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Case to watch: EEOC challenges wellness program

The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against a Wisconsin energy company, Orion Energy Systems, Inc., for allegedly violating the ADA, charging that it shifted responsibility for paying health care premiums to an employee who refused to participate in its wellness program, then fired her. This is the EEOC's first lawsuit to directly challenge a wellness program under the ADA.

The EEOC charges that Orion violated the ADA by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of an involuntary wellness program. It also charges that the firm retaliated against the employee because of her good-faith objections to the program.

Psychological counseling not job related and consistent with business necessity

The 6th U.S. Circuit Court of Appeals case, Emily C. Kroll v. White Lake Ambulance Authority, involved a Michigan EMT who was fired after she refused psychological counseling that was required by a supervisor concerned about her "immoral" sexual conduct, having an affair with a fellow employee who was married. When she refused treatment because she could not afford to pay for it, she was terminated.

Overturning a District Court ruling, the appellate court found that the required counseling was not job-related and consistent with business necessity because it could not be shown that the extramarital relationship resulted in her inability to perform the essential functions of her job. The court was troubled that the supervisor's decision was guided by moral convictions rather than medical concerns.

Employers take note: Notices should not be sent by regular mail

Employers should not send mandated Family and Medical Leave Act (FMLA) notices by regular mail, says the 3rd U.S. Circuit Court of Appeals in Philadelphia. In Lisa M. Lupyan v. Corinthian Colleges Inc., an employee, who said she never received a written notice of her FMLA leave, was terminated about 18 weeks after she had begun to take her FMLA leave, partly because she had not returned to work within the 12 weeks permitted by law for that leave. Her suit was dismissed by the district court but the appeals court reversed, noting "In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice."

Workers' Compensation
In-home caregivers may not sue Alzheimer's patients for injuries - California

Acknowledging that agitation and physical aggression are common late-stage symptoms of Alzheimer's disease, that injuries to caregivers are not unusual, and that California and other jurisdictions had previously established the rule that Alzheimer's patients were not liable for injuries to caregivers in institutional settings, the California Supreme Court extended that rule to in-home caregivers. Gregory v. Cott, 2014 Cal. LEXIS 5460 (Aug. 4, 2014)

Truck drivers are employees not independent contractors - Michigan

In this case, Max Trucking, LLC v. Liberty Mutual Ins. Corp., Max Trucking asserted that Liberty Mutual charged it higher premiums than it should have because Liberty Mutual mistakenly determined that certain truck drivers were employees under Michigan's Workers' Disability Compensation Act (WDCA). Liberty Mutual disagreed and sought payment of premiums. A federal district court found in favor of Liberty Mutual, noting:

"The Court finds that none of the drivers at issue maintains a separate trucking business; holds himself out to the public as a trucking business; or qualifies as an employer under the WDCA. The trucks at issue are all registered in Max Trucking's name. Max Trucking provides liability and physical damage insurance coverage and advances fuel and repair payments to the drivers, eventually charging costs back to the drivers. The drivers have the means necessary to perform the services for Max Trucking only because Max Trucking provides these things up front, even if the costs are ultimately charged back to the drivers. Most importantly, Mr. Kovacevic, Plaintiff's General Manager, testified that the drivers at issue get their trucks only on the strength of Max Trucking's credit."

Clerk injured pulling files from cabinet gets benefits - Missouri

A woman who worked as a clerk in the Randolph County assessor's office, hurt her back while trying to remove files from a jammed filing cabinet. While her physician acknowledged that she had degenerative disc disease, "a condition that progresses over time due to aging and normal activities," he also noted that continuing symptoms and her need for surgery were directly related to the work injury.

The Missouri Court of Appeals affirmed the commission's decision to award benefits based on the argument that the accident was "the prevailing factor in causing both the resulting medical condition and disability." Randolph County, Missouri v. Tammy Moore-Ransdell

"Manifestation date" clarified in benefit awards for repetitive trauma injury - Nebraska

The Supreme Court of Nebraska recently held that for purposes of assigning liability among several employers for a dental hygienist's repetitive trauma injury, the injury manifested itself on the day she first missed work due to pain and not the date several years earlier when she first began to feel discomfort while working and first sought medical treatment. Accordingly, the employer and the employer's carrier on that latter date were liable for all of the hygienist's medical expenses and compensation benefits. Potter v. McCulla, 288 Neb. 741, 2014 Neb. LEXIS 124

State Supreme Court overturns ruling and husband of obese worker who died at her home desk denied workers' comp survivors benefits - New Jersey

In August 2011, we reported on this case noting the award of benefits by a Workers' Comp judge. The case has been through a series of appeals and the New Jersey Supreme Court has reversed lower court judgments.

