Legal Corner

FMLA
Denial of FMLA benefits is not required to demonstrate an FMLA interference violation

In Ziccarelli v. Dart, the Seventh Circuit Court of Appeals recently held that an employer can violate the FMLA, without actually denying a leave request, by discouraging an employee from exercising his or her rights under the FMLA. A corrections officer who had exhausted much of his FMLA leave, asked the employer if he could use the remaining leave coupled with other leave benefits to attend an 8-week program recommended by his doctor to help manage his work-related PTSD. The employee alleged the leave manager said he would be disciplined if he took more FMLA; the manager said she told him he would be disciplined if he took more leave than he had available. The officer retired and sued, and the court found he had a plausible interference claim that needed to be decided by a jury.

The ruling serves as a warning to employers about the importance of documenting communication with employees seeking FMLA leave.

Workers Compensation
High court will hear case on employer liability for COVID infections of family members - California

The state Supreme Court has agreed to hear Kuciemba v. Victory Woodworks and decide whether employers can be held liable when their workers contract COVID-19 on the job and spread it to their relatives. The 9th Circuit asked the Supreme Court to take the case and the Supreme Court will decide the legal issues, leaving the 9th Circuit to apply its ruling. The question the court will address is whether and how the derivative injury doctrine applies to tort claims when family members or others catch COVID-19 from someone who got sick at work.

Heart-Lung presumption denied to correctional officer who transitioned from part-time to full-time - Florida

In Sargent v. Bradford County Sheriff's Office, a divided opinion from the 1st District Court of Appeal affirmed that a correctional officer could not invoke the heart-lung presumption because he didn't undergo a second physical examination when he transitioned from part-time to full-time employment. To benefit from the heart-lung statute, an officer must pass a physical examination and show no evidence of tuberculosis, heart disease, or hypertension. The officer had passed the exam when he was hired as a part-time officer and was not required to undergo a physical examination when he went full-time. While it was the Sheriff Office's policy not to administer a new physical examination when employees were promoted, the court found because no physical examination took place when he became full-time, he was ineligible for the statutory presumption.

Employee receives comp for auto accident after leaving work early - New Hampshire

While typically injuries incurred when traveling home after work are not compensable under the coming and going rule, there are some exceptions. In the Appeal of Elba Hawes, a tree company employee was told to leave work at noon because of an impending storm and return at 8:00 pm for cleanup. He was severely injured in an auto accident on his way home. While initially he was denied comp benefits, the case made its way to the state Supreme Court, which determined his injuries were compensable under the special errand exception, as his journey home occurred at noon at the direction of his employer instead of at the end of his regular shift. Moreover, his day's work was not finished.

Company must pay death benefits to wife of employee who died from COVID - Pennsylvania

A Philadelphia workers' compensation judge has found First Transit Inc, an airport shuttle company, liable to pay benefits to the widow of a driver who contracted and died from COVID-19 in April 2020. The widow will receive one-half of her husband's compensation rate, plus 10% statutory interest, and $4,643.70 in litigation costs.

The wife testified her husband had worked for the company for six or seven months before his death, was not a smoker, and had no significant medical history that could compound the danger of the virus. The doctor for the company noted his wife and another family member living with them both worked at a skilled nursing facility and it was difficult to pinpoint exactly when he was exposed to the virus.

In her decision, the judge accepted the opinion of the doctor who testified for the wife over the doctor testifying for First Transit, noting that the latter practiced in Charleston, South Carolina, not Philadelphia.

TVA contractor not immune from lawsuits by coal-ash cleanup workers - Tennessee

In Adkisson v. Jacobs Engineering Group Inc., TVA entered into a contract with Jacobs Engineering Group Inc. to provide professional services related to a massive 2008 coal-ash spill. Several lawsuits were filed by Jacob's employees and their families alleging they were exposed to coal ash during the cleanup. The suits allege the company denied them personal protective equipment and otherwise ignored its TVA-approved safety protocols.

The company argued it was entitled to derivative immunity as a corollary of the discretionary function exception to the Federal Tort Claims Act. However, the 6th U.S. Circuit Court of Appeals found that U.S. Supreme Court limited the scope of the TVA's immunity in another case in 2019; and under the new test, "we conclude that the TVA would not have been immune." Therefore, status as a TVA contractor did not make Jacobs immune from the workers' consolidated lawsuits, which seek $50 million in compensatory damages and another $3 billion in punitive damages.