Legal Corner

ADA
Landmark consent decree in website accessibility and mobile applications

The Department of Justice (DOJ) entered into a landmark consent decree resolving its first lawsuit brought under the Americans with Disabilities Act (ADA) centered on the accessibility of corporate websites and mobile applications. The case involved the National Federation of the Blind and H&R Block. H & R Block agreed to make its website, tax filing utility, and mobile applications conform to the Web Content Accessibility Guidelines (WCAG) 2.0 to the Level AA Success Criteria, agreed to pay damages of $45,000 and a civil penalty of $55,000 and take steps to maintain the accessibility of its website and mobile apps.

Website accessibility is the next cutting edge issue under Title III of the ADA. Companies offering services to the public should audit their websites and apps now and address accessibility issues, rather than wait for the DOJ's regulations.

Wisconsin company pays $25,000 for regarding an employee as disabled

A disability discrimination lawsuit brought by the EEOC found that Rexnord Industries, LLC, violated federal law by firing an assembler because it regarded her as having a disability after two unrelated incidents, which ended in ambulance trips to the hospital. The company was ordered to pay the former employee $25,000 because it failed to properly analyze whether the assembler was a safety threat, which requires employers to use the best available medical information to evaluate the seriousness and likelihood of any risk after first trying to reach a pre-litigation settlement through its conciliation process. - EEOC v. Rexnord Industries, LLC

FMLA
Undefined need for time off as a result of depression does not qualify for FMLA protection

In Hurley v. Kent of Naples, the Eleventh Circuit vacated a lower court's $1 million judgment in favor of a former executive of a Florida-based security company who claimed he was terminated because he sought leave to help alleviate his depression. Although the employee stated he was depressed and needed time off, he was not seeking leave for a present incapacity nor to obtain treatment for his chronic condition. Rather, he acknowledged he was seeking leave at various points in the future because it would be "beneficial" to deal with his depression. There was no indication that he was incapacitated from work because of the condition.

In its finding the court noted "giving an employer notice of unqualified leave does not trigger the FMLA's protection . . . [o]therwise, the FMLA would apply to every leave request."

Employee refusal of FMLA leave nixes protection

A recent decision of the United States Court of Appeals for the Ninth Circuit has brought into question the necessity of designating leave as FMLA leave. In Escriba v. Foster Poultry Farms, Inc., an employee requested two weeks of vacation to care for her sick father in Guatemala, a FMLA-qualifying reason. When asked, she noted she did not need additional, unpaid time to care for her father, so the company did not designate the leave as FMLA-protected. When she did not return to work at the end of her vacation, and was absent without notification, the company terminated her employment.

The employee argued that the employer interfered with her FMLA rights and was required to designate her leave as FMLA, regardless of whether she expressly declined it. The court disagreed, concluding that nothing in the FMLA precludes an employee from deferring the exercise of FMLA rights, even if the underlying reason for seeking the leave would have invoked FMLA protection. In this case, there was substantial evidence that the employee had refused FMLA protection.

The decision applies within the Ninth Circuit's jurisdiction.

Recreational travel can qualify as FMLA leave

The 7th Circuit Court of Appeals ruling that an employee accompanying her terminally ill mother on a "bucket list" trip to Las Vegas was entitled to FMLA protections contradicts 1st and 9th circuit rulings, which required travel be for medical purposes. A former Chicago Park District employee, who lived with and cared for her terminally ill mother, took off work and accompanied her mother on a 6-day trip to Las Vegas. The Park District terminated the employee, arguing that the trip was not related to ongoing medical treatment and therefore not subject to FMLA.

Ultimately the 7th Circuit court found in favor of the employee, noting FMLA did not contain any geographic or location-specific limitations; and that the FMLA did not explicitly define "care." The court broadly defined "care" as attending to "basic medical, hygienic or nutritional needs."

Workers' Compensation
Employees awarded benefits in spite of illegal drug abuse - Arkansas

In a case that has bounced between the state's appellate courts and its Workers' Compensation Commission for several years, the Supreme Court of Arkansas, reversed the state's Court of Appeals that had denied benefits to two workers who tested positive for marijuana use after the accident. The workers suffered serious burns when one used an acetylene torch to remove the tops from several barrels that had earlier contained petroleum residues, causing a barrel to explode.

Although Arkansas law presumes that illegal substances cause a workplace accident when evidence of drug use is found,the Supreme Court ruled that the incident "was not substantially occasioned by the use" of alcohol or drugs. It relied heavily on the fact the employee had performed the task this way before, concluding that the accident and the injuries were the direct result of the employee's practice of opening barrels in an unsafe manner with an acetylene torch.

Senior Citizen's Freedom to Work Act means Worker Comp benefits do not have to be offset by Social Security - Kansas

Kansas, like many other states, requires that an employee's Workers' Compensation award be set-off by any retirement benefits received from a retirement benefits program, including Social Security. A Kansas appellate court has held, however, that following the passage of the Senior Citizens' Freedom to Work Act of 2000, which allows a retired worker aged 65 or older to receive Social Security benefits and continue to work without penalty or reduction in benefits, a qualifying injured employee's Workers' Compensation benefits should not be subjected to offset. The employee's Social Security benefits and Workers' Compensation benefits were not duplicative because the employee was entitled to both revenue streams prior to his injury and should continue to be entitled to both streams after.

