Workers Compensation

COVID Questions Are Back: Paid Leave? COBRA? Vaccine Laws?

Robert C. Lockwood
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The surge in the Delta variant of COVID-19 is causing questions for many employers.

In the last few weeks, COVID-19 cases and hospitalizations have risen with the increase in the Delta variant.  As a result, I’ve started receiving more COVID-related questions.  Here are some of the most-common questions and potential answers.

1. One of my employees has been diagnosed with COVID.  Do I have to provide them with paid leave?

No.  In Alabama, the laws mandating paid leave for COVID-related absence have expired.  In 2020, Congress passed the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act.  Those laws required employers to provide paid leave to employees suffering from COVID or caring for those with COVID.  The paid-leave provisions of those Acts ended on December 31, 2020.  As a result, employers are not longer required to provide employees with paid leave for COVID-related absences.

Nevertheless, employers can voluntarily provide paid leave and receive tax credits from the Internal Revenue Service.  The American Rescue Plan Act was enacted in the Spring and allows employers with fewer than 500 employees to provide paid leave and get a tax credit through September 30, 2021.  Here’s the Act IRS fact sheet discussing those credits:  IRS Paid Leave Guidance

2.  I recently terminated an employee.  Am I required to pay their COBRA premiums?

The American Rescue Plan Act also provides a significant benefit to employees who are terminated from employment.  From April 1, 2021 to September 30, 2021, employees who suffer a “qualifying event” and lose their health insurance can have their ongoing COBRA insurance premiums paid.  A “qualifying event” includes: a reduction in hours (such as reduced hours due to change in a business’s hours of operations; a change from full-time to part-time status; taking of a temporary leave of absence; an individual’s participation in a lawful labor strike, as long as the individual remains an employee at the time that hours are reduced); or, an involuntary
termination of employment (not including a voluntary termination).

Employers are required to pay the cost of the COBRA premiums.  But, employers can reduce their payment of federal employment taxes on a dollar-for-dollar basis.  Here is the United States Department of Labor’s discussion:  DOL COBRA Premium Guidance

3.  Alabama has a new law prohibiting disclosure of vaccination status.  How does this affect my business?

Alabama Act Number 2021-493 is Alabama’s “COVID Passport” law.  For businesses, the law’s most-significant impact is its prohibition on refusing to provide goods or services, or refusing to allow admission, to an individual based on the customer’s immunization status or lack of immunization documentation.  Many commentators have noted that the law does not have an enforcement provisions.  So, it is unclear what penalties, if any, would be imposed for violating the law.  Nevertheless, I generally suggest that businesses should comply with the law.

Alabama Attorney General Steve Marshall has also issued guidance on implementation of the law, which can be found here:  Alabama’s Vaccine Law.  For purposes of this blog, the most notable portion of that guidance is the recognition that the act only “protects consumers of goods and services and does not address employer-employee relationships. Thus, it cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19.”

Employees on Workers’ Compensation Must Be Notified of FMLA Rights

Robert C. Lockwood
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Employers should give notice of FMLA rights to employees who are injured on the job.

Most employers purchase workers’ compensation insurance to provide payment and benefits for employees who are injured on-the-job.  Usually, the workers’ compensation insurance carrier handles all aspects of the claim and employers are happy to let them do so.  But, employers need to know that workers’ compensation frequently overlaps with the Family and Medical Leave Act.  And, workers’ compensation insurance companies have little motivation (and no obligation) to notify injured employees of their FMLA rights.  A recent case from the Eleventh Circuit Court of Appeals shows the danger to employers if they fail to notify injured employees of their FMLA rights.  See Ramji v. Hospital Housekeeping Sys., LLC, No. 19-13461, 2021 WL 1257247 (11th Cir. Apr. 6, 2021).

