Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Post-offer medical examination “textbook case” of ADA

In EEOC v. M.G.H. Family Health Center, a federal district court in Michigan ruled that the health center violated the ADA when it fired a recently hired community outreach coordinator over fears that her migraines or other impairments might interfere with her job performance. According to the court, this was a textbook case of unlawful discrimination based on a perceived disability. Congress explicitly clarified in the ADAAA that “major life activity” definitions are not relevant to the question of whether an individual has suffered unlawful discrimination based on a perceived disability.

When the health center hired the community outreach coordinator, she was told she would be required to undergo a “post-offer” medical examination by a third party, but could begin work. While the results of the exam were normal, the third party recommended she be put on a “medical hold” and undergo a costly functional capacity evaluation (FCE) due to migraines and other medical issues resulting from injuries in a car accident that were documented in her medical files. After she had been working in the job without incident for two weeks, the health center terminated her before allowing her to complete the FCE, which she offered to pay for herself.

In granting summary judgment for the EEOC, the district court noted three things that the employer did wrong: (1) it did not engage in an individualized assessment; (2) it did not follow the recommendation of the physician to have the employee complete a functional capacity evaluation; and (3) it terminated the employee’s employment after the employee had been performing the job for two weeks without incident, even though her own physician had submitted information indicating she was able to perform the job.

Takeaways: When using post-offer, pre-employment examinations, it’s best to make the offer conditional and conduct the exam prior to the first day of employment. If the exam does reveal some concerns about the ability of the individual to perform the job, it’s the employer’s responsibility to engage in the interactive process to determine if reasonable accommodations can be provided.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Lawsuit over OSHA electronic records rule delayed

A Texas court granted a request from the Trump administration for a 60-day delay in litigation of the electronic record-keeping rule and stayed the case until June 5, 2017. The deadline to submit a proposed summary judgment briefing schedule and for the administration’s response to motions to intervene in the case was extended to July 5.

Deputy assistant secretary of labor creates blog on large enforcement cases

Since the Trump administration took office, there have been very few press releases announcing health/safety violators. For years, the agency has routinely issued press releases about companies receiving citations of $40,000 or more and some workplace safety professionals have criticized the current administration for staying quiet on the issue. Taking matters into his own hands, Jordan Barab, the deputy assistant secretary of labor for OSHA for the past eight years created a blog of the large violations from January 18, 2017 to February 14, 2017.

Guidance documents on Process Safety Management Standard issued

Three guidance documents intended to help chemical facilities comply with the agency’s Process Safety Management Standard have been released.

 

Volks Rule overturned

As expected, President Trump signed the disapproval resolution of the controversial “Volks” rule, which increased the threshold for citing employer violations from six months to up to five years.

New online tool to help healthcare facilities address bloodborne pathogens and other hazards

NIOSH has established a web-based injury and exposure monitoring system available at no cost to healthcare facilities. There are two electronic modules for tracking “sharps” injuries, as well as blood and body fluid exposures among health care workers.

Legal case addressing scope of federal safety inspections proceeds to US Court of Appeals

This case centers on an investigation of a workplace accident at Mar-Jac Poultry Inc., a poultry processor in Georgia, and OSHA’s attempt to expand it on numerous potential hazards, beyond the site of the accident and the tools involved. The company refused. OSHA obtained an administrative warrant but it was disallowed by the U.S. District Court for the Northern District of Georgia in response to a motion from Mar-Jac. It is now headed to the U.S. Court of Appeals for the 11th Circuit.

Safe + Sound week

To help employers participate and plan events for Safe + Sound week, June 12-18, OSHA has updated its webpage with sample activities, social media resources, and tools. The page also features an interactive map of events occurring across the country. Employers are encouraged to host events and activities that showcase the core elements of an effective safety and health program – management leadership, worker participation, and finding and fixing workplace hazards.