Wrongful death suit of social worker's estate prohibited by exclusive remedy - Massachusetts

The estate of a residential treatment counselor at a mental health clinic may not maintain a wrongful death action against two directors of the mental health association that employed the decedent, held the Supreme Judicial Court of Massachusetts. The counselor was fatally attacked by one of the facility's residents. While the suit contended the directors failed or declined to adopt and enforce safety policies and staffing and training requirements that reasonably would have prevented the attack, the high court held the action was barred by the exclusive remedy provisions of the state Workers' Compensation act.

i-LIMB should replace prosthesis - Michigan

In Hanson-Bayerl v. Menominee Acquisition Corp., the Michigan Compensation Appellate Commission affirmed the Workers' Compensation magistrate's order that the i-LIMB was reasonable and necessary to replace the prosthesis provided by the employer after a traumatic partial amputation of the worker's left arm two years earlier. The i-LIMB was more functional than the worker's current prosthesis and would assist the worker in her goal of returning to work.

High court says PTSD is no "brain injury" - Minnesota

Citing the Minnesota rule that so-called "mental-mental" injuries-mental injuries associated with mental stimulus, as opposed to physical stimulus-are not compensable and that it is for the state's legislature, and not its courts, to change the rule, the Supreme Court of Minnesota recently affirmed the denial of benefits to a police officer who developed post-traumatic stress disorder (PTSD) after he had responded to a horrific accident at the local high school. He was close to the victim who died and her family and it was well documented that he experienced nightmares, flashbacks, anxiety and insomnia. - Schuette v. City of Hutchinson, 2014

Home health aide sues employer over bed bug exposure - Nebraska

After caring for an elderly patient, a home health aide needed treatment for bedbugs and sued her employer for $3,000 to cover the cost of exterminating the bugs.

A small claims court judge awarded the home health aid lost wages and half of what she asked for exterminator costs. The employee's medical bills were paid through Workers' Comp.

Compensable claim denied because employee failed to follow doctor's orders - Nebraska

In Boger v. Magnus Co., a Nebraska appellate court affirmed a decision by the state's Workers' Compensation Court that limited an injured employee's medical benefits to the costs of his first medical appointment because the employee thereafter failed to follow and comply with his physician's orders.

The employee, who had diabetes, but admitted he failed to manage it, developed a serious blister on his toe during his second day of work with the employer. At the hearing, he admitted he did not take the prescribed antibiotics for the length of time required by his physician, failed to use crutches prescribed for him, and did not wear the specially prescribed open-toed, mesh shoe that would have helped in his recovery. The court indicated that the employee's actions amounted to an independent intervening event terminating the employer's responsibility for any Workers' Compensation benefits after the initial visit to the doctor.

Foreman's acute knee injury isn't compensable occupational disease - North Carolina

In an unpublished decision, Valladares v. Tech Electric Corp., the North Carolina Court of Appeals held that a foreman's knee injury did not constitute a compensable occupational disease. An electrical foreman sustained a work-related injury to his knee. An MRI revealed a complex medial meniscus tear, which required him to undergo surgery. The foreman stipulated that his injury was not the result of an injury "by accident" and that he was pursuing his claim solely as an occupational disease claim because his work required constant squatting, kneeling and ladder climbing.

The Industrial Commission denied his claim, concluding that there was no expert medical evidence to support the claim that his meniscus tear was the result of a chronic degenerative process or disease that was caused by his employment

Impairment rating evaluation disqualified because physician did not meet statutory requirements - Pennsylvania

A Pennsylvania appellate court affirmed the denial of an employer's petition to modify an injured employee's benefits on the ground that the physician who performed the Impairment Rating Evaluation (IRE) on which the Modification Petition was based did not meet the requirement of Section 306(a.2) of the Workers' Compensation Act that physicians performing IREs must be "active in clinical practice for at least twenty hours per week." Although the IME physician was licensed to practice medicine in Pennsylvania, was board-certified in occupational medicine, had special training on the AMA Guides that physicians must apply in performing IREs and had performed IREs under both the fifth edition and the current, sixth edition AMA Guides, the court found at the relevant time of the case, she did not treat or manage the care of any patients.

No on-site supervision renders gym membership noncompensable - Pennsylvania

In Chapman v. Alvin H. Butz, Inc., the Pennsylvania Workers' Compensation Appeal Board reversed the Workers' Compensation judge's decision approving gym membership as compensable because there was no record of any on-site personal supervision or instruction by a licensed medical provider. In this case, the gym membership was to last for an entire year, but the physical therapist released the worker from his care during that time period with no indication of any planned on-site supervision.

Employers not liable for subcontractor injuries - Utah

Utah employers are responsible only for the workplace safety of their own employees, not of their subcontractors, the state Supreme Court ruled. The case involved Hughes General Contractors Inc. and one of its subcontractor, B.A. Robinson & Sons Construction Inc. surrounding a citation by the Utah Occupational Safety and Health Division for failure to meet state safety standards including scaffolding erection. Overturning earlier rulings, the court rejected the so-called multiemployer worksite doctrine used by the federal Occupational Safety and Health Administration (OSHA), which holds a general contractor accountable for the safety of all employees on a worksite, including subcontractors, asserting that the federal doctrine is incompatible with the governing Utah Occupational Safety and Health Act.

Court overturns ruling that heat exhaustion resulted in permanent disability - Tennessee

A Tennessee appellate court reversed a trial court's decision that a Workers' cCmpensation claimant was entitled to PPD benefits associated with two separate episodes of heat exhaustion during one summer, finding the employer's medical expert to be more credible. The expert indicated it was medically undisputed that heat exhaustion did not cause permanent injury. - Hollars v. United Parcel Serv., Inc.