Monday, September 14, 2015

A Workers Comp Claim Waiting to Happen

There are laws that prevent discrimination. Florida has a statute that prevents firing

Florida Statute 440.205 is titled "coercion of employee" and it is fairly brief:

"440.205 Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law."

There is also a paragraph in 440.105, titled "prohibited activities." This section is also brief, it says it is a first degree misdemeanor for "any employer to knowingly:"

"2. Discharge or refuse to hire an employee or job applicant because the employee or applicant has filed a claim for benefits under this chapter."

The language in 440.205 is related to employers and employees. The language in 440.105 is broader, extending to "employee or applicant."

There is also a federal law called the Americans with Disabilities Act, of the "ADA." That law "prohibits discrimination on the basis of disability." Disability is defined. A person with a disability is a:

"person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment."

The subject was recently brought to mind by a Tennessee Supreme Court decision reported in the Lebanon Democrat. The headline read "Lebanon woman loses appeal to get her job back."

This September 2015 story says the Tennessee Court "ruled that an employer can refuse to hire a job applicant who has filed or is likely to file a workers’ comp claim." Ms. Yardley "worked as a housekeeping aide for University Medical Center in Lebanon, was injured in 2010, and began receiving workers’ comp benefits." She returned to work "light-duty" and then was "released to full duty."

The employer later contracted with a company to provide housekeeping services at the medical center. The vendor apparently considered hiring some who formerly performed those services for as medical center employees, but did not hire Ms. Yardley. A vice president of the vendor service said in an email that he advised against hiring her because "she had been out on workers' comp" and that "hiring her would be a worker's comp claim waiting to happen."

Ms. Yardley sued in federal court. That Court "certified" a question of Tennessee law to the Tennessee Supreme Court. This is not uncommon. Certification of a state law question similarly happened recently in Florida in Morales v. Zenith Insurance. At the foundation of her allegations, employers should not be able to refuse to hire someone based on the potential or likelihood of some future incident or accident. She said that allowing a stigma to attach to workers' compensation recipients in this manner would have a chilling effect on employee's willingness to file for workers' compensation benefits. The vendor denied liability under the Tennessee workers' compensation law, noting that Ms. Yardley was not an employee.

The Tennessee Supreme Court concluded that the workers' compensation statute did not preclude the vendor from declining to hire Ms. Yarley. The Court said "in Tennessee, there is no statutory or common law cause of action for retaliatory failure to hire." The news story says that "states such as Florida, Louisiana, Maine and Massachusetts do have such laws," but the Court also noted that "a number of courts have expressly refused to recognize such claims," citing opinions from Kentucky, Washington, the 6th Circuit Court of Appeals interpreting Ohio law, the 10th Circuit Court of Appeals interpreting Oklahoma law, and the Northern District Court of Iowa.

The Tennessee Supreme Court answered the certified question and held that Tennessee law does not provide discrimination protection to someone who might have a future workers' compensation accident or claim, but it is unlawful in Tennessee to fire an employee for filing a workers' compensation claim. Stated otherwise, Tennessee employees are protected similarly to section 440.205, but not similarly to 440.105 (cited above).

The Lebanon Democrat story quotes some attorneys, and their thoughts on the potential for liability under the ADA. If Ms. Yardley, or some other job applicant like her, has "a physical or mental impairment." one "that substantially limits one or more major life activities," or if she "has a history or record of such an impairment," or if the employer perceives her "as having such an impairment" then the ADA might preclude the employer's decision not to hire.

There would be those who would question whether the facts in this case would fall within the coverage of the ADA. This might center on whether she was disabled or perceived as disabled. Is the perception of a susceptibility to future disability a disability?

In Marriage, the Law and Workers' Compensation, I explained that different states have their own laws. The decisions of one state do not necessarily control or even influence decisions of the courts in another state. The fact is that a state can provide the protection Ms. Yardley seeks. Florida does, and as the Tennessee Court noted, so do Louisiana, Maine and Massachusetts. But, just as states may protect job applicants, not all states do; the Court noted specifically that Iowa, Kentucky, Ohio, Oklahoma, and Washington do not provide such protection. I have wondered since where the other forty some jurisdictions stand on this.

This illustrates again the distinctions between state systems. Various differences between workers' compensation systems in America leads some to advocate a nationalization. They see a comfort and value in uniformity. I have noted in the past, that whether one advocates for or against uniformity might be dependent on what that uniform law provided.

If that uniform law did not include the prohibition against discrimination regarding job applicants (440.105), that is if the national law was like Tennessee's law, then the prohibition or protection of another state like Florida could be frustrated. In this regard Florida job applicants may have it better than Tennessee applicants. Uniformity might mean no job applicants anywhere have this protection, or could mean all job applicants everywhere have it.

It is worthy of consideration when nationalization is advocated in the abstract.

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