Enforcement notes

California

Building supply company fined for fatal forklift accident

A 60-year-old forklift operator was transferring building supplies from San Francisco-based Good View Roofing & Building Supply Corp.’s warehouse to a customer vehicle when the forklift he was driving tipped over the edge of a ramp and the worker was fatally crushed. The company was cited for three serious accident-related violations for failure to ensure proper use of a forklift seatbelt, failure to ensure the forklift operator was certified to safely operate the vehicle, and failure to ensure industrial ramps have at least an 8-inch curb along open edges to prevent the wheels of industrial trucks from running off the ramp. California’s Division of Occupational Safety and Health fined the company $62,320.

Appeals board upholds citations for carbon monoxide poisoning

Workers contracted by Barrett Business Services to package fruits and nuts in L&L Foods’ warehouse in Anaheim had complained to their supervisor that they were experiencing headaches, nausea and other health issues caused by forklifts operating in an enclosed area with poor ventilation. In 2012, citations were issued to both Barrett Business Services and L&L Foods for numerous safety violations, including willful violations for failing to take action on known hazards and the companies filed appeals. L&L Foods settled its case, but an administrative law judge denied Barrett’s appeal and imposed civil penalties of $80,050 and Barrett petitioned for reconsideration with the Appeals Board. The Board agreed the employer did not properly train its employees, disregarded workers’ reports of health hazards, and failed to monitor the worksite.

Georgia

Cleaning service cited for slip hazards that led to worker injury

Cleaning contractor Healthcare Services Group Inc. was cited for eight violations of workplace safety and health standards after a worker fell and broke her hip while cleaning a room at a regional hospital. Violations included not providing dry standing places or mats for workers cleaning and waxing floors, and not providing personal protective equipment to prevent exposure to hazardous chemicals. Proposed fines are $143,410.

Illinois

Employee complaints lead to citations for exposing workers to chemical hazards

An inspection of Orion Industries Ltd. in Chicago, in response to two employee complaints, identified workers in the spray painting operation being exposed to hexavalent chromium at levels approximately 40 times the permissible exposure limit. Inspectors cited the company for lacking sufficient engineering controls, work practices and protective gear to safeguard workers against exposure to hexavalent chromium. Orion was prompt in addressing the worker overexposures and achieved significant reductions in the fines by the time of its closing conference.

Massachusetts

Drain company faces $1.5M in fines following fatal trench collapse

Following the death of two employees in a Boston trench collapse, Atlantic Drain has been issued 18 citations and is facing $1,475,813 in penalties. The company was cited in two previous years and did not provide safety training and basic safeguards for employees. In February, a Suffolk County grand jury indicted Atlantic Drain and company owner, Kevin Otto, on two counts each of manslaughter and other charges in connection with the deaths.

General contractor must pay fines

An administrative law judge with the independent Occupational Safety and Health Review Commission has ruled that two Massachusetts contractors – A.C. Castle Construction Co. Inc. and Daryl Provencher, doing business as Provencher Home Improvements – were operating as a single employer at a Wenham worksite when three employees were injured in October 2014. A.C. Castle contended that, as general contractor, it was not responsible for the safety of the workers on the jobsite, asserting that they were employed by Provencher. Based on a number of factors, the judge upheld the citation as a single employer.

New York

Driller’s death leads to $360,000 in fines

Catskill-based North American Quarry and Construction Services L.L.C, has agreed to pay $360,000 in penalties related to the 2012 death of a 30-year-old driller. The employee became entangled in the rotating drill steel and suffered fatal injuries when he tried to manually load a threaded drill steel into the mast of a drilling machine at the pit. The Labor Department’s Mine Safety and Health Administration determined that, before the accident, the company intentionally removed an emergency-stop switch from the drill and that the driller was assigned to work alone under hazardous conditions.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

Opioid abuse rises with length of prescription

According to a study by the U.S. Centers for Disease Control and Prevention, the risk of opioid abuse rises with lengthy prescriptions. If received a one-day prescription, 6% were still on opioids a year later; when prescribed for 8 days or more, this rises to 13.5%; when prescribed for 31 days or more, it increases to 29.9%.