Noorjhan Ramji suffered a trip-and-fall while working on September 15, 2016.  She took eleven days off work during which her workers’ compensation physician found that she could perform light-duty work. After that finding, Ramji’s employer offered her a light-duty position, which she accepted.  Ramji continued to receive treatment and physical therapy.  On October 21, 2016, the workers’ compensation physician found that she could return to full-duty.  But, Ramji’s employer also required that she successfully pass an “essential functions” test, which appears to have been administered by her supervisors.  That test required Ramji to complete twenty tasks assessing her ability to grip, bend, lift, twist, climb and push.  When she failed five of those tasks, Ramji was fired.

A trial court entered summary judgment dismissing Ramji’s FMLA claims.  The court reasoned that the employer could not have been expected to offer FMLA rights to Ramji, because she was released to full-duty.  The Eleventh Circuit Court of Appeals disagreed and vacated the dismissal.  There are several important aspects of that decision.

  1. Ramji’s formal workers’ compensation claim  was sufficient to notify the employer that she might be protected by the FMLA.  “That claim included information about the nature of Ramji’s knee injury, the need for emergency medical and follow-up treatment, and a release excusing Ramji from three days of work.”
  2. The information in the workers’ compensation claim “activated [the employer’s] duty to provide Ramji with FMLA notice within five business day ….”  And, the Court found a failure to provide notice could be an interference with Ramji’s FMLA rights.
  3. The employer argued that Ramji’s acceptance of a light-duty position relieved it of the duty to notify her of FMLA rights.  Yet, the Eleventh Circuit found that Ramji was entitled to choose between a paid light-duty job and an unpaid period of FMLA leave.  “But Ramji never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave.  [The employer] made that choice for her by offering only a light-duty assignment.”  The failure to provide the choice was also a potential interference with FMLA rights.
  4. The Court seemed to accept Ramji’s argument “that the FMLA notice provisions exist to ensure that employees ‘make informed decisions about leave.'”

Ultimately, the Eleventh Circuit decided that a jury should decide whether Ramji’s employer violated the FMLA.  Few employers want to place their fates in the hands of jury.  That fate, however, might have been avoided if the employer simply gave Ramji notice of her right to take twelve weeks of unpaid FMLA leave.

The lesson of the Ramji case is simple:  In most cases, employers should give notice of FMLA rights to employees who are injured on-the-job.  If an employer fails to provide notice, the consequences can be significant.

Medical Marijuana in Alabama: What Employers Need to Know

Robert C. Lockwood
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The Alabama Medical Cannabis Study Commission has drafted proposed legislation that would permit certain types of medical cannabis in Alabama.

The Alabama Medical Cannabis Study Commission is proposing legislation that could impact Alabama employers.  Here is a link to an article from AL.com discussing creation of the Commission and its work on medical marijuana: Commission Votes to Approve Medical Marijuana

Most notably, the Commission is opening the door to medical cannabis use, but its proposed legislation (which can be found here) takes great pains to educate the public that it does not condone “traditional” marijuana use.  For example, the synopsis of the proposed act (which is proposed for codification at Ala. Code §§ 20-2A-1 et seq.) says:  “this bill would prohibit the ingestion of any raw plant material, and would prohibit any smokeable or vaping product.”  To that end, the term “Medical Cannabis” in the legislation does not include:

  1.  Raw plant material.
  2. Any product administered by smoking, combustion, or vaping.
  3. A food product that has medical cannabis baked, mixed, or otherwise infused into the product such as cookies or candies.

Moreover, only a limited set of conditions will qualify for treatment by medical cannabis/marijuana, including: cancer; Crohn’s Disease; epilepsy; fibromyalgia; and, HIV/AIDs-related nausea or weight loss.

