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ADA
Georgia company pays $250,000 to settle EEOC suit for firing depressed worker

Georgia-based Ranew's Management Co. Inc., a national fabrication, coating and assembly products provider, allowed a severely depressed worker to take time off to get well. When he returned six weeks later with a doctor's release, the EEOC said the CEO could not trust the employee to perform his job duties and fired him. Under the consent decree, the employer agreed to pay $250,000 to the employee and to report, monitor, train, create and distribute ADA policies and post notices.



Case to continue teleworking can proceed

In Gentile v. County of Dupage, a federal judge ruled against the Illinois county's efforts to dismiss a disability leave lawsuit filed by a Weatherization Program Assessor who was immunocompromised and wanted to continue working from home for fear of contracting COVID-19. The judge ruled that some issues on accommodation existed under the ADA and FMLA for the case to proceed but did not meet the criteria for a retaliation claim under Illinois law.



Nurse's ADA claim related to firing while isolating with COVID can proceed

While this case involving a Rehab and Healthcare facility in eastern Alabama is in its early stages, it does suggest that courts may be liberal in advancing ADA claims for virus-related conditions. The employer argued that COVID-19 was a " transitory and minor" impairment and, therefore, it did perceive the nurse to be disabled. Acknowledging that the condition may be transitory, the court noted the nurse reported she was suffering from severe symptoms and demonstrated her impairments were not minor.

Employers should be proactive in training managers and supervisors and develop COVID-specific medical inquiry forms.



Worker's Compensation
Federal cases to watch: medical marijuana reimbursement, vaccine mandates



Supreme Court makes it easier to bring whistleblower cases - California

In Lawson v. PPG Architectural Finishes, Inc., the state Supreme Court addressed how an employee can sufficiently prove discrimination to prevail in a whistleblower claim. In the past, some courts have applied the employer-friendly McDonnell Douglas three-prong test and others have applied the more employee-friendly test contained in section 1102.6 of the Act itself. The Supreme Court ruled that court judges should use the evidentiary standard that arises from the Whistleblower Act itself and not from the employer-friendly McDonnell Douglas case. While the particulars of this case did not relate to workers compensation, it has implications for employers and all whistleblower cases.

Under section 1102.6, employees need only show by a "preponderance of the evidence" that retaliation was "a contributing factor" in the employer's decision to take an adverse employment action, such as a termination or some other form of discipline. However, the employer must show by the higher standard of "clear and convincing evidence" that it would have taken the same action even if the employee had not blown the whistle.



Fall for unknown reason compensable - Florida

In Soya v. Health First Inc., a massage therapist fell for an unknown reason when she was leaving work. After the company hired an engineer to inspect the flooring and found no anomalies a Judge of Compensation Claims denied benefits, noting that her employment did not put her at greater risk of injury. The appeals court reversed and remanded, noting that the "increased hazard analysis" only applies when there is a known cause. The court noted that the law provides "compensation shall be payable irrespective of fault as a cause for the injury." Further, clumsiness is covered.



Injury after foot falls asleep not compensable - Florida

A teacher who fell after his foot became numb while sitting at his desk cannot collect workers comp benefits. In Steven Silberberg v. Palm Beach County School Board and York Risk Services Group, an appellate court ruled that the injury did not "arise out of his work," because sitting at the desk didn't cause the fall, he did not strike equipment or furniture when he fell, and he was not pushed nor did he trip before the fall.



Court clarifies Workers Compensation doesn't preempt BIPA - Illinois

Illinois has one of the most stringent statutes that protect biometric data, the Biometric Information Privacy Act (BIPA), which requires employers to meet burdensome requirements, including obtaining written consent and posting policies on websites when collecting or maintaining fingerprints, retinal or iris scans, voiceprints, hand scans, or face geometry.

In McDonald v. Symphony Bronzeville Park, the employer argued that the employee's claims of violating the law arose during the course of her employment and, therefore, were barred by the exclusive remedy of workers' comp.