Blacklisting rule repealed

President Trump repealed the so-called “blacklisting rule” that required federal contractors to disclose labor violations. The executive order had required employers bidding for federal contracts worth at least $500,000 to disclose any of 14 violations of workplace protections during the previous three years.

FMCSA will not reinstate overnight rest regulations for commercial drivers

The Federal Motor Carrier Safety Administration’s (FMCSA) regulation that required CMV (Commercial Motor Vehicle) drivers to take breaks in the hopes of preventing driver fatigue has been suspended since 2014 so that further research could be done to understand the efficacy of the program. A study from the Department of Transportation found that stricter mandated breaks did not do much to reduce driver fatigue or improve safety. Thus, the rule will not come out of suspension.

Study reveals occupations with sleep deprived workers

If your industry is health care, food service, or transportation, your workers are probably not getting adequate sleep, according to a study published March 3 in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. Workers who averaged fewer than seven hours of sleep per night were classified as having short sleep durations. Occupation groups that failed to average seven hours of sleep included:

  • Communications equipment operators: 58 percent
  • Rail transportation workers: 53 percent
  • Printing workers: 51 percent
  • Plant and system operators: 50 percent
  • Supervisors, food preparation and serving workers: 49 percent
  • Extraction workers: 45 percent
  • Nursing, psychiatric and home health aides: 43 %

The American Academy of Sleep Medicine and the Sleep Research Society recommend that adults 18 to 60 years old get at least seven hours of sleep every day. A lack of sleep can contribute to cardiovascular disease, obesity, diabetes, depression, and other health issues, as well as contribute to more injuries on the job.

NIOSH announces free health screenings for coal miners

A series of free, confidential health screenings will be available for coal miners as part of the NIOSH Coal Workers’ Health Surveillance Program. The first set of screenings will take place from March 26 to April 15 in coal mining regions throughout Alabama. The second set will occur from May 10 to May 31 throughout Indiana and Illinois. Finally, testing will take place from July 30 to Aug. 26 throughout Eastern Kentucky.

NIOSH updates mine hazard assessment software

Mine operators and workers now have access to updated hazard assessment software from NIOSH. According to the agency, EVADE 2.0 – short for Enhanced Video Analysis of Dust Exposures – offers a more comprehensive assessment of the hazards miners face by pulling together video footage and exposure data on dust, diesel and other gases, as well as sound levels.

Study: PT as effective as surgery for carpal tunnel

Physical therapy is as effective as surgery in treating carpal tunnel syndrome, according to a new study published in the Journal of Orthopaedic & Sports Physical Therapy. Researchers in Spain and the United States report that one year following treatment, patients with carpal tunnel syndrome who received physical therapy achieved results comparable to outcomes for patients who had surgery. Further, physical therapy patients saw faster improvements at the one-month mark than did patients treated surgically.

When hospital inspectors are watching, fewer patients die

A recent report in the New York Times cited a study in JAMA Internal Medicine which found death rates dropped when inspectors were onsite. In the non-inspection weeks, the average 30-day death rate was 7.21 percent. But during inspections, the rate fell to 7.03 percent. The difference was greater in teaching hospitals – 6.41 percent when the inspectors were absent, and 5.93 percent during survey weeks. While the difference may seem low, an absolute reduction of only 0.39 percent in the death rate would mean more than 3,500 fewer deaths per year.

Although the reasons for the effect are unclear, it was suggested when docs are being monitored, diligence ramps up.

Wearing eye protection can prevent 90 percent of work-related eye injuries, experts suggest

Ninety percent of on-the-job eye injuries could be avoided if workers wore eye protection, according to the American Academy of Ophthalmology (AAO). AAO offers the following tips for avoiding workplace eyestrain or injury:

  • Wear protective eyewear appropriate for the type of hazard you may encounter
  • Position your computer monitor 25 inches away
  • Follow the 20-20-20 rule: Every 20 minutes, take a break by looking at an object 20 feet away for 20 seconds
  • Reduce glare on your cell phone or digital device
  • Adjust environmental lighting near your workstation

 

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: ABA’s summary of 2016 FMLA cases

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from 2016 in a user-friendly manner.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Protect yourself: Every employer needs to understand the Borrowed Servant Doctrine

Temp and contingent workers and “lent” employees are becoming a permanent fixture in an economy where employees crave flexibility, labor competition is fierce, technological skills are in high demand, and benefit costs are significant. This growing and increasingly multifaceted worker class is rapidly changing how companies fill jobs and the makeup of their workforce. Given this trend, companies must be alert to the issues surrounding this class of worker, including workers’ compensation and tort liability.

