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Suspension of alcoholic employee does not violate ADAAA

A recent ruling of the U.S. Court of Appeals for the Second Circuit (Clifford v. Rockland County, 2d Cir., No. 12-3083), found that Rockland County, NY did not discriminate against an alcoholic worker by suspending her for being drunk at work and ordering her to remain alcohol- and drug-free for one year.

After serving her suspension, the employee signed a return-to-work agreement that required her to submit to random drug and alcohol tests for one year upon her return. Later, she was injured and unable to work and sued the county alleging it failed to make reasonable accommodations for her alcoholism, and that the discipline she received was discriminatory because it effectively prohibited her from ingesting alcohol while off duty, a condition not imposed on workers without an alcohol-related disability.

However, the court found that the county had accommodated her disability by granting time off for treatment over the years. It also affirmed that special conditions imposed on employees identified as substance abusers are not grounds for discrimination and retaliation claims under the Americans with Disabilities Act Amendments Act (ADAAA).

Working full-time an essential function of the job

The U.S. Court of Appeals for the Sixth Circuit recently concluded that an individual who requested that she be allowed to continue working part time did not request a reasonable accommodation under the ADA. In White v. Standard Insurance Co., the employer's case was strengthened by a well-drafted job description stating the position was full-time, the employer had never employed anyone in the employee's particular position on a part-time basis, and the plaintiff admitted during her deposition that she was unable to complete the job requirements in a four-hour shift and other employees had to work overtime to cover her work.

The plaintiff had a back injury in September 2007 and returned to work part-time in mid-December, but she had trouble maintaining the work schedule. As a result, the employer terminated her employment but held the position open until the end of March in case she could return to work.

The court concluded that a request to continue working part time was not a request for a reasonable accommodation under the ADA because the plaintiff was not able to perform the essential functions of the job while working part time and the employer was not required to create a new part time position.

Supreme Court's DOMA ruling affects FMLA

In ruling unconstitutional the Defense of Marriage Act (DOMA) provision denying recognition of the marital status to same-sex couples under federal law, the U.S. Supreme Court expanded the population entitled to leave under the federal Family and Medical Leave Act. Jackson Lewis, a firm specializing in workplace law offers guidance on administering FMLA leave in light of the ruling.

FMLA absences continue to rise; new report shows industries with most workers on leave

Family and Medical Leave Act (FMLA) absences are on the rise, and some sectors - call centers, hotels, government entities, manufacturers and health care organizations - far surpass others in terms of absenteeism rates, according to a new report by FMLASource®, Inc., a ComPsych® company.

From 2008 to 2012, FMLASource reports the following trends:

The full report (.pdf), also includes the impact of FMLA on absenteeism rates.

"Honest belief" doctrine dooms retaliation claim

In Hall vs. The Ohio Bell Telephone Company, the U.S. Sixth Circuit Court of Appeals relied on the employer's "honest belief" that the employee had engaged in fraudulent conduct and rejected the FMLA retaliation claim of an employee who had requested leave to attend the funeral of her granddaughter, when it was actually her step-granddaughter who had died. The collective bargaining agreement governing employment granted paid funeral leave for a grandchild but not a step-grandchild. When fraud is suspected, an employer must investigate thoroughly and identify those "particularized facts" on which it will rely before terminating an employee.

The employee claimed that she was terminated in retaliation for taking FMLA leave, noting that the employer's first investigation into her conduct occurred soon after her first FMLA request for an anxiety disorder. During that leave, the employee was quoted in a newspaper interview about publishing a book, raising suspicions if FMLA leave was used to write the book. Following the leave, she received several suspensions and written warnings regarding poor performance.

While the employee argued that the proximity of her first leave request and investigation and the heightened scrutiny of her was sufficient evidence of pretext, the court noted that "nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave."

Workers' Compensation
Suit over pornographic emails not barred by Worker's Comp exclusive remedy - California

After several failed attempts to have her firm address the issue, a legal secretary, who consistently received pornographic emails from an attorney at the law firm, filed a sexual harassment and intentional infliction of emotional distress suit. Although the Superior Court had found that complaints were not actionable because the emails did not establish a hostile work environment and that the exclusive remedy of Workers' Comp barred the intentional infliction of emotional distress as a cause of action, the Los Angeles-based 2nd District Court of Appeal disagreed.

In an unpublished decision regarding Jeri Elster v. Joel Fishman et al., the appeals court found a claim for sexual harassment based on an environment that was offensive, hostile and abusive. It also ruled that because the intentional infliction of emotional distress claim stems from sexual harassment, which is a risk not reasonably encompassed by Workers' Comp's exclusivity rule, the claim is not barred.

Employer not responsible for illness suffered by family member of asbestos worker - Maryland

Maryland's Court of Appeals has ruled that asbestos companies are not responsible for illnesses suffered by family members of asbestos workers who brought the substance home with them in their clothing prior to 1972.

The ruling overturned a $5 million verdict to a woman, who regularly did her grandfather's laundry in the late 1960s, including work clothes caked with asbestos, and who was diagnosed with malignant mesothelioma in 2006.

The court ruled that that the take home exposure dangers were not known in the 1960s, so Georgia-Pacific Corp. was not obligated at that time to warn relatives about its dangers. OSHA issued regulations covering asbestos in 1972.

