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Burden of proof on employer to deny indefinite leave

It generally has been accepted that the ADA does not obligate employers to provide an indefinite leave of absence to employees. However, a recent decision by New York's highest state court, Romanello v. Intesa Sanpaolo, held that indefinite leave will be required unless the employer can show either: 1) that the employee could not, with reasonable accommodation, satisfy the essential functions of the job; or 2) that the accommodation would result in an undue hardship on the company. According to FMLA expert, Jeff Novak, there are a few things the employer could have done to strengthen their case:

While the case is unique to New York, it should serve as a wake-up call to employers that state law can exact more stringent requirements than the ADA.

Firing alcoholic employee for relapse does not violate ADA

Relying on precedent from the 6th and 8th Circuit Courts, the 3rd Circuit Court held that Conway Freight Inc. did not violate the ADA and other antidiscrimination laws when it fired an alcoholic employee who violated a return to work (RWA) agreement. The RWA violation occurred when the employee suffered a relapse after returning from a leave of absence to undergo rehabilitation for alcoholism. Noting that the RWA did not restrict the ability of individuals who suffer from alcoholism to work at Conway but prohibited any employee who is subject to it from consuming alcohol, the court acknowledged the employee was held to different standards than those who did not sign an RWA, but this stemmed from the terms of the RWA rather than disability discrimination. Ostrowski v. Con-way Freight

ADA does not protect disabled worker who did not request accommodation

In the case of Douglas J. Dinse v. Carlisle Foodservice Products Inc., the 10th U.S. Circuit Court of Appeals ruled that even if an employer is aware that an employee is disabled, the company cannot be held liable for disability discrimination after terminating him if the worker had not formally requested a reasonable accommodation. The employee who suffered from diabetes, a heart condition, spinal issues and a degenerative hip condition had fallen behind in his work and was given notice of possible termination if his performance did not improve. A few months later, he informed the company he would need surgery and requested a laptop computer to use at home during post-surgery recovery. He was terminated before the surgery and sued the company for violating the ADA. According to the court, an employer's duty to provide a reasonable accommodation, or to participate in an interactive process on the issue, is not triggered under the ADA until the employee requests it and no request was made. The request for the laptop was not related to his disability and his day-to-day work performance.

Workers' Compensation
Out-of-network medical records allowed in Workers' Comp cases - California

The California Supreme Court decision in Valdez v. Workers' Compensation Appeals Board/Warehouse Demo Services says that medical records from out of network providers are admissible as evidence in Workers' Comp cases even when an employer has a valid medical provider network (MPN) in place. Initially, the employee was treated by a doctor in her employer's medical provider network but was dissatisfied and was treated by another physician recommended by her attorney. The court ruled, "comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board."

Undocumented worker due Workers' Compensation benefits - Iowa

Consistent with rulings in many other states, Iowa's high court ruled that undocumented workers are entitled to Workers' Comp benefits and to deny benefits would encourage employers to hire undocumented workers. Staff Management and New Hampshire Insurance Co. v. Pascuala Jimenez

Reimbursement for attendant care by spouse allowed - North Carolina

In a divided decision, the Supreme Court of North Carolina recently held that the state's Industrial Commission may not bar family members from receiving compensation for attendant care services provided to an injured employee before obtaining approval for those services from the Commission pursuant to its Medical Fee Schedule as long as the services are medically reasonable and necessary. Noting that the statute was rewritten in 1994, the majority held that the matter was a legislative determination, not one to be made by the Commission without statutory authorization.

Massage therapy by LPN covered expense - Pennsylvania

The Commonwealth Court of Pennsylvania recently held the cost of massage therapy services provided by a licensed practical nurse that had been prescribed by claimant's treating physician must be paid by the employer or carrier since the LPN was a "health care provider" under the state's Workers' Compensation Act. While lower courts argued that massage therapy was not within the scope of an LPN's practice, the appeals court found the LPN to be a health care provider and the Employer failed to establish that massage therapy did not come under the duties of an LPN and failed to address the merits of the reasonableness and necessity of the treatment. Moran vs. Workers' Compensation Appeals Board

Trooper who killed woman in auto accident entitled to Workers' Comp for psychological injuries- Pennsylvania

A state trooper whose car struck and killed a mentally ill woman deserved Workers' Compensation benefits, the state Supreme Court ruled. The 28-year-old woman, dressed all in black, ran in front of his cruiser on Interstate 81. In spite of efforts to resuscitate her and protect her from on-coming vehicles, she died at the scene. When he tried to return to work, he was overcome with stress and anxiety and applied for Workers' Compensation for post-traumatic stress disorder. The case went through a series of appeals with the state police arguing this was not an "abnormal" working condition, given the nature of the profession. However, the Supreme Court held that it is not normal, even for a state trooper, to have a woman kill herself by running in front of the patrol car.

Subrogation must start while Workers' Comp claim is pending - Pennsylvania

The ruling by the Commonwealth Court of Pennsylvania in Liberty Mutual Insurance Co. v. Excalibur Management Services d/b/a/ Excalibur Insurance followed from a 2010 work-related auto accident in which the employee collected Workers' Comp and first-party medical benefits from Liberty Mutual. A year after the accident, Liberty Mutual sought reimbursement from the employer's insurer, citing the primacy of Workers' Comp over automobile insurance benefits. The court noted that insurance companies must assert subrogation interests at the time the claim is proceeding through Workers' Compensation hearings.

Average weekly wages must reflect seasonal work - Tennessee

A Tennessee appellate court recently reversed a trial court's determination of an injured employee's average weekly wage (AWW), finding that the court erred in failing to include in its computation the time periods during which the employee was laid off because of the seasonal nature of the employer's business. Noting that the employer's layoffs were the result of a market-driven force and they were a regular incident of employment, the appellate court found that the employee's lost time was not a "fortuitous circumstance" such that the employee was entitled to deduct the layoffs from the calculation of her AWW.