There is an old rule known as the “Borrowed Servant Doctrine” that creates a special employment relationship where the lending employer is the “general” or “regular” employer, the borrowing employer is the “special” employer, and the employee is the “borrowed servant.” Some lawyers argue that this outdated master-servant language can easily prejudice a jury.

The doctrine is recognized in almost all states, although the specific tests used to determine if a particular worker qualifies as a “borrowed servant” and the employer as a “special employer” do vary. The majority of tests revolve around the question of control, both over the work that is being done and the manner in which it is performed. Many states have adopted a three-part test:

  1. The employee has made a contract of hire, express or implied, with the special employer (consent may be inferred from the employee’s acceptance of the special employer’s control or direction)
  2. The work being done is essentially that of the special employer; and
  3. The special employer has the right to control the details of the work.

Most common relationships that lend themselves to special employer situations

  • Skilled or unskilled labor employed by a temporary staffing agency
  • Property managers who work at a specific property
  • Employees who are hired to work at a client’s location, such as IT personnel and accountants
  • Contractual relationships between a general contractor and subcontractor or equipment rental companies

This doctrine does not apply to employee leasing operations such as PEOs and, in most cases, does not apply to independent contractors.

Why it’s important to understand the terms of the relationship

  • If not protected by a contractual agreement, the workers’ compensation policy of the special employer could be tapped to provide benefits for “borrowed servants,” increasing premiums for additional employees and rates, if someone is injured.
  • An injured “borrowed servant” can sue the person who caused the injury and that person’s direct employer, if the employer is not a “special employer”.

Contrasting two legal decisions illustrates the importance of protecting the company before entering into such hiring agreements. In Gregory v. Pearson, a temp working for Cleveland County in North Carolina filed a lawsuit against the County after suffering a workplace injury. While the County argued that the lawsuit was barred by the special employment and exclusive remedy doctrines and the trial court agreed, the Court of Appeals reversed the decision. Noting that the contract between the temp agency and the County expressly stated that temporary workers were not employees of the County, the Court held that the County failed to satisfy the first requirement of the special employment doctrine, i.e., that the employee had entered a contract of employment with the County. The temp was, therefore, not a special employee, and her case was not barred by the exclusive remedy doctrine.

In Massachusetts, an employee of American Resource Staffing Network, Inc. (ARS) was injured while on assignment at ARS’s customer, State Garden, Inc. (State Garden). The worker was awarded workers’ compensation benefits under ARS’s workers’ compensation insurance policy. The state statute permits injured workers to bring suit against “any person other” than the insured employer who may be liable for the worker’s injuries and the worker sued State Garden claiming that its negligence caused his injury in Molina vs. State Garden, Inc. The contract between ARS and State Garden included an “alternate employer endorsement” to ARS’s workers’ compensation insurance policy. That endorsement provided that ARS’s worker’s compensation policy “will apply as though the alternate employer [State Garden] is insured.” Thus, the Appeals Court determined that the exclusive remedy of workers’ compensation protected State Garden.