Section 20-2A-6 of the proposed legislation is designed to give businesses some comfort level with medical cannabis by stating that the proposed act does NOT :

 (1) Require an insurer, organization for managed care, health benefit plan, or any person who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the use of medical cannabis.
(2) Require any employer to permit or accommodate an employee’s possession or use of a medical cannabis product, to allow the use of medical cannabis in the workplace, or to modify the job or working conditions of an employee who engages in the use of medical cannabis that are based upon the reasonable business purposes of the employer.
(3) Prohibit an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s possession or use of medical cannabis.
(4) Prohibit an employer from establishing and enforcing a drug testing policy or from implementing a drug-free workforce program established in accordance with Article 13, commencing with Section 25-5-330, of Chapter 5 of Title 25.
(5) Interfere with any federal restrictions on employment, including, but not limited to, regulations adopted by the United States Department of Transportation in Title 49, Code of Federal Regulations.
(6) Permit an individual to commence a cause of action against an employer for refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment related to use of medical cannabis.
(7) Require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the use of medical cannabis.

Section 6 above is good for Alabama employers, because its says that they cannot be sued for taking an adverse job action (like termination) against an employee because of their use of legal, medical marijuana.  Nevertheless, Section 2 raises some questions for me.  The first part of that section says that employers are not required to accommodate an employee’s use of medical cannabis.  In other words, employers don’t have to allow employees to use medical marijuana on-the-job.  But, the very final phrase of that section tacks-on the words: “that are based upon the reasonable business purposes of the employer.” I’m not sure what the purpose of that phrase was intended to be.  It’s possible, however, that somebody could argue that employer are required to allow medical cannabis on the job, unless they can demonstrate a “reasonable business purpose” for prohibiting its use.  Hopefully, this phrase will be cleaned-up in the legislative process.

Finally, the legislation would also alter Alabama’s Workers Compensation Act:

An employee who is injured or killed while using medical cannabis is ineligible to receive any compensation under Chapter 5 of Title 25, Code of Alabama 1975, if the injury or death was caused by an action or inaction of the employee, even if the employee was in full compliance with Chapter 2A of Title 20, Code of Alabama 1975, at the time of injury or death.

Potentially, that section makes it more difficult for users of legal, medical cannabis to recover workers’ compensation benefits than users of illegal drugs.  Alabama Code Section 25-5-51 currently provides: “no compensation shall be allowed for an injury or death caused by … an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs.”  Under that law, an employer attempting to deny workers’ compensation benefits must show that an employee was intoxicated and that the intoxication caused the accident in question.  Under the Medical Cannabis Commission’s legislation, employers would not be required to prove intoxication.  Instead, if an employee is prescribed medical cannabis and suffers an injury caused by the employee’s “action or inaction,” benefits could be denied.

The Alabama Legislature returns to session on February 4, 2020.  This proposed legislation will unquestionably be one of the hot topics of that session.

Employers: Don’t Get Dragged Into the Wrong Venue in Alabama

Robert C. Lockwood
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Some venues are better than others for Alabama employers.

In Alabama, some counties, and their court systems, are more employer-friendly than others.  That observation is a broad generalization backed-up by experience.  For example, if you conducted a poll of attorneys who represent employers, most would probably prefer to defend a case in Madison County rather than Lee County.  Therefore, the location of a lawsuit (known by the legal term of “venue”) is an important consideration for employers.

The Mercedes-Benz plant in Tuscaloosa County recently helped to establish a more employer-friendly venue rule for Alabama. See Ex parte Mercedes-Benz U.S. International, Inc., No. 1170623, 2019 WL 101144 (Ala. Jan. 4, 2009).  In that case, an employee suffered an on-the-job injury at the Mercedes plant in Vance, which is located in Tuscaloosa County.  He sued for workers’ compensation benefits in his home county, Jefferson County.  Mercedes wanted the case to proceed in its home county and filed a motion to change venue to Tuscaloosa County.

Alabama’s venue rules provide that an employee/plaintiff can sue a corporation in his home county “if such corporation does business by agent in the county of the plaintiff’s residence.”  The Mercedes plant purchases parts used in manufacturing automobiles from multiple suppliers located in Jefferson County.  Therefore, the employee claimed that Mercedes “does business” in Jefferson County when it purchases parts there.  The trial court in Jefferson County agreed and refused to transfer the case to Tuscaloosa County.

