Legal Corner

ADA
Requiring employee to submit to a fitness exam without showing a job-related reason for exam violated ADA

Eight months after receiving complaints through an anonymous letter that co-workers feared for their lives, the Township of Lakewood, N.J. required an employee to submit to a psychological fitness-for-duty examination, noting that failure to attend the exam would result in disciplinary action. The employee challenged the examination as not meeting the ADA standard of being “job related and consistent with business necessity,” and he refused to attend the examination. Following a public hearing, he was terminated.

The Court found that Township had no reliable information from a third party (the anonymous letter did not meet the standard without investigation) and had not made independent observations of the alleged behavioral problems at work and therefore, did not meet the threshold to lawfully require the employee to undergo a psychological fitness-for-duty examination. Paul Williams, Township of Lakewood, 2016 N.J.Super. LEXIS 15, (App. Div. January 25, 2016).

Applicant who could not raise arm protected by ADA

An applicant who was offered a position as a field engineer had an opioid prescription for painkillers and could not fully lift his right arm. He underwent a pre-employment physical and the examining doctor issued several job limitations related to driving, climbing, lifting and walking, which were part of the job. The employee spoke to HR and other departments to allay the fears of his ability to do the job and provided clearance forms from his doctor, but the company rescinded its offer based on his inability to climb a ladder.

The applicant filed a complaint with the EEOC and it concluded the company had failed to engage in the interactive accommodation process or to show the applicant would have posed a direct threat to himself or his co-workers. While the district court dismissed the suit, noting the disabled standard was not met, the 5th U.S. Circuit Court of Appeals reversed and ruled that he had a viable claim under the ADA with the broadened definition of disability. Cannon v. Jacobs Field Services Inc., 5th Cir. No. 15-20127 (Jan. 13, 2016).

Pennsylvania paper company settles bias charge over forklift operator requirements

P.H. Glatfelter Co., a global paper manufacturer, required all individuals who applied for or worked in positions involving the operation of forklifts or similar motorized industrial equipment to undergo a medical exam and pass a DOT physical qualification standard for the operation of commercial motor vehicles, even though this is not required by the DOT. The EEOC argued that this policy discriminated against applicants with disabilities and the company has agreed to pay $180,000 to settle the disability discrimination lawsuit.

FMLA
Employers need to define 12-month period

In Caggiano v. Illinois Dept. of Corrections (IDOC), IDOC maintained a FMLA policy, but did not inform employees how the 12-month FMLA period was defined. An employee seemingly had exhausted his leave and was terminated after three unexcused absences. However, the court determined that when the 12-month period was not defined, the “most beneficial” outcome should be used, effectively earning him back two weeks of FMLA leave. Had IDOC designated the “rolling” method to calculate FMLA leave, it would have been protected.

Workers’ Compensation
Exclusive remedy defense does not apply in job murder suit – Georgia

An appellate court has ruled that the workers’ compensation exclusive remedy rules do not prevent a woman from suing her late son’s employers because his death did not arise out of his job duties. Employed by Staffchex, the employee was waiting for a supervisor outside the office at a warehouse owned and operated by OA Logistics Services Inc., when he was randomly shot by another Staffchex employee, who had no previous contact with him, assaulted a female employee, and had falsified his records for employment.Sturgess v. OA Logistics Services Inc.

Rogue supervisor defense does not hold up – Georgia

In Quinlan v. U.S. Department of Labor, the 11th Circuit Court of Appeals affirmed that the Occupational Safety and Health Review Commission properly held Claxton-based Quinlan Enterprises, responsible for violating OSHA standards when two employees, a foreman and a subordinate, were caught working without fall protection and using a stepladder in an unsafe manner. Quinlan had attempted to invoke an earlier decision,ComTran Group Inc. v. U.S. Department of Labor, in which the court ruled in favor of the employer because of the actions of a rogue supervisor. While other employers have attempted to use a similar defense, most have failed as the ComTran case is considered an exception.

Court of appeals upholds $412,680 jury award inretaliatory complaint – Indiana

The Court of Appeals upheld a ruling from Elkhart Superior Court that a man was entitled to $412,680 in compensatory and punitive damages after Best Formed Plastics LLC fired him without cause when he filed a workers’ compensation claim.The company claimed the employee could not perform the functions of the job and accused the employee of milking the system and made a derogatory Facebook post. Best Formed Plastics, LLC, and Jane Stewart v. George Shoun, 20A03-1506-PL-651.

Injured employee cannot sue corporate parent -Indiana

An employee working for a subsidiary of AT&T, Inc. tripped and fell over a snow-covered construction sign placed in a walkway adjacent to an ongoing construction project at the AT&T building. Her direct employer and the company in charge of construction were insulated from tort liability by the exclusive remedy provisions. Hall v. Dallman Contractors, LLC, 2016 Ind. App. LEXIS 25 (Feb. 3, 2016)

Subrogation rights do not extend to pain and suffering – Massachusetts

In DiCarlo v. Suffolk Constr. Co., Inc, the Supreme Judicial Court of Massachusetts ruled that while an employer is entitled to a lien on an employee’s recovery from a third party for work-related injuries, the lien does not attach to damages paid by a third party for an employee’s pain and suffering. The Court noted the term “injury” should be construed narrowly to mean only those injuries for which workers’ compensation benefits are payable, thereby excluding pain and suffering from its purview and, by consequence, excluding damages for pain and suffering from an insurer’s lien. An employer or insurer “cannot be reimbursed for something that it did not pay.”