Protection options for employers

  • Alternate Employer Endorsement is designed to extend Workers’ Compensation protection to the special employer’s “borrowed servants.” Attached to the general employer’s policy, the endorsement specifically names the special employer, thus extending the required Workers’ Compensation protection without the need of the special employer to make any adjustment to its policy. Insurance expert, Christopher Boggs, Executive Director / Virtual University at Independent Insurance Agents and Brokers of America, notes, “If you are the special employer, this could be a good solution, but if you are the direct employer moving the coverage to the special employer may be the best solution.”
  • Multiple Coordinated Policy Endorsement extends benefits to the borrowed employees rather than having to depend on the staffing firm for coverage, if the staffing agency is unwilling to name the special employer as an alternate employer.
  • Contractual risk transfer. Require the “general employer” to indemnify the “special employer” against all losses, damages and claims arising from the negligence of the “borrowed servant.”
  • Require the “general employer” to name the “special employer” an additional insured under the “general employers” GL Policy.

The determination of the existence of the special employer relationship is based on the particular facts of the case and no two cases are exactly the same. It is the reality of the control that is relinquished to the “special employer,” not the parties’ characterization of the relationship that will determine the outcome.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Things You Should Know

EEOC issues guidance on mental health discrimination and reasonable accommodations

A resource document titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” is now available from the EEOC, reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the ADA.

Sound level meter mobile app from NIOSH

NIOSH has developed a sound level meter mobile app designed to measure noise exposure in the workplace. The app, available for Apple devices, provides noise exposure metrics, including instantaneous sound levels in A-weighted, C-weighted or Z-weighted decibels, as well as parameters intended to aid with lowering occupational noise-induced hearing loss. Users can save and share measurement data and receive general information about noise and hearing loss prevention.

NIOSH recommends using the app with an external microphone and acoustical calibrator for better accuracy. The app is not intended for compliance or as a substitute for a professional sound level meter or a noise dosimeter, the agency cautions.

Mine safety inspection rule delayed

The Mine Safety & Health Administration’s newly issued workplace examination rule, is another one of the rules delayed 60 days by the Trump administration’s Jan. 20 regulatory freeze and review instructions. The rule, which was to go in effect May 23, is intended to improve miner safety and health by requiring examinations take place before miners are exposed to adverse conditions and notifying miners when a hazardous condition is found.

Five warning signs of employee fatigue

  1. Unusual emotion: employees acting out of character, such as showing emotional distress, moodiness, or having a bad attitude in the workplace.
  2. Consistent lateness: if a normally punctual employee arrives late to work every morning, it can indicate poor work-life balance.
  3. A cluttered workspace: Pay attention to employees’ desk and workstations. While some people prefer a more chaotic environment, a messy workspace can be a symptom of overwork.
  4. Forgetfulness and disregard for the team at large: It can also be a sign that the employee in question has too many things to think about and isn’t on top of their workload.
  5. Productivity dips despite longer hours: Productivity often decreases the longer employees spend at work.

Source: WorkForce Software (WFS Australia)

FDA approves long-acting opioid painkiller, Arymo ER.

The U.S. Food and Drug Administration (FDA) has approved Egalet Corp.’s long-acting opioid painkiller, Arymo ER. An independent panel recommended the drug be labeled as an abuse-deterrent product. Arymo ER is a long-acting variation of morphine that is intended to treat pain severe enough to require daily, around-the-clock, long-term opioid treatment. It comes in the form of a very hard pill that is difficult to crush and otherwise manipulate by people looking to abuse the product.

EPA updates

  • Final rule sets standards on ‘restricted use’ pesticides
    Certified workers who apply “restricted use” pesticides must be at least 18 years old and have their certification renewed every five years, according to updated standards finalized Dec. 12 by the Environmental Protection Agency.
  • Risk Management Program rule for chemical facilities amended
    Amendments to its Risk Management Program rule are an effort to improve chemical process safety and keep first responders safer.
  • Requirements to help prevent paraquat poisonings
    The herbicide paraquat can result in death or injuries through ingestion or skin or eye exposure. Paraquat is used for weed control and as a defoliant on some crops before harvest.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Severe obesity claim of discrimination can proceed

A bus driver of the Chicago Transit Authority sought to return from an extended medical leave and was cleared through a fitness exam to return to work, but failed a safety assessment and was not allowed to return to work. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and the employee had not alleged a physiological disorder.

