Protected leave is not an absolute right

In Anderson v. Nations Lending Corporation, the Seventh Circuit affirmed the District Court's finding that termination of employment based on discovery of the employee's performance issues while she is on protected leave under the FMLA does not constitute FMLA retaliation. Although the employee was discharged only four days after returning from FMLA, the employer had documented the employee's performance deficiencies before she went on FMLA leave. When an employee struggles with performance and would have been disciplined absent the need for leave, an employer can terminate with the proper documentation.

Workers Compensation
Exclusive remedy bars tort suit in death from COVID-19- federal

In Garcia Rodriguez v. Blaine Larsen Farms Inc., the federal District Court for the Northern District of Texas held that workers' compensation exclusive remedy barred a tort lawsuit brought against an employer by the family and estate of an employee who contracted COVID-19 at work and subsequently died of the illness. A temporary farm worker on an H-2A immigration visa entered into an agreement that required the employer to provide the employee with free housing, transportation, and other necessities including medical care.

The family alleged that the employer experienced rolling outbreaks of COVID and did not provide proper housing or medical care. It also alleged that the employee died while "working for the employer" and from "a workplace accident." The court reasoned that the employee's death was work-related and therefore concluded the claims were barred by exclusive remedy.

Note: NCCI has reported on 22 COVID-19-related cases in 11 states, and only one has allowed a tort lawsuit brought against an employer to continue - See's Candies, Inc. v. Superior Court of California for the County of Los Angeles, which is pending.

Injuries incurred while driving home from work in employer-provided vehicle not compensable - Florida

In Kelly Air Systems LLC v. Kohlun, an air conditioning service technician was provided a company vehicle, which could be, but was not required to be used for his exclusive personal use for travel to and from work. After clocking out by calling his supervisor and while traveling home from his final service call location, he was in an accident.

The court looked at the interplay between the coming and going statute and the traveling employee provisions. It concluded that the technician was not compensated for his travel, was not at work at the time of the accident, and was driving in the employer's vehicle available for his personal use to travel to and from work. Thus, the court held that the employee was not in a travel status, the going-and-coming provision applied, and the injuries were not compensable.

Airport worker injury on way to shuttle bus not compensable - Florida

In Aquino v. American Airlines, a baggage handler had clocked out and injured his right calf muscle as he stepped off a curb on his way to a parking-lot-shuttle bus stop. He underwent a magnetic resonance imaging scan and was referred to an orthopedist and filed a workers comp claim.

One exception to the coming and going rule in Florida is the "premises rule," which says that an injury sustained by an employee with fixed hours and place of work who is hurt while going to or coming from the job is in the course of employment if the injury occurred on the employer's premises. The employee argued that the employee parking lot where he was headed was part of the employer's premises. The court disagreed, noting the injury occurred on what was essentially a public sidewalk. To be compensable, the employer must exercise control of the area and the airline did not own, lease or maintain the public area.

Franchisees may be employees - Massachusetts

In a potentially far-reaching decision, the Supreme Judicial Court held that 7-Eleven franchisees may be employees of 7-Eleven under Massachusetts wage and hour law. In Dhananjay Patel v. 7-Eleven, Inc., the court held that the stringent, three-prong ABC independent contractor test applies to the franchise relationship. While 7-Eleven had argued the Franchise Rule required the franchisor to exercise control over its franchisees and prong A of the ABC test required a contractor to be free from control, the ABC test could not apply and was preempted by the conflicting federal regulation. The court disagreed, noting the Franchise Rule was merely a disclosure rule and did not conflict with state law and that the state Legislature did not exclude franchisees from the independent contractor law.

The court did not rule on whether the 7-Eleven franchisees are employees; that will be considered in the future. Franchisors should examine their agreements and follow the case carefully.

Construction company owner ordered to pay $158,524 in restitution - Massachusetts

The owner of a Peabody construction company who paid employees in cash and failed to report accurate payroll to his workers' compensation carrier was ordered to pay $158,524 in restitution, federal prosecutors in Massachusetts announced. Argyrios Mavros, 57, was also ordered to pay more than $1 million in outstanding taxes to the IRS and sentenced to 18 months in prison.

Employer's nondelegable duty to provide a safe place to work prevents civil action against supervisor and co-worker - Missouri

In Miller v. Bucy, an employee of Curbside Cart Master, which assembled and delivered trash and recycling cans, was killed when unsecured cans in the back of the truck knocked him from the truck unto the street. The supervisor had told him to ride in the back of the truck and not to secure the cans, even though the trailer gate was broken. The driver of the truck did not have a commercial license and was driving too fast. The guardian of the deceased's sister filed suit arguing that the supervisor and driver engaged in affirmative negligent acts that purposefully and dangerously caused or increased the risk of death.

