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Medical limitations can mean accommodations are not possible

If an employer legitimately cannot make an accommodation that meets the employee's limitations, then the employee is not "qualified" under the ADA, and therefore unprotected by that law was the finding in Horn v. Knight Facilities Management-GM, Inc.

The employee worked as a janitor and developed sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day, but modified the restrictions to "no exposure to cleaning solutions" when the hour limitation failed. Management tried to find a solution by speaking with the union rep, but concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. The company noted that a respirator may not meet her restrictions and even if it did, it would cause an undue hardship to buy respirators for all the other janitors and therefore fired her.

Focusing on the limitations imposed by the physician, "no exposure to cleaning solutions", the 6th Circuit court affirmed the district court's dismissal of the disability discrimination claim.

Shift reassignment does not violate ADA

In Hamedl v. Verizon Commc'ns, Inc., an employee requested to work the midnight to eight shift because it would reduce his back pain by lessening the time he sat in traffic. Because it paid a premium, this shift was in high demand and assignment was based on seniority. Prior to FMLA leave, the employee worked this shift, but during his leave it was discovered that his seniority had been miscalculated and he was reassigned to the day shift.

The employee was permitted to work a modified daytime shift beginning at 6 a.m. to avoid travel during rush hour, but he argued that the modified schedule was not sufficient accommodation. The appellate court held that the modified early shift was a reasonable accommodation because the preference for a midnight shift did not render unreasonable an otherwise reasonable accommodation.

6th Circuit Court of appeals overturns lower court ruling that FMLA does not apply

In Alan Demyanovich v. Cadon Plating & Coatings L.L.C. et al, the U.S. District Court in Detroit dismissed all the charges, stating, among other factors, that there was a question as to whether Cadon is covered by the FMLA (had fewer than 50 employees) and that the employee could not show he would have been able to work at the end of the 12-week FMLA leave period.

Upon appeal, the 6th Circuit found that although Cadon had fewer than 50 employees in the 13 months prior to the leave request, it was an "integrated employer" with Utica, Mich.-based MNP Corp., because it shared several common managers, had interrelated operations and was owned by the same group on investors. Further, the court rejected Cadon's contention that Demyanovich would not be able to return to work at the end of the 12-week period. It is the role of medical professionals to determine an employee's ability to work or return to work with restrictions and employers should not prejudge what an employee may or may not be able to do at the end of a leave of absence.

The case was remanded to the lower court for further proceedings.

Workers' Compensation
Fired worker only has to prove workers' comp claim was a contributing factor - Missouri

In a closely watched case, the Missouri Supreme Court overturned two previous Missouri Supreme Court decisions that held "exclusive cause" as the standard for worker's comp discrimination lawsuits. The ruling that gives greater legal protections to injured workers who subsequently are fired, found employees must show only that workers' compensation claims were a contributing factor in the subsequent dismissal from their job.

The case involved an injured employee who was on light duty and fired for "milking his injury." While a jury found in favor of the employer because the workers' comp claim was not the exclusive factor in the firing, the Supreme Court found that a "contributing factor" standard should have been used and that workers' comp discrimination should be considered in line with other Missouri employment discrimination laws under the Missouri Human Rights Act. John Templemire v. W&M Welding Inc

Benefits awarded to obese woman too big for seat belt - Missouri

While the employer argued that the employee violated a safety policy by not wearing a seatbelt and sought a 50% reduction in benefits, a health care provider was awarded permanent and total disability benefits for injuries she sustained when she became distracted by the patient, and struck a car resulting in leg injuries which placed her permanently in a wheelchair. It was noted that the employer did not "adopt" a policy to require its workers to wear seat belts and that a policy for employees to "obey the laws" was insufficient to invoke the penalty. Furthermore, it could not be proven that the lack of a seat belt caused the injuries. Barton v Green Acres Home of West Plains and Newton Group Home

Worker investigated for threats of mayhem denied psych claim - Missouri

In Davis v Mo Baptist Medical Center, a hospital technician who was investigated for allegedly making threats that she would like to bring a gun and shoot everyone at work and was mad enough at times to do it herself. She was examined by the hospital's emergency room, which concluded she was not a threat to herself or others and that someone possibly overheard conversations about a mass shooting and jumped to conclusions. While she was referred to an EAP Program, she never returned to work, claiming stress and humiliation.