However, the Court noted that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. The court did not take a position on what approach is right, but said “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.” Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016)

 

FMLA
Medical privacy protected under FMLA

In Scott Holtrey v. Collier County Board of County Commissioners, the Florida U.S. District Court ruled the employer violated the FMLA when a management-level employee allegedly disclosed the employee’s serious health condition with his genitourinary system to co-workers and subordinates at a staff meeting. The employee became the subject of jokes and obscene gestures. While the County Board argued that the interference claim failed because it granted the employee FMLA leave, the Court disagreed, “The enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA.”

Doctor’s certification and job description key factors in defining essential functions

A laborer for the City of Red Bank in Tennessee, who rose to the position of Assistant to the Director of Public Works, did significant outdoor work. His job evolved and required different responsibilities, more and more of which were outdoors. He developed skin problems and was diagnosed with lupus. His dermatologist said he needed to be indoors.

After an indefinite FMLA leave lasting six months, he returned to work and bought protective clothing, but it failed to provide adequate protection. He sought another FMLA leave and his doctor ‘s certification emphatically stated that he must work indoors. When it was determined he was not qualified for the two open indoor positions, he was terminated.

The City prevailed at the federal court level, and upon appeal the Sixth Circuit Court of Appeals affirmed that the worker did not show that he could perform the essential functions of his job with or without accommodation. While the employee and the doctor attempted to modify their position after the termination decision, the City had a right to base its decision on the information available at the time of termination. Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016)

Workers’ Compensation
Michigan federal court reiterates that RICO may not be used for bad faith claims – United States

Citing two earlier precedents, a federal district court sitting in Michigan ruled that racketeering activity leading to a loss or diminution of benefits that a worker expects to receive under a state workers’ compensation system does not constitute an injury to “business or property” under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The worker tried to distinguish his case by alleging tortious activity by “independent medical examiners.” Gucwa v. Lawley, 2017 U.S. Dist. LEXIS 8698 (E.D. Mich., Jan. 23, 2017)

Medicare reimbursement is limited to related injuries identified by diagnosis codes – California

The U.S. District Court for the Central District ruled in favor of the California Insurance Guarantee Association (CIGA) in its ongoing challenges against the Centers for Medicare and Medicaid Services (CMS) over the Medicare Secondary Payer (MSP) practices. CIGA faced Medicare Conditional Payment demands for three separate workers’ compensation claims that had settled. Included in the demands were diagnosis codes unrelated to the accident.

CIGA noted to the court that it is not uncommon in conditional payment letters from the CMS for multiple diagnosis codes to appear under a single charge – some of which relate to a medical condition covered by the primary plan, but others that do not. CMS routinely determines if any of the codes relates to a covered condition and seeks reimbursement for the full amount. California Insurance Guarantee Association v Burwell, et al case no. 2:15-cv-0113odw (ffmx)

Broad interpretation of employment finds union responsible for member’s injury – California

In Mason v. S.E.I.U. Local 721, 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that an employee of the County of Los Angeles, Department of Children and Family Services who was a member of S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury while participating in a union rally. The WCAB found employment by the union, noting the injured worker was rendering service for “another,” (the union), and that the union provided transportation, food and water while at the rally, and that the services and goods provided by the union were akin to economic substitutes for wages.

Injured worker can’t switch to doctor in different specialty – Florida

In a case of first impression, the Florida 1st District Court of Appeal ruled that a worker exercising his statutory right to a one-time change in physician was not entitled to choose a new doctor in a different specialty simply because the carrier did not respond in a timely fashion. In Retailfirst Insurance Co. v. Davis, an employee who had injured his leg had received authorization for treatment with a family practice physician and later sought authorization for care with an orthopedist. The court noted that procedures exist for such a request.

Change in economic conditions not basis for increased benefits – Illinois

In Murff v. IWCC (City of Chicago), No. 1-16-0005WC, 01.06.2017, an injured worker returned to work in a modified capacity. Later, he was determined to have reached maximum medical improvement and was awarded benefits and continued to work in the modified capacity for about six months. He was then told him that if he could not return to his old job duties, he’d have to go home, so he went on disability leave and filed a claim seeking additional comp benefits.