All employers subject to state drug testing law regardless of amount of business in state – Minnesota

In Shawn Olson v. Push Inc., a federal appeals court reversed a lower court ruling in a case involving a worker who took a job in another state for a utility contractor and underwent a pre-employment drug test at a clinic in Minnesota. When the results of the test came back as “diluted,” he was fired. The employee argued that the Minnesota Drug and Alcohol Testing in the Workplace Act prohibits an employer from terminating an employee on the basis of a first positive result of an employer-requested drug or alcohol test, and gives the employee an opportunity to participate in a counseling or rehabilitation program. The Court noted that (the law’s) broad definition of ’employer’ clearly and unambiguously includes all entities ‘doing business in’ Minnesota, not just those that do ‘relevant’ business.

Suit for off-duty worker’s death not barred by exclusive remedy – Minnesota

In an unpublished decision, Henson, et al. v. Uptown Drink, LLC, the court found the scope of employment does not automatically extend to all actions of an off-duty worker who voluntarily responds to an employer-related emergency. A food runner had clocked out at the request of his manager because of slow business and per company policy, he took off his uniform and ate a discounted meal in the game room. Later, a man attacked the general manager and attempted to choke him. Without being asked, the food runner and a bar patron came to help the bartender and general manager subdued the men.

While helping the general manager bring one of the men to the exit, the food runner fell down the stairs onto the sidewalk and died later at the hospital. The court found that the food runner’s injury did not occur in the course of his employment. He lingered at the bar for “personal pleasure,” and he was motivated “to aid a fellow human being in a time of need, not to serve his employer.”

Back injury during fitness-for-work exam compensable – Missouri

In Sanders v Rollet Brothers, 2016 MO WCLR Lexis 10 (Jan 27, 2016), the Commission affirmed a second temporary award noting the injury sustained during a “return to work” exam arose out of and in course of employment. A truck driver who was off work with cardiac problems was required to undergo a fit-for-work exam as a condition of returning to work and he took the exam “off the clock”. During the exam, he experienced sharp back pain after lifting a heavy item. In its decision to award benefits, the Commission found the accident was the prevailing cause of the injury, it did not come from a hazard or risk unrelated to the employment, and that there was no statutory requirement for the employee to establish the accident occurred “on the clock.”

Post-deposition surveillance video could not be introduced into evidence – Missouri

When, during a deposition related to an employee’s workers’ compensation claim, a representative of the employer indicated that it had conducted no surveillance activities of the worker, the employer was under an obligation to supplement that answer when it subsequently hired a private investigator to conduct surveillance. Burlison v. Department of Public Safety, 2016 Mo. App. LEXIS 63 (Jan. 29, 2016)

Benefits approved because employee’s stress greater than other workers – New York

In Haynes v. Catholic Charities, the court affirmed an award to a charity’s caseworker who contended she sustained a mental injury from the stress on her job. The caseworker had received two disciplinary letters, which normally preclude claims for mental injuries; however, she claimed that her stress was a result of being punched in the stomach by a client, and that she had overheard her supervisor making disparaging statements.

Auto parts employee awarded extensive TTD benefits for PTSD following robbery – North Carolina

An appellate court affirmed an award of continuing TTD benefits to a salesperson and driver for an auto parts store who complained of chest pains and a throbbing headache following an armed robbery at the employer’s store, but was required to work the remainder of his shift. The employee was treated for various symptoms, including acute anxiety, stress, and blood pressure elevation and did not return to work. Two medical experts found the robbery to be an acute event and the main cause of the employee’s acute anxiety and post-traumatic stress disorder. Pickett v. Advance Auto Parts, 2016 N.C. App. LEXIS 127 (Feb. 2, 2016)

Court clarifies 50-mile limit as related to an offering of “suitable” employment – North Carolina

In Falin v. The Roberts Co. Field Servs., Inc., an appellate court held that in order to be deemed “suitable,” the offered employment must be work that the employee is capable of performing, considering his or her preexisting and injury-related physical and mental limitations, vocational skills, education, experience, and the work must be within 50 miles of the employee’s residence.

Definition of imbecil to determine benefits – Texas

An employee suffered a traumatic brain injury at work and the treating physician determined he was permanently mentally incapacitated, however, a neuropsychiatrist retained by the work comp insurer found that the injury was not irreversible and the employee was “malingering.” Texas workers’ comp law allows lifetime benefits to be paid for “a physically traumatic injury to the brain resulting in incurable insanity or imbecility,” but the law does not define imbecility. Prior Texas case law has defined the term as having a mental age of 3 to 7 years and in this case, the treating physician found the employee to have a mental age of 11 or 12 years.

After appeals, a three-judge panel of the Texas 1st District Court of Appeal unanimously reversed the decision of the lower court, finding it applied a too-strict definition of imbecility. The case was remanded to the Harris County court to determine whether the condition meets a broader definition of imbecil. Francisco Chamul, Appellant v. Amerisure Mutual Ins. Co., Appellee

Gun safety class injury qualifies for workers comp – Texas

A former Dalworthington Gardens City Police Chief was accidentally shot in the right hand while teaching a concealed handgun class, which was offered as a community service. There had been an understanding – but no written policy – between the city council and the chief to provide the classes. The question arose as to whether this was a valid workers’ comp claim in an anonymous letter when the former chief decided to run for Tarrant County Sherriff. It was the city’s attorney position that it was an approved city activity and as such was reported to the workers’ comp carrier; and therefore, it was up to the carrier to decide whether to provide worker’s comp coverage.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

David Leng, CPCU, CIC, CBWA, CWCA, CRM

Author | Speaker | Certified Risk Manager | Certified Work Comp Advisor

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