The Court of Appeals ruled that the acts of the employees did not demonstrate the breach of any duty separate and apart from the employer's duty to provide a safe workplace. The employer has the sole duty to provide a safe workplace and the actions of its employees were reasonably foreseeable by the company.

Truck driver was independent contractor - Nebraska

In Cajiao v. Arga Transp., Inc., an appellate court upheld a lower court's ruling that a tractor-trailer driver was an independent contractor and not entitled to workers comp benefits when he was injured in a motor vehicle accident. The driver used a search and application process to find loads to haul, and the companies would provide the truck and the necessary equipment for the hauling jobs.

The court noted there were ten factors to consider when determining whether one performs services for another as an employee or as an independent contractor. The core issue is the extent of control that, by the agreement, the employer may exercise over the details of the work. The compensation court had found the company exercised control over the result of the work (delivery location and time), but not over the operation of the truck or the method in which deliveries were completed. The driver could take days off, select the route he traveled, and chose what loads to haul. Moreover, he received a 1099-MISC, was paid per mile, did not get paid if he did not work. Thus, he was an independent contractor.

Homeowner liable for contractor injuries - New York

In DeGraff v. Colontonio, a jury found that the homeowner directed and controlled the work of the contractor, and, therefore, could be liable, but that the contractor was the sole proximate cause of his injuries. The Appellate Court disagreed, noting that liability is absolute when the owner does not provide "adequate safety devices."

In this case, the lull provided by the owner was not an adequate safety device for the elevated work being performed. The contractor used the lull to create a platform for himself by stacking sheets of plywood on its fork. The unsecured plywood caused the fall. The court noted,"where an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense."

Lump-sum awards allowed even when future payments are unknown - North Carolina

In Blackwell v. North Carolina Department of Public Instruction, a teacher suffered multiple injuries while breaking up a fight and was found to be permanently and totally disabled and awarded weekly benefits. Sometime later she requested this be converted into a lump sum payment. The Commission ruled that a lump-sum award was not allowed when the number of future payments was not certain.

The Court of Appeals said the commission misapprehended the law and that lump-sum awards can be made even when the number of future installments is uncertain. The commission can use competent evidence, such as life expectancy to project future benefits and should discount the sum of expected future benefits when there is competent evidence available to set an appropriate discount rate.

Carrier cannot seek recovery or force worker to seek recovery to satisfy subrogation lien - Pennsylvania

In Loftus v. Decker, a bus driver sustained injuries in an auto accident and received workers comp benefits. In the settlement, the workers compensation insurance carrier retained its absolute right to statutory subrogation against any recovery from the auto accident. The carrier filed a praecipe for writ of summons, requesting that a lawsuit be initiated against the driver who caused the accident because the injured worker had refused a settlement offer and threatened not to pursue any recovery unless the carrier agreed to compromise its lien rights.

The court found that the carrier has the right to subrogation for any amounts received from a third party who caused the compensable work injury, but it does not have the right to pursue litigation against a third-party tortfeasor and obtain a judgment from which it can satisfy its subrogation lien.

Unusual radar beam case hinges on "identifiable incident" doctrine - Virginia

In Johnson v. General Dynamics Corp., a surviving spouse claimed that her husband, an electronic technician, died from a heart attack that was caused by his three-week exposure to radar beams at work. While conflicting medical testimony dominated the hearing, the decision turned on whether there was an "identifiable incident" or a sudden precipitating event linked to the injury. The court noted that the identifiable incident was three weeks of exposure, not a particular event linked to Johnson's injury and this failed as a matter of law. Virginia has one of the most restrictive cumulative trauma rules in the country.

Going and coming rule does not bar benefits for accident while driving to work in company car - West Virginia

In Kalkreuth Roofing & Sheet Metal Inc. v. Bailey, the company provided a foreman with a company vehicle that featured company signage. On his way to a worksite, he was rear-ended in a hit-and-run incident with a pickup. While a claims administrator denied the claim, the denial was reversed and affirmed by the state Supreme Court. The "going-and-coming rule" did not bar benefits because he was provided with a company vehicle to facilitate the company's business, which provides significant incidental benefits to the employer that are not common to ordinary public commuting trips.