The Appellate Court upheld the findings of the lower courts that there was no evidence he had not suffered any material change in his physical or mental condition since the award of benefits. An increase in economic disability is not a basis for additional comp benefits.

Lung disease from pigeon droppings lead to lifetime of benefits – Missouri

In Lankford v Newton County an investigator with the county prosecutor’s office would smoke frequently on the courthouse roof, which was a popular place for pigeons. In 2002, he was diagnosed with COPD as a result of ammonia exposure from investigating a meth lab and in December 2007, after undergoing lung surgery, to remove half of his right lung, which contained a nodule that was suspected to be cancerous, he suffered a stroke that left him unable to work.

He filed a workers’ comp claim asserting that he was exposed to pigeon droppings during the course and scope of his employment. Doctors noted that a biopsy of his lung nodule showed the growth contained bacteria and a fungus linked to pigeon droppings. He died of complications and his wife became the claimant. The case was appealed up to the Court of Appeals, but in each case, the award of $167,811.62 in permanent total disability benefits to the deceased worker, as well as more than $500 in lifetime weekly workers compensation benefits to his wife, was approved.

Change in job duties means claim compensable despite pre-existing condition – Missouri

In Clawson v Cassens Transport Company, a union car hauler had a pre-existing knee condition as a result of a work-related accident a few years earlier. After working for 3.5 years after the accident, his workload increased and he began working 6-7 days per week. When he complained of pain in his knee, the employer denied the claim and declined to provide medical treatment. He sought medical treatment on his own, was advised to have surgery and a doctor opined the issue was casually related to the increase in his job duties.

At a hearing, an ALJ found that although there was a pre-existing condition, the prevailing factor in causing his worsening condition was the change/increase in his job duties.

Subcontractor found guilty for worker’s death – Missouri

The U.S. District Court in Kansas City found Pacific-based DNRB Inc., a steel erection company doing business as Fastrack Erectors, guilty in the 2014 death of an employee who fell while working on a warehouse construction project in Kansas City. The court found that “Fastrack was aware of safety violations but willfully ignored them, with tragic results.” Fastrack was a subcontractor to ARCO National Construction – K.C., Inc. and the contract required that personnel who were working or present at heights in excess of six feet shall be provided adequate fall protection and Fastrack failed to do so.

Undocumented worker due comp benefits – New York

A U.S. District Court judge dismissed an insurer’s request to forgo payment of workers’ compensation benefits for an undocumented landscaper’s injury. The insurer, NorGuard Insurance Co., sought a declaratory judgment that it wasn’t obligated to pay medical expenses, indemnity payments or comp benefits because the worker had entered the U.S. illegally.

The court noted that the insurers allegations simply do not “fall within the zone of interests protected by law invoked. Such violations are the concern of the Internal Revenue Service, Homeland Security, and like agencies.”

Opera singer can sue Met for injuries sustained in fall – New York

Finding that her employment contract was with her personal holding company and not the Metropolitan Opera House, an Appellate Court found that a prominent opera singer can sue the famous facility that featured her in over 500 performances. Noting that New York law generally considers a person engaged in the performing arts an employee of the establishment where he or she performed, the exception here was the singer was stipulated to be an employee of another employer. Therefore, the exclusive remedy provisions of workers’ comp do not bar her suit. White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)

No reason to stop compensating attendant care by wife – North Carolina

In Thompson v. International Paper Co., No. COA15-1383, 01/17/2017, a worker was burned over 23% of his body in a work-related accident. His wife took FMLA leave from her job to care for her husband and, when she returned to work, she arranged her schedule to accommodate his medical needs. While the company accepted the burn injuries as compensable, it denied reimbursement for attendant care services provided by his wife. The full Industrial Commission ruled that attendant care by his wife was unnecessary after Dec. 31, 2012, but the appellate panel disagreed. While the need for care may have lessened, treating physicians had found attendant care was medically necessary.