Mercedes immediately requested review by the Alabama Supreme Court.  A previous decision from that Court, Ex parte Scott Bridge Co., 834 So.2d 79 (Ala. 2002), held that a bridge company purchasing parts, tools and equipment for bridge building could be sued in Chambers County, where it purchased those items, even if it was not building a bridge in Chambers County.  Thus, Scott Bridge appeared to support the employee’s contention that Mercedes’ purchase of parts for automobile manufacturing in Jefferson County could support venue there.

The Alabama Supreme Court overruled Scott Bridge and held that “[t]he regular purchasing of parts or materials from a supplier located in a certain county, by itself, does not constitute ‘[doing] business by agent’ in that county ….”  In Mercedes’ case, the Court found that the purchase of supplies was “merely incident” to its business, and that Mercedes “is not exercising a business function for which it was created, i.e., manufacturing automobiles [in Jefferson County].”

The Court did not provide us with a clear rule for determining venue in future cases.  Nevertheless, it is clear that the analysis will focus on whether a corporation’s acts in a county are “merely incident” to business or part of the “a  business function for which it was created.”  That analysis is more employer-friendly and will narrow the number of counties in which any particular lawsuit can be filed.

 

Can Employees Assaulted On The Job Get Workers Compensation?

Robert C. Lockwood
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The Alabama Workers’ Compensation Act covers assaults on employees, if the assault is the result of the victim’s status as an employee.

An employee assaulted on-the-job is entitled to benefits under the Alabama Workers’ Compensation Act if the assault occurs “because of his or her status as an employee or because of his or her employment.”  Lawler and Cole v. Cole, No. 2170162, 2018 WL 3406880 (Ala. Civ. App. Jul. 13, 2018).  The Alabama Court of Civil Appeals reached that decision in a case involving the tragic murder of an accountant.

Linda Cole was the long-time accountant for Jimmy Dale Cooper.  In 2007 or 2008, Cooper began to be audited for sales tax issues, and he ceased to be a client of Ms. Cole.  Those sales tax issues were not resolved in Mr. Cooper’s favor.  It appears that Mr. Cooper may have suffered from mental illness and blamed his tax issues on a number of people, including the accountant he employed after Ms. Cole, his attorney, and a former business partner.  On February 10, 2016, he held the attorney hostage and forced the attorney to invite the former business partner to his office.  While holding the attorney hostage, Cooper told the attorney that he blamed Ms. Cole for his tax problems.  Cooper tried to shoot the former business partner, and his current accountant.  Cooper then went to Ms. Cole’s office and confronted her.  He told her: “You have f***** my taxes up for the last time.”  Ms. Cole responded: “Jimmy, please don’t do this” and “I will help you, we will do what we can to fix … this mess, but I will help you.”   Cooper then shot and killed Ms. Cole.

The insurance company for Ms. Cole’s employer declined to pay workers’ compensation benefits related to the incident, so Ms. Cole’s widow file suit.  A trial court in Marion County found that the assault was covered by the Workers’ Compensation Act, and the insurance company appealed.

Under the Workers’ Compensation Act, benefits are provided only if an employee suffers an “injury” that arises out of or in the course of employment.  And, the Act provides that “[i]njury does not include an injury caused by the act of a third person … intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment.”  Ala. Code §25-5-1(9).  The Court of Civil Appeals interpreted that language to mean what it says:  “an intentional assault does not arise out of the employment if it is committed upon an employee because of reasons personal to the employee and not because of his or her status as an employee or because of his or her employment.”

The Court focused on “whether the rational mind can trace the assault on the employee to her status as an employee or because of her employment as opposed to some personal characteristic of the employee.”  The Court relied upon the comments made by Mr. Cooper and Ms. Cole to find that her murder occurred because of her employment as an accountant.

