Articles | Cases

Legal Corner

Reasonable accommodation request and COVID-19 decision: Employer must allow employee to continue telework for at least 60 days

In Peeples v. Clinical Support Options, Inc., a Massachusetts federal court ruled an employer could not fire an employee who refused to return to the office when all managers were told to return to the workplace after several months of teleworking and must allow her to telework for at least 60 days. The assistant manager suffers from moderate asthma and was allowed to work an additional four weeks at home, but when she returned to the office she found that the company had not provided all the protective items she requested. When the company responded and provided protective items, including KN95 masks, she argued she could not work effectively with children while wearing a mask. Ultimately, she resigned but noted in her letter she would rescind the resignation if she could telework.

The company refused to let her telework and she filed a disability discrimination suit, arguing she should be allowed to telework for the duration of the pandemic. While the case was decided at the preliminary injunction stage and is not binding precedent, it does provide guidance for employers when evaluating requests for reasonable accommodations in light of COVID-19.

Conditions, such as asthma, that place employees at higher risk of contracting coronavirus may be considered a "disability" for ADA purposes. When employees have been teleworking, they can more easily build the case that they can perform the essential functions of the job while teleworking. Also, courts may view measures such as personal protective equipment, face masks, hand sanitizer, wipes, air purifiers, and even private spaces, as general employee safety measures and not as reasonable accommodations to an employee's disability.

ADA does not trump safety requirements

In an unpublished opinion, Holmes v. General Dynamics, the U.S. 4th Circuit Court of Appeals found that a woman who has diabetes and a genetic toe condition is not protected by the ADA. General Dynamics Mission Systems in Virginia terminated a worker after she refused to wear steel-toed boots in her fabrication job, which the company said was necessary to prevent injuries and reduce workers' compensation costs.

Although the employee presented medical evidence that the shoes could potentially threaten her life or lead to amputation, the court affirmed a lower court decision that a worker who cannot comply with valid safety requirements is not a 'qualified' individual for ADA purposes.

Workers' Compensation
Court clarifies PTSD filing time deadlines for first responders - Florida

A first responder who witnessed the drowning of a young boy in 2015 was diagnosed with post-traumatic stress disorder in 2019 following a diving trip with friends that caused nightmares. In Palm Beach County Fire Rescue v. Wilkes, an appeals court overturned a Judge of Compensation Claims finding of compensability because his claim was not timely filed.

In so doing, the Court of Appeal said the plain language of Section 112.1815(5)(d) clearly states that a "claim under this section" must be properly noticed within 52 weeks of the "qualifying event." Under the law, the qualifying event in this case was the drowning of the boy in 2015, not the manifestation of PTSD.

Court clarifies independent contractor classification - Michigan

In Drob v. SEK 15 Inc., an appeals court upheld a trial court ruling that a part-time bartender who was paid "under the table" and who suffered a serious ankle injury was an independent contractor and not an employee. The court noted that neither it nor the Supreme Court had addressed which of two tests should be used to determine employment status.

The Michigan Administrative Hearing System (MAHS) uses the 20-factor IRS test to determine employment status, but courts have used a three-factor test. A worker is an employee if they do not maintain a separate business, they do hold themselves out to and render service to the public, and they are not an employer subject to the act.

Since the worker acknowledged she advertised her bartending services for special events and to other establishments, she was not an employee, but an independent contractor and was not barred from tort action by the exclusive remedy.

Undocumented worker can keep benefits - New York

In Policarpio v. Rally Restoration Corp., an appellate court overturned a decision by the Workers' Compensation Board that disqualified an undocumented worker from additional benefits because he was no longer attached to the labor market. The worker speaks limited English, does not read or write English, and his injury prevents him from working in the construction industry. He sought employment by walking around NYC and identifying places where he could work as a prep cook, dishwasher, restaurant helper, or ironing worker.

In a 3-2 decision, the appellate court found that the worker had applied for 62 positions and therefore was attached to the labor market. The dissenting judges noted that many of the businesses identified did not have open positions and the worker did not attempt to find advertisements of those that did, thus, his job search efforts were not in good faith.