Legal Corner

ADA
Employer's denial of remote work during pandemic leads to $65,000 settlement

Total Systems Services, LLC, a global payments processing company based in Columbus, Georgia, will pay $65,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). A customer service representative (CSR) with a disability who worked in a call center repeatedly requested remote work as a reasonable accommodation because of her COVID-19 high-risk status and the prevalence of COVID in the call center. According to the EEOC, the company based its denial on criteria that applied equally to all CSRs seeking to work remotely instead of engaging in an individualized assessment of the employee's disability-related needs, as required by the ADA.

Resignation and reapplication are not an accommodation under the ADA

Verizon Maryland, LLC, will pay $115,000 and furnish significant remedial relief to settle a discrimination suit for failure to accommodate a management employee who suffered from hypertension and requested a change to a field position or an alternate management position. The only accommodation offered was to resign and reapply in six months for a position that he had previously held. The consent decree prevents the company from offering resignation and reapplication as an accommodation.

Workers Compensation
Unclear information about drug test refusal form nixes employer's defense - Florida

In Parker v. Convergence Employee Leasing II, Inc., a patient care technician for an assisted living facility lost consciousness when a bed crank on a patient's bed malfunctioned and struck her on the head and she was taken to the hospital. Before being discharged from the hospital, she signed a form refusing to undergo a post-accident drug test but alleged she thought she was signing a refusal for further medical treatment or testing.

Under state law, if an injured worker refuses to submit to a drug test, it is presumed in the absence of clear and convincing evidence to the contrary that the injury was caused primarily by the influence of drugs and is not compensable. The OJCC found the technician believable and attributed her signing the refusal form to a lack of clear information from the employer.

Court makes it easier for employers to defeat whistleblower lawsuits - Florida

In Clint Shannon Gessner v. Southern Company and Gulf Power Company, a worker alleged he was fired for raising several safety-related concerns. The company argued that the worker failed to establish he refused to participate in an actual violation of law, rule, or regulation, rather than something he believed to be a violation. The First District Court of Appeal agreed. This decision aligns with the Second District's ruling in Kearns v. Farmer Acquisition Co., but conflicts with the Fourth District's decision in Aery v. Wallace Lincoln-Mercury, LLC.

Jury awards $12M to woman fired for refusing COVID vaccination - Michigan

In Lisa Domski v. Blue Cross Blue Shield of Michigan, a long-term employee who was a practicing Catholic was denied a religious exemption to the companywide vaccine mandate. According to the lawsuit, the company rejected 75 percent of all the religious accommodation requests, leading to termination of 250 employees. The company defended its actions by claiming the worker hadn't participated in a follow-up interview to discuss her exemption request, which they argued was necessary to evaluate her religious beliefs. She declined, saying she would instead rely on a written statement she had submitted.

The company may appeal the $12 million verdict.

Injury suffered to same body part 18 years after first injury could be considered substantial change in medical condition - Minnesota

In Lehet v. Roofers Advantage Program, a carpenter received continued benefits for treatment of an injury to his low back when he was struck by a 50,000-pound aerial lift arm. Almost 18 years after this injury, he again injured his lower back while carrying a slippery shaft and rocket. After several surgeries, he was restricted from work and began collecting SS Disability benefits. He also sought to vacate the original comp award, arguing it was a substantial change in medical condition.

While the employer and insurer argued that the need for more extensive medical treatment was unrelated to the original work injury, the court disagreed and ruled that this needed to be determined by the Office of Administrative Hearings to determine, "...whether the employee's condition is causally related to the [latter] work related injury in order to obtain a full and fair resolution of the petition to vacate the [original] award."

Different rulings on COVID-19 death benefits - New York

In Flores v. Wellwood Cemetery Assoc. Inc., et al., a gravedigger died of cardiopulmonary arrest following a COVID-19 infection, and his wife sought death benefits, which the employer denied. The appeals court agreed with the WCJ and WCB and ordered the employer's insurer to pay benefits, finding the worker contracted the virus during the course of employment. The worker was not provided personal protective equipment, and a coworker had tested positive for the virus just before the worker became ill.

In a different case, Rottkamp v. New York Univ., the WCB and appeals court ruled that the death of a refrigerator engineer working at New York University was not compensable because there was not enough proof of a specific contact or working in a job with a prevalence of the illness. The worker contracted COVID-19 and returned to work when he tested negative. A day later he died. The attending physician classified the death as a cardiac death, but the death certificate indicated COVID-19 as the cause of death.

The bar for psychological injury compensation differs if causally related to physical injury - New York

In Lewis v. NYC Administration for Children Services, a social worker was knocked down by a family dog while conducting a home visit. She filed a comp claim alleging she was physically injured and psychologically traumatized by the incident, noting she had been bitten and physically scarred from a dog attack as a child. The WCB allowed the physical claim, but denied the psychological claim, noting that having a dog jump on you is not psychological stress greater than other social workers could experience.

On appeal, the Appellant Court said the WCB applied the wrong standard and erred in requiring a separate workplace accident comprised of work-related stress, since there was a physical injury. The court reversed and sent the case back to the Board, noting the WCB only had to consider if there was a causal relation between the accident and psychological injury.

Agency liens not automatically reimbursable - Pennsylvania

In Dura-Bond Coating, Inc. v. R. Marshall & PI&I Motor Express (WCAB), a worker suffered a catastrophic work injury and had his two legs amputated. Since there was a legal issue as to what entity was his employer, the Department of Human Services (DHS) paid the medical bills. Once a decision was made, the insurance carrier repaid the lien to DHS.

However, the treating healthcare providers continued to submit the bills to DHS and DHS continued to pay them, some of which were not related to the comp claim. DHS sought payment of the lien, but the insurance carrier refused, noting there were no bills submitted to them as required under the statute. Although the WCAB found that the insurance carrier was responsible for payment of the DHS lien, an appellate court disagreed ruling that the bills must be submitted to the insurance carrier. The court reversed and remanded, suggesting the parties work together to get the billing reports and related medical records.

Hospital worker denied comp for COVID-19 complications - Tennessee

In Lella Graham v. CHI Memorial Healthcare System, et. al., a manager at a hospital system suffered pulmonary complications from a COVID-19 infection and sought comp benefits. She argued her regular contact with coworkers and patients infected with COVID-19 caused her infection. The Workers' Compensation Appeals Board disagreed and after medical testimony concluded that the risk of COVID-19, "is the same as anyone else interacting on a day-to-day basis at work or outside of work." The appellant court agreed finding that, "...workplace exposures could not be identified with any degree of medical certainty as the primary cause of her pulmonary condition."