Futility in finding another job allows continuing benefits – North Carolina

In Neckles v. Teeter, a 68-year-old employee who had moved to the U.S. from the Caribbean island nation of Grenada had worked as a meat cutter and suffered an injury to his lower back, right hip, and right arm and leg for which he was compensated and received temporary total disability. A functional capacity evaluation concluded he couldn’t go back to his job as a meat cutter, but he was capable of a job that required light physical demands, however, a vocational rehabilitation specialist determined it would be difficult for him to get any job.

Three years later, the employer filed a form alleging the worker was no longer disabled. After a series of appeals, the Court of Appeals ruled that the worker should continue to receive TTD benefits and coverage of medical expenses. According to the court, it was necessary to look at the totality of the evidence, including age, education, work experience, work restrictions for the compensable injury, other unrelated health conditions (i.e., diabetes, gout, and angina), and trouble communicating (a thick accent).

IRE that didn’t consider worker’s psyche invalidated – Pennsylvania

A divided Supreme Court ruled that an impairment rating evaluation (IRE) that failed to consider a worker’s psychological injuries from an industrial accident was invalid, noting an IRE doctor must consider all conditions that he or she believes are related to the worker’s injury, not just those that are designated in the notice of compensation payable (the “NCP”.)

In this case, an employee suffered an electric shock and received 104 weeks of temporary total disability benefits at which time the employer requested an IRE. The doctor assigned a 6% permanent impairment rating, but the employee argued his compensable injury included damage to his psyche as well as his hands. A workers’ compensation judge found the worker had adjustment disorder and post-traumatic stress disorder that were compensable consequences of the accident. While the Workers’ Compensation Appeal Board and the Commonwealth Court reversed this decision, the Supreme Court overturned their ruling, noting that the IRE doctor must determine the level of impairment and in this case did not assess psychological conditions, nor determine whether those conditions were fairly attributable to the accident. Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.)

Supreme Court affirms franchisors do not employ their franchisees’ employees – Pennsylvania

In Saladworks, LLC v. W.C.A.B. (Gaudioso), the question revolved around whether the franchisor, Saladworks, was a statutory employer. Under Pennsylvania law, when an employee is unable to recover from its direct employer, the employee can file a workers’ compensation claim against a “statutory employer.” A Workers’ Compensation Judge initially held that Saladworks was not a statutory employer, however, the Workers’ Compensation Appeal Board reversed that decision. On appeal, the Commonwealth Court reversed the Board’s decision recognizing the difference between Saladworks’ business model and the business engaged in by its franchisee. The Supreme Court dismissed the appeal, effectively upholding the Commonwealth Court’s decision.

Penny wise and pound foolish: attorney’s fees of $27,000 awarded for $187 medical claim – Tennessee

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers’ Compensation Appeals Panel of the Supreme Court affirmed a trial court’s award of attorney’s fees and expenses in the amount of $27,353.63, in connection with an employee’s petition to compel the employer to pay $187 for two trigger point injections. The workers’ compensation carrier had sought a peer utilization review (UR), although it had paid for earlier injections. An authorized physician provided the injections to the injured employee, but the UR provider found the injections unnecessary. Following a hearing, the trial court disagreed.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Top 10 Workplace Trends in 2017

Performance Management tops the list

The Society for Industrial and Organizational Psychology (SIOP) asked its members – who study workplace issues of critical relevance to business, like talent management, coaching, training, organizational development, and work-life balance – about their predictions for 2017. Topping the list of top ten is the changing nature of performance management.

While much has been written about companies ending annual performance reviews and ratings, it’s unclear what will take its place. The group predicts, “Organizations can expect to rely less on once-a-year performance appraisals and more on frequent feedback and coaching to put the focus on improving performance. Strategies, such as continuous performance management, will lead to a greater emphasis on real-time feedback, daily manager-employee relationships and an increased need for managers to acquire the skills to coach and deliver timely feedback to employees.”

For the Top 10 Workplace Trends for 2017

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com