The case, which was pending for over a year, asked the state Supreme Court to determine "Do the exclusivity provisions of the Illinois Worker's Compensation Act (IWCA) bar a claim for statutory damages under BIPA where an employer is alleged to have violated an employee's statutory privacy rights under BIPA?" On February 3, the Court held unequivocally that an alleged BIPA "injury" is not one that "categorically fits within the purview of the IWCA." The decision reinforces the need for employers to be proactive in ensuring compliance with all aspects of the BIPA.

A bill is before the state legislature that would address this decision.



Injury risk must be greater than in non-work life to receive benefits - Missouri

In Overstreet v. TAMKO Building Products Inc., an asphalt plant operator injured his knee when he realized he had forgotten his key card and quickly changed directions. He was diagnosed with patellofemoral pain syndrome in both knees, plus a left knee medial meniscus tear. An Appeals Court affirmed lower decisions that the injury was not compensable because his risk source, walking on asphalt and changing directions, was one he was exposed equally to outside of the job.



State high court clarifies calculation of AWW - North Carolina

In Nay v. Cornerstone Staffing Solutions, a temporary staffing employee contested the method used to calculate his average weekly wage (AWW).The state Supreme Court ruled that the calculation of average weekly wage (AWW) is a question of law subject to de novo review. Further, the issue of whether the method used produces results that are "fair and just" is a question of fact subject to the "any competent evidence" standard of review "in the absence of a showing that the commission's determination lacked sufficient evidentiary support or rested upon a misapplication of the relevant legal principles."

There are five methods that can be used to calculate AWW. The Industrial Commission elected to divide the wages earned over roughly 13 weeks by 52 weeks resulting in a relatively minimal average weekly wage. The Court of Appeals reversed the decision of the Industrial Commission and calculated the AWW by dividing the wages earned by the weeks worked.

The Supreme Court ruled that the Appeals court should have reviewed the Commission's decision using the applicable standard, but it seemed as though it had made its own factual determinations. The majority noted, "We further hold that the findings and conclusions that the Commission made in support of its average weekly wages determination in this case appear to rest upon a misapplication of the applicable legal standard." As a result, we modify and affirm the Court of Appeals' decision and remand this case to the Commission for further proceedings not inconsistent with this opinion..."



Mass shooting injury did not arise from employment - New York

In Timperio v. Bronx-Lebanon Hospital, an appellate court overruled the Workers' Compensation Board and found that the injuries incurred by a resident when he was shot by a disgruntled employee did not arise from employment and a federal civil suit, asserting negligence, negligent infliction of emotional distress and negligent hiring, retention, training, and supervision, can proceed.

The Appellate Division's 3rd Department found that the perpetrator was a former employee who had not worked at the hospital for over two years, never worked with the resident who was injured, and there were no work-related differences between them. While a statutory presumption exists that an assault arising in the course of employment is deemed to have arisen out of employment, the evidence sufficiently rebutted this presumption.



Light duty worker laid off due to pandemic not entitled to benefits - New York

In Coll v. Cross Country Constr., following an injury a worker returned to light duty at a different company but was laid off when cutbacks were made related to the COVID-19 pandemic. An appellate court ruled that he was not entitled to reduced earning benefits because his unemployment was not related to work injury, but he could collect unemployment insurance benefits, if eligible.



Employer's right to subrogation is absolute - Pennsylvania

In Kamp v. Green Acres Contr. Co an employee sustained a work-related injury when he was struck by a motor vehicle while performing road work. The third-party tortfeasor responsible for the accident held two insurance policies with a combined $150,000 liability limit, which were put into escrow for a determination of the employer's subrogation lien. The injured worker argued that Section 319 of the statute worked "too well," that it granted the employer an "unfettered" right to recover against a third-party settlement, regardless of the relationship between the damages awarded and the benefits paid by an employer under the Act.

Noting that courts had repeatedly held as absolute an employer's right to subrogation under Section 319 and a compelling argument for overturning this jurisprudence was not presented, the Commonwealth Court disagreed. The unanimous opinion affirmed the absolute right of employers to subrogation against any damages recovered against a third party for the injury giving rise to the workers compensation claim.