The question of a sedentary home office job versus an individual's health factors marked the case of James P. Renner vs. AT&T. Catherine Renner, was working overnight in her home office to finish a project when she died from a blood clot that formed in her leg and moved to her lung. The 25-year-old woman had an enlarged heart and weighed over 300 pounds. Clots in the leg can form as a result of inactivity. While the lower courts concluded that her work activity led to her death, the Supreme Court noted that " She was not confined to a specific space or instructed not to move from her workstation... She was free to take breaks, during which she could stand, stretch, leave her workstation for a bathroom break or refreshments, or briefly exercise."

Workers injured returning from supervisor's holiday lunch denied benefits - North Carolina

Two technical support analysts sustained serious injuries in an accident when they were returning to the office in a state-owned vehicle after a voluntary employee luncheon. The Industrial Commission found and the Appellate Court concurred that injuries didn't occur within the course and scope of employment, as the employees were not "traveling" to perform work for their employer but to attend a "social event". Furthermore the accident was "caused by a risk that is common to the public occurring while they were traveling on a public road while returning to their workplace from that social event." Graven v. N.C. Dep't of Public Safety-Division of Law Enforcement, 2014 N.C. App. LEXIS 811

After quitting, worker is injured and entitled to benefits - Pennsylvania

A driver technician of medical equipment and furniture showed up for work on Monday after being on call all weekend. He reviewed his delivery list and objected to his manager that it would take until midnight to complete. When the manager refused to revise the list, the employee quit and was escorted to his truck to collect his personal items. After removing the items, he tripped over a pallet jack and his manager witnessed the fall. He filed a civil suit, but the company argued that workers' comp was the exclusive remedy, so he filed a claim, which went through a series of appeals.

The Commonwealth Court found that the company presented inconsistent arguments when it said that workers' comp was the exclusive remedy under the civil suit, but then claimed the resignation prevented him from being considered an employee for workers' comp purposes. The appellate court also found that employment termination doesn't bar workers' comp benefits when a worker is acting under an employer's direction on the employer's premises. Marazas v. Workers' Comp. Appeal Bd. (Vitas Healthcare Corp.), 2014 Pa. Commw. LEXIS 405

Employer has burden of proof when seeking to modify benefits based on earning capacity - Pennsylvania

In Simmons v. Workers' Compensation Appeal Board (Powertrack International), the Commonwealth Court held that, when an employer seeks to modify benefits based on earning capacity, the employer must demonstrate that the employee's symptoms have improved sufficiently to re-enter the workforce. The employer does not have to prove that diagnoses have changed since the last proceeding.

Undocumented worker can sue employer for retaliation over workers' comp claim - Tennessee

Undocumented workers have the right to sue their employers if they believe they were fired in retaliation for filing a workers' compensation claim, the Tennessee Court of Appeals has ruled. The worker for an auto supplier injured his back and hired an attorney when he experienced problems collecting workers' comp. After the attorney contacted the employer, the employee was allegedly "unprofessionally confronted" and fired for "lack of work."

The employer argued that case law requires a worker to be capable of performing his job in order to maintain a cause of action for retaliatory discharge; and because the worker could not legally do this, he should be precluded from bringing a claim. While a county court concurred, the Court of Appeals overturned, noting that a retaliatory discharge cause of action was created, not to protect the right to work, but rather to prevent a chilling effect on employees asserting their rights under the Tennessee Workers' Compensation Act. Accordingly, the undocumented worker had standing to bring the civil action against the former employer. Torres v. Precision Indus., 2014 Tenn. App. LEXIS 470

Employee's decision to take buyout does not preclude full comp benefits - Tennessee

The Supreme Court of Tennessee ruled that since an employee's reasons for accepting a voluntary buyout were reasonable and related to his injuries, his award of PPD was not limited to 1.5 times the employee's medical impairment rating ("MIR") under Tenn. Code Ann. § 50-6-241. The Court noted that, ordinarily, "if an employee retires or resigns or declines an offer to return to work for either personal or other reasons that are not related to his or her workplace injury, the employee has acted unreasonably and his benefits must be capped". The Court explained, however, that whether an employee acted reasonably is a highly fact-intensive question that is best left for trial courts to decide. Yang v. Nissan N. Am., Inc., 2014 Tenn. LEXIS 607