Booth v. Nissan North America, Inc., 927 F. 3d 387 (6th Cir.)
Employee had permanent work restrictions from a neck injury. He worked with permanent restrictions on the assembly line at Nissan for a decade without incident. He requested transfer to a different position in the facility which the employer denied because the requested position’s duties conflicted with the employee’s permanent restrictions. Soon thereafter, the employer announced plans to restructure the assembly line to include additional job duties. The additional job duties would have conflicted with the employee’s restrictions. When the employer told the employer this, the employer suggested the employee see his physician to see if the restrictions could be modified. He continued working on the original assembly line within his restrictions, and saw his physician. His physician modified his restrictions, clearing him to work on the restructured assembly line.
The employee brought suit in Federal Court alleging the employer violated the ADA by discriminating against him due to his disability by denying his transfer request and by failing to accommodate him by pressuring him to remove his work restrictions.
The Sixth Circuit Court of Appeals affirmed summary judgment to Nissan, holding that there was no evidence the employee was disabled or that the employer failed to accommodate him. The Court explained that, having work restrictions does not equate with disability under the ADA. There must be a showing that the condition precludes the employee from working in a class or broad range of jobs.
- Do I have to pay my employees when they have symptoms to be off work?
- Is there an offset for unemployment compensation received during this time period if a worker contracts COVID-19 and also receives workers’ compensation?
- What is required to prove a COVID-19 BWC claim?
- Can I voluntarily pay a worker during his time off?
The COVID-19 pandemic raises many more questions as it relates to Ohio Workers’ Compensation law. The bottom line with regard to the COVID-19 pandemic is that legally this is uncharted territory and we will need to evaluate this on a case by case basis. In this time of uncertainty, we know the safety of your employees is your greatest concern, if you have specific questions regarding preventative safety measures or how the law will apply to COVID-19 claims, please do not hesitate to contact us at 937-748-9770. Staying healthy, staying together and staying strong will move us through this unprecedented time.
OSHA recently announced it will not enforce record keeping requirements for COVID-19 in most industries where there is ongoing community transmission. This announcement reverses previous guidance provided by the agency in March when the agency said COVID-19 transmission in the workplace, unlike the flu or common cold, would be considered a recordable injury.
For employers not involved in healthcare, emergency response (e.g., emergency medical, firefighting and law enforcement services) or operating correctional institutions, and until further notice, OSHA will not be enforcing the requirement that employers perform a work-relatedness determination to assess whether an employee became infected with COVID-19 at work, except where:
1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation, and
2. The evidence was reasonably available to the employer. Examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
In other words, for most employers, unless there is some “reasonably available” “objective evidence” of work-relatedness (e.g., a high infection rate in a cluster of people who work closely together), and where there is not “an alternative explanation” as to how that group of people may have otherwise become infected, then the infections are not recordable or reportable (in the event of a fatality or hospitalization). Employers who experience “a number of cases developing among workers who work closely together” will need to evaluate available information to determine whether there is objective evidence of transmission in the workplace. Such information should include the timing of the employees’ infections as well as the timing of when those employees worked around or were exposed to one another, work practices and precautions in place during such times, as well as other risk factors of the infected individuals outside of work that might provide alternative explanations for their infections.
Healthcare providers, emergency responders and operators of correctional institutions must continue performing work-relatedness determinations and recording (and possibly reporting) employees’ COVID-19 infections.
This change to OSHA’s recordkeeping and reporting requirements came shortly before OSHA announced its COVID-19 Interim Enforcement Response Plan, which further focused the agency’s investigatory resources on healthcare providers, emergency responders and other high risk employers.
In response to Governor DeWine’s stay at home order and COVID-19 social distancing guidelines, the Industrial Commission is now conducting many hearings by telephone, including hearings involving the following issues: initial allowance of claim, additional allowance, temporary total disability, termination of temporary total disability, wage loss, permanent total, and permanent partial disability. Parties, representatives and counsel have been calling into the IC to participate in telephone hearings, but this has caused delays and confusion. The IC recently adopted new telephone hearing processes and are scheduled to begin on April 27, 2020. The Industrial Commission will provide, on its hearing notices, a telephone number and access code for parties, representatives and counsel to call in order to participate.
The BWC Employer Services Division has announced it will implement two changes in payroll reporting requirements as a result of COVID-19. These changes may impact how you will report payroll for the upcoming (policy year 2019) true-up period:
1. Emergency sick leave and expanded FMLA paid to employees under the Families First Coronavirus Response Act will not be reportable to BWC for premium purposes
2. Employers are permitted to report operational staff currently teleworking (as a result of Governor DeWine’s stay at home order) to class code 8871- Clerical Telecommuter during a declared state of emergency. This will ease the economic impact of the COVID-19 state of emergency on the Ohio business community.
See BWC FAQs page.