Legal Corner

ADA
Remote work not reasonable accommodation

In Jordan v. School Board of the City of Norfolk, the Eastern District Court of Virginia denied a school principal's request for remote work, which she argued was a reasonable accommodation for her asthma and restrictive lung disease that was aggravated by the poor condition of the school building. Ruling that on-site presence was an essential function of her job, the court noted although the employer allowed remote work during the pandemic, they can require employees to meet pre-pandemic essential job functions, including in-office presence. Employers are reminded to ensure their policies and procedures are modified to reflect the current practices and expectations and include all essential job functions, including in-office presence, in written job descriptions.

Workers Compensation
Exceptions to exclusive remedy do not apply - California

In Jimenez v. Mrs. Gooch's Natural Food Markets Inc., a worker was struck by a vehicle during his break and later died. His family sued the company arguing two exceptions to comp exclusivity. When employers serve a dual capacity applied because workers administered first aid and failed to call 911. They also argued the fraudulent concealment exception applied because the company never told him he was entitled to workers comp.

According to the court, the dual capacity exception only applies when work injuries are aggravated by an employer that assumes a relationship with an employee other than that of employer-employee and does not apply when an employee receives medical services incidental to employment. The fraudulent concealment exception also didn't apply in the case since the employer and employee were aware of the injury.

Termination not motivated by comp claim - Florida

In Francois v. JFK Medical Ctr., a mental health technician intervened when patients attacked nurses on two different occasions during the same day. In one of the altercations, he sprained his wrist and subsequently filed a comp claim. Although the managers had different recollections of a video of the second altercation, they agreed it showed the technician allegedly sitting on top of the patient and cocking his wrist back.

The hospital terminated the technician for using excessive force and the technician argued he was fired because he exercised his rights under the workers' compensation act. The company argued the business judgment rule, which prohibits courts from second-guessing the business judgment of employers. Therefore, the issue was not whether the managers had a sound basis for the termination, but whether they believed they did. The court ruled the temporal proximity of the two events was not enough to show retaliation and there was no evidence produced that the managers did not genuinely believe the technician used excessive force.

Day-to-day work description pivotal to award carpal tunnel treatment - Missouri

In Patrick Aubuchon v Doe Run Company, two hand specialists reached different conclusions about causation of a worker's carpal tunnel. The Commission affirmed the ruling of an Administrative Law Judge that found the defense expert over-relied on an ergonomic job description rather than the worker's description of day-to-day work. A temporary award for severe left carpal tunnel and bilateral epicondylitis was granted.

Despite violation of law employer does not have to pay penalties to employee - Pennsylvania

In an unpublished opinion, Jeantel v. Success America (WCAB), a school bus driver was injured in a physical altercation with an unruly student. He was awarded medical-only comp benefits, but his employer did not provide a list of physicians from whom he could seek treatment. His employer made an appointment for him, but he ultimately sought care from his physicians. He argued he should have been able to choose from a panel of doctors, and that this omission warranted penalties against his employer.

A WCJ denied the request for penalties but ordered the company to pay for all the treatment and the Board and Commonwealth Court concurred. They found no evidence of ill-will and accepted the violation as a technical error.

Remote worker receives benefits for at-home injury - Tennessee

In Batey, Kari v. Beacon Hill Staffing Group, a worker was hired to work remotely entering invoices into a database for one of the staffing agency's clients. The agency gave her a laptop, mouse, and other equipment, and she set up an office in the upstairs of her home, which she described to the staffing agency. She was allowed two breaks plus a lunch break.

On the morning of the injury, she clocked in, performed some work duties, and attended an online training. At the end of the training, she agreed to attend another training, but asked to be excused to go to the bathroom, which was on the main floor. As she hurried down the steps, she fell and sustained a vertebrae fracture. She filed a comp claim, which the company denied, contending the injury was of unexplained cause or origin and therefore not compensable. The court disagreed and granted benefits and attorney's fees for the wrongful denial.

Cumulative mental injury not compensable - Tennessee

In David Russell vs. Hertz Corp. a worker claimed he experienced workplace retaliation and harassment after complaining about discrimination and suffered a mental breakdown. The Court of Workers' Compensation Claims determined the worker wasn't entitled to benefits because he failed to prove the mental harm was specifically connected to a workplace incident. For a mental injury claim to be compensable, an employee must prove the psychological injury was caused by "an identifiable work-related event resulting in a sudden or unusual stimulus." Gradual or cumulative mental injuries are not compensable.

Refusal of light duty job requiring COVID vaccine not grounds for benefit termination - Virginia

In John Holliday v. City of Chesapeake, a groundskeeper suffered a compensable injury and was unable to return to his pre-injury job. The city engaged a vocational rehabilitation expert who found a part-time production job with a services firm, which fit his physical capabilities.

He went for an interview, successfully performed a trial run, underwent a drug screening, and accepted the job offer. He was then asked to provide proof that he had been vaccinated against COVID-19, which he had not received for religious and personal reasons. He withdrew his acceptance and the city moved to suspend his benefits. Under state law, benefits can be restricted if an injured employee refuses employment suitable to his capacity unless such refusal is justified.

The Workers' Compensation Commission found that the refusal to receive the vaccine was not tantamount to an unjustified refusal of selective employment. The court noted that the record offered no medical evidence that it was safe or advisable for him to undergo the vaccination, nor was there any evidence that the employer required the COVID-19 vaccination of its employees. Further, he had indicated a willingness to work by accepting the job offer.