The Court of Civil Appeals also rejected two arguments by the insurance company.  First, the company argued that the assault was not compensable because there was no evidence that Ms. Cole actually caused Mr. Cooper’s tax problems.  But, the court found the issue was not whether she actually caused the problems, but whether she was attacked “because of her status as his former accountant and because of her employment.”  The insurance company also argued that Cooper’s assault was a “personal attack because of the long passage of time since the professional relationship between Cooper and the employee ended. ”  Nevertheless, the court focused on whether there was a “personal” or work-related dispute, and concluded the “undisputed evidence indicates that, at all times, Cooper’s grievance with the employee remained rooted in their working, not personal, relationship.”

Workers’ Comp: A Replacement Machine Is Not a “Safety Device”

Robert C. Lockwood
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The Alabama Supreme Court held that failure to install a replacement machine is not equivalent to removal of a “safety device.”

Alabama’s Workers’ Compensation Act provides employers with an interesting trade-off.  Employees who are injured on the job are entitled to have their medical bills paid by the employer and receive compensation for any resulting disability.  But, the amount of disability benefits are specifically set-out and limited by the Act.  Workers’ Compensation is a no-fault system.  If an employee is injured, he or she is entitled to benefits.  Here’s the trade-0ff.  In the vast majority of cases, the Workers’ Compensation Act prohibits employees from suing their employer for negligence, wantonness or punitive damages.  In short, the Workers’ Compensation Act makes it easier for employees to recover for their injuries, but limits the ability of employees to sue their employers and the amount they can recover.

Of course, there are always exceptions to any law.  The Workers’ Compensation Act also recognizes a limited set of cases in which the employee can sue his or her co-employees for punitive damages.  If a co-employee engages in “willful conduct” that causes injury to another employee, the co-employee can be sued.  Generally, the Act recognizes four types of “willful conduct”:  (1) acting with a purpose, intent or design to injure another; (2) willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; (3) intoxication that causes injury or death of a co-employee; and, (4) willful and intentional violation of a specific written safety rule of the employer after written notice.

Over the years, employees have attempted to expand the reach of those four examples of “willful conduct.”  Last week, the Alabama Supreme Court rejected such an attempt in Saarinen v. Hall, No. 1160066, 2017 WL 3821732 (Ala. Sep. 1, 2017).  In that case, Louis Hall was injured by a power saw, which was manufactured with a guard that was insufficient to protect Hall.  At least a month before he was injured, his employer purchased a replacement saw with a better guard from  a different manufacturer.  But, the replacement saw was not installed because his employer was too busy to change out the saws.

Hall injured his hand on the saw with the insufficient guard, and then sued his supervisors for “willful conduct.”  Hall claimed that their failure to install the new saw was equivalent to the willful and intentional removal of a safety guard.  The Alabama Supreme Court rejected that argument:  “Under the facts in this case, the failure to install another, presumably safer, saw that was present on the premises but that had not been put into operation and that was manufactured by a different manufacturer than the saw that injured the plaintiff is not the equivalent of the removal of a safety guard so as to constitute willful conduct ….”  Saarinen, 2017 WL 3821732 at *3.  Interestingly, the Supreme Court expressly refused to decide whether the failure to install a replacement machine manufactured by the same manufacturer might be equivalent to removal of a safety device.

 

Cell Phones and Computers Increase Workers’ Compensation Risks

Robert C. Lockwood
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Cell phones and computers can increase the possibility of liability under the Alabama Workers’ Compensation Act

Alabama employers who provide employees with cell phones and laptop computers are increasing their exposure to claims for benefits under the Alabama Workers’ Compensation Act.  See Hospice Family Care v. Allen, No. 2140961, 2016 WL 3223297 (Ala. Civ. App. Jun. 10, 2016).  Suzanne Allen was a hospice nurse who was required to drive around North Alabama treating patients. Her employer did not provide a car, but paid mileage on her personal vehicle.  The employer also provided Ms. Allen with a cell phone and laptop computer.  Ms. Allen’s work schedule was from 8:00 a.m. to 4:30 p.m., but her employer encouraged her to go home after seeing her last patient, rather than returning to the office each day.  Ms. Allen was killed while driving home on February 3, 2014 at 3:46 p.m., when her car was struck by a vehicle in the wrong lane.