Although the Commission agreed the employee had experienced "indignities" of being confined in an emergency room for a psychiatric evaluation, it found that the exam occurred in the context of a patient-physician encounter and not from a risk associated with her employment. Therefore she failed to prove an injury arising out of her employment or the absence of good faith required in a stress claim.

PTSD award plus treatment for worsening recreational drug problem upheld - Nebraska

A store manager who was shot in retaliation for reporting a previous robbery and who developed PTSD as a result of the incident, was appropriately awarded medical and disability benefits, according to the Supreme Court of Nebraska. Evidence suggested that even after the shooting, the assailants contacted the employee yet again, threatening the employee and his family. The employee was also entitled to inpatient care to treat a pre-existing non-prescription drug addiction that a mental health practitioner found had increased due to anxiety over the shooting. Kim v. Gen-X Clothing, Inc.

Workers' Compensation trumps vehicle-traffic regulations - New York

The exclusive remedy barred a worker injured in a work-related auto accident from suing his co-worker. He, however, sued the other driver and her husband who owned the car. They in turn filed a third-party complaint under vehicle-and-traffic law against the owner of the car, the co-worker's husband, who had no employment relationship in the case. In New York, vehicle-and-traffic law "renders a vehicle owner vicariously liable for injuries resulting from the negligent permissive use of a vehicle."

The state's high court found that that "a defendant may not pursue a third-party contribution claim under vehicle and traffic law ... against a vehicle owner where the driver's negligence was a cause of the plaintiff's injuries, but the driver is insulated from a lawsuit under workers' compensation law." Isabella v. Hallock

PSTD claim denied because level of stress was not unusual - New York

In New York, mental injuries caused by work-related stress are compensable if the claimant can show the stress that caused the injury was "greater than that which other similarly situated workers experienced in the normal work environment." While there was medical proof established that the employee sustained incapacitating mental trauma as a result of her work, she testified she experienced harassment and stopped working after a staff meeting at which she was singled out and humiliated by one of her superiors, but the employer's witnesses directly stated that she had not been singled out in any way at the meeting and that she did not appear to be upset at the time. Guillo v. New York City Housing Auth.

Exclusive remedy applies to subcontractor - Pennsylvania

In reversing a $1.5 million liability judgment for an injured worker, the state Supreme Court found that workers' compensation exclusive remedy provisions applies for a general contractor that hired a subcontractor who was injured on a construction project. While lower courts found that the subcontractor was an independent contractor and not an employee, the Supreme Court ruled that employees of conventional subcontractors are also employees of general contractors. Patton v. Worthington Associates, Inc.

Subrogation claims based upon state paying the workers' compensation benefits - Pennsylvania

In Young v Workers Compensation Appeal Board, the Commonwealth Court ruled that when dealing with subrogation claims, a court or Workers' Compensation Judge should apply the law of the state through which workers' compensation benefits were paid. In this case, the worker was injured in Delaware, but received benefits under the Pennsylvania Worker's Compensation Act, therefore Pennsylvania subrogation laws apply.

Drunken claims adjustor denied benefits - Washington

While traveling employees are generally considered to be in the course of employment continuously, a claims adjuster who was on assignment in Galveston Island after Hurricane Ike and who drank one evening to the point of intoxication did not remain within the scope of employment under the traveling employee doctrine, held a Washington appellate court. Accordingly, injuries sustained when he apparently fell from some sort of vehicle while "riding in [the] dunes" were not compensable.

The court added that the proper inquiry in determining if a traveling employee has left the course of employment is "whether the employee was pursuing normal creature comforts and reasonably comprehended necessities or strictly personal amusement ventures."