Truck driver's injuries not covered by No-Fault Act - Michigan

In Trueblood v. Ryder Truck Rental, Inc., a federal district court recently held that injuries sustained by a long haul truck driver when he fell while exiting the passenger door of a truck that his employer leased from Ryder Truck did not fall within Michigan's No-Fault Automobile Act. The court observed that for injuries sustained in the course of employment, the no-fault statute did not apply unless, among other things, the injury was sustained while entering into or alighting from the vehicle immediately after the vehicle became disabled. Moreover, the truck was not being used as a motor vehicle.

Since the no-fault act not apply, the subrogation provisions of the Michigan Workers' Compensation Disability Act did apply and the employer's Workers' Compensation carrier was entitled to a lien of approximately $75,000, after deducting the driver's expenses in creating the recovery fund.

Preexisting condition basis for denial of benefits - Nebraska

In Gills v. Nebraska Machine Prods., Inc., an employee contended he sustained a compensable shoulder injury while moving a 300-pound tub containing machine parts, a function the employee performed numerous times a day. The appellate court noted that the employee had a history of shoulder pain and had been diagnosed with a torn rotator cuff more than two years before he began his work. The Court observed that the employee could point to no intervening event causing his current condition and that the injury was caused by the natural progression of the preexisting condition and not by a risk created by the workplace. Therefore, no compensation is due.

Employee sustained psychic injury when told she owed tax on $100,000 of old travel reimbursements - New York

The shock of having to pay taxes and penalties on old travel expenses caused a "psychic injury" that triggered Workers' Compensation benefits, a New York appeals court ruled. A Comptroller's audit of her employer's reimbursement practices found that they violated IRS regulations and indicated she would be deemed to have earned an additional $100,000 in income-upon which she would owe taxes.

According to the court, the mental injuries did not stem from work-related stress, which does not qualify for benefits, but from "the serious financial liabilities incurred as a result of a review of the employer's reimbursement practices." Key to that was the finding that the employee had done nothing wrong. Brittain v New York State Ins. Dept

Undisclosed "light" work on residential renovation was not fraud - New York

Although the employee did not disclose that he was performing light errands and other work associated with the renovation of a residential structure that he owned to the state Board or the employer, a New York appellate court affirmed a determination by the state's Board that the employee had not violated New York's Workers' Compensation fraud statute. The court noted that surveillance videos offered by the employer did not contradict the employee's testimony. The court also observed that the employee still owned the property at the time of the hearing, that his son was living there, that the property was not listed for sale and that he had not decided whether he would sell the property.

Company's probation policy violates Workers' Compensation laws - New York

C&S Wholesale Grocers, of Keene, N.H., which supplies supermarket chains nationwide, "dissuaded" probationary workers from reporting injuries by firing them, an action contrary to the intent of state Workers' Compensation law, the Appellate Division in Albany ruled. The case involved an employee who reported an injury just a week shy of completing his 90-day probation and was fired. Like all new C&S workers, he had signed the "Trainee Attendance/Safety Policy," which contains a provision warning that any preventable injury sustained during probation would lead to dismissal. The company determined the employee caused the injury by not operating a jack safely.

The employee subsequently sought Workers' Compensation benefits and also filed a discrimination complaint against the company with the state Workers' Compensation Board, contending that he had been fired in retaliation for his benefits claim. An administrative law judge for the board agreed that the C&S probation policy violated Section 120 of Workers' Compensation law and the full Workers' Compensation Board affirmed the decision. Rodriguez v C&S Wholesale Grocers, Inc.

Time between injury and death of worker preclude death benefits - Pennsylvania

In Whitesell v. Workers' Compensation Appeal Board (WCAB), the injured worker suffered a back injury at work in 2003, which was described as a lumbar strain and sprain. In 2006, there was litigation in which the description of injury was amended to include "lumbar disc disruption L4-L5, resulting in total disc arthroplasty at L4-L5 level." The injured worker died in 2011, as a result of "mixed drug toxicity," from the medications she was taking for the work injury.

The Pennsylvania Workers' Compensation Act, states, in Section 301(c)(1), " . . . wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury." Since the death here did not take place within 300 weeks of the original injury, the Workers' Compensation Judge denied death benefits. This was affirmed by the WCAB and the Commonwealth Court of Pennsylvania.

Self-procured surgery compensable in light of aborted surgery by panel physician - Tennessee

In an unpublished decision, the Supreme Court of Tennessee (Workers' Compensation Appeals Panel) modified a trial court's decision denying an employee's request for payment of medical expenses associated with a second round of surgery on the basis that the neurosurgeon was not listed on the employer's panel of medical providers. Initially, the employee sought treatment from a surgeon listed on the employer's panel, but the surgery was aborted because the nerve block anesthesia was mistakenly injected in the wrong area, causing paralysis. The employee was unable to breathe, lost consciousness, and was intubated and placed on a ventilator. Following the aborted shoulder surgery, the employee suffered from a number of medical issues and sought treatment from another neurosurgeon who the employee later learned was not on the employer panel list.

The employee chose to proceed with recommended surgery over the employer's objection. The surgery was successful and a second surgery was performed three months later to alleviate additional symptoms. The trial court ordered payment of the expenses related to the first, but not the second surgery. The appellate court indicated that whereas the aborted surgery by the panel surgeon had turned out badly, the self-procured neurosurgeon had been successful. Having gained relief under the neurosurgeon, the employee naturally preferred to remain under his care. Once the employee had justifiably engaged the neurosurgeon, the subsequent efforts by the employer to arrange for a different physician did not preclude the employee from continuing under his care. Arnett v. McMinn County Government