Courts in Alabama usually follow the “going and coming rule.”  Under that rule, the Alabama Workers’ Compensation Act generally does not cover an accident which occurs while a worker is traveling on a public road while going to or coming form work.  Thus, the employer in Hospice Family Care argued that Ms. Allen’s accident was not covered by the Workers’ Compensation Act, because she was unquestionably travelling home.

Based upon the facts of the case, however, a trial court and the Court of Civil Appeals found that Ms. Allen’s accident was covered.  In particular, the court noted that Ms. Allen was provided a laptop computer and cellphone and she regularly worked on patient charts for two hours after arriving home.  As the court put it, “nurses were encouraged to go home to complete their required tasks.”  Because Ms. Allen was “going home to complete a required task,” the Court found that her drive home was in the furtherance of the business of Hospice Family Care and, therefore covered by the Workers’ Compensation Act.

Unquestionably, technology provides a great benefit to all employers.  With that benefit, however, comes additional risks.  Hospice Family Care demonstrates one of those risks.  If employers encourage employees to work from home, and provide the technology to do so, then accidents that would not ordinarily be covered could potentially be subject to the Alabama Workers’ Compensation Act.

The Dangers of Christmas Hams And Other Workplace Holiday Issues

Robert C. Lockwood
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Christmas is only three days away.  So, I decided to provide a review of three somewhat amusing cases in Alabama involving the interplay of the holidays and the workplace.

Don’t Give Employees Heavy Christmas Hams

Many employers give Christmas hams to employees.  Be warned:  if the ham is too heavy you might wind up paying workers’ compensation.  See Moesch v. Baldwin County Elec. Memb. Corp., 479 So.2d 1271 (Ala. Civ. App. 1985).  In Moesch, the employee injured her back at the end of the work day, when she picked up a 20-pound Christmas ham given by her employer.  The Court found that giving Christmas hams “would tend to boost the morale of employees, which would be beneficial to defendant.”  Moesch, 479 So.2d at 1273.  As a result, the court found that the employee’s injury “arose out of and in the course of” her employment, entitling her to workers’ compensation benefits.

It’s OK to Allow Dancing at Christmas Parties

While ham-based injuries appear to be compensable, dance injuries are not.  See Anderson v. Custom Caterers, Inc., 185 So.2d 383 (Ala. 1966).  In Anderson, an employee was injured as a result of a fall she sustained while dancing at a Christmas party.  The party was held at the employer’s place of business and alcohol was served.  The employee argued, like the employee in Moesch, that the employer received a benefit from the morale boost to employees.  Nevertheless, the Court found that the injury did not arise out of or in the course of employment, and the employee was not entitled to workers compensation.

Holiday Pay Can Save You From an Unemployment Claim

In Etowah County, a steel foundry closed for two weeks over the holidays.  A collective bargaining agreement provided that employees received “holiday pay” and were paid a full day’s wage for Christmas Day and New Years day, even though the foundry was closed.  Despite that generosity, employees claimed that they were unemployed during the two-week closure and sought unemployment benefits.  See Autwell v. State Dept. of Indus. Rel., 249 So.2d 625 (Ala. Civ. App.)  Nevertheless, they could only be considered unemployed if they did not receive “wages” as defined by the unemployment compensation statute.  The Autwell court found that the holiday pay was sufficient “wages” and affirmed denial of the claim for benefits.

 

Merry Christmas and Happy New Year!