Tag Archives: ADA

Counter-point: It’s about time unions had a “moment”

Posted on by

A good union can shut down a lot of standard tricks from insurers/claims administrators/self-insureds in workers’ compensation claims

My fellow workplace law blogger, Cleveland-based management-side attorney-blogger Jon Hyman, has been raising the alarm about resurgent unionization drives in the wake of union victories at Amazon and Starbucks. His message to employers is that unions, long thought dead, are making a comeback.

One Jon’s fear and nightmare is another Jon’s hope and dream. In my 17 years of experience of representing employees in workers’ compensation and employment law cases, I can say it’s about time unions had a moment.

This is particularly true if an employee gets hurt on the job. Here are the major advantages of working union versus working non-union when you get hurt at work.

Job Security

Most union contracts require that an employer proves just or good cause to fire an employee. In practice this means proving some willful misconduct weighed against an employee’s work history and other mitigating factors. If and when push comes to shove, an employee has a good chance of overturning a termination in an arbitration proceeding.

In contrast,  a non-union or at-will employee can be fired at any time. Sure most states, including Nebraska, have laws against workers’ compensation retaliation. But are those laws effective? A study by the Texas Department of Insurance questions the effectiveness of those laws. They reported 52 percent of injured workers were fired more than six months after being hurt on the job.

I’m not surprised as there are all sorts of pro-management tricks and traps in retaliation cases. For example, courts are reluctant to find protected activity, but even if they do they are raising the burden of proof for causation. There are also judge-made rules like the managers rule that disqualify certain employees from claiming retaliation and the good old-fashioned “honest belief” rule that often leads courts to discount false reasons for employment decisions.

Of course an employee also has the burden of proof in a civil case against their employer, so employees are a playing field tilted toward the employer. A lot of judicial precedent just pours grease on that uphill climb.

Job Security, Part 2: Extended leave and employee-friendly return to work programs.

Union contracts typically give employees protections above and beyond what is afforded to at-will or non-union employees.

One reason many injured workers lose their jobs is that their recovery takes longer than the mandated 12 weeks of protected leave under the Family Medical Leave Act. (This is particularly true if employers/insurers drag their feet on approving medical care) Further, even if an employer and employee go through a good faith interactive process to accommodate a medical condition as required by the Americans with Disabilities Act (and that’s a big if) the employee isn’t guaranteed a job.

Union contracts often address these concerns through extended leave provisions, negotiating return to work and light duty issues and giving employees seniority rights that allow them to bid into easier jobs. Unions can also build solidarity among co-workers which makes it easier for workers to informally accommodate disabilities among themselves rather than engaging in paper-heavy and adversarial process with human resources and/or occupational health.

Good union v. meh union when it comes to workers comp.

I just read over a union contract on workers’ compensation and return to work for a client. Like 1980s NBA action, it is fantastic. Not only do they negotiate return to work and light duty, they bargain for the employer to cooperate in the claim and to not interfere or retaliate for members who get hurt on the job. Further they place some limits on the company contacting their members. In other words, if a company engages in a lot of standard insurance company/claims administrator/self-insured shenanigans, the company could be looking at arbitration.

Some unions punt on workers’ compensation under the theory that since they don’t negotiate for workers’ compensation, they will leave it to the company. I don’t like that philosophy. But even in a union where the union takes a hands-off position towards workers’ compensation, the employee still has more job security and better benefits.

Good insurance benefits for denied workers’ compensation cases

Insurers and claims administrators like denying workers’ compensations cases on questionable circumstances. This is particularly true in states like Nebraska where employees can’t sue their workers’ compensation insurer for bad faith. If an employee doesn’t have health insurance, then they will often have a hard time getting the medical evidence they need to prove up their workers’ compensation case by going to the doctor.

But union employers tend to have good health insurance that allows employees to get the medical treatment they need for their health and for their disputed workers’ compensation cases.  Sometimes employees can also collect private disability. Sure health insurance and disability liens can create hassles in resolving a workers’ compensation case, but getting health care and income far outweighs any inconvenience caused by dealing with potential liens at the end of a case.

Do non-union employers have similar benefits. Sometimes yes, but why do they have these types of benefits? Often times its to offer benefits similar to unionized plants. I see this frequently in meat packing in Nebraska. I litigate frequently against beef processing plants owned by Tyson in Lexington, Nebraska, Cargill in Schuyler and JBS in Grand Island. JBS and Cargill are union, Tyson isn’t. But Tyson’s benefits and even some of their leave policies are similar to the unionized plants. Tyson has to keep up with JBS and Cargill.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , , , .

Does implementation of OSHA COVID vaccine rule subtlety undermine workplace safety and signal broader move to weaken workplace rights in light of pandemic?

Posted on by

Bloomberg News reported that employees who refuse vaccinations under the proposed OSHA COVID vaccination rule could be forced to pay for COVID testing and masks.

While many liberals may cheer this result, former Obama administration OSHA official Jordan Barab blogged that forcing employees to pay for protective gear satisfies a long-standing demand from business.

Barab also pointed out that exempting companies that employ under 100 workers from the vaccine rule is unprecedented for OSHA. OSHA safety rules typically apply to all employers regardless of size.

While OSHA fines could increase as part of the reconciliation bill, OSHA’s proposals to shift protective gear costs onto employees and exempt small employers from  is a disturbing trend. Barab described them as a “camels nose under the tent” for business interests.

I agree with Barab, but I have some other reasons why I don’t like how the proposed vaccine rule could be implemented by OSHA.

Effects on workers compensation?

Like OSHA standards, workers compensation laws apply broadly to employers regardless of size. But if smaller employers are exempted from OSHA requirements, these employers may ask why they are required to carry workers compensation insurance.  OSHA regulations and workers compensation laws both regulate workplace safety. If OSHA concedes their regulations are too burdensome for small employers, it could be hard to convince state legislators that workers compensation laws aren’t overly burdensome for smaller employers.

Legal backlash against COVID denialism

Back in August 2020, I wrote about how I thought backlash against COVID deniers could build support to weaken laws that protect employees. The proposed implementation of the OSHA vaccination rule is one example of this phenomenon.

The Supreme Court will hear a challenge to the Rehabilitation Act filed by CVS Pharmacy that could end up substantially undermining the Americans with Disabilities Act. Business wanted to weaken the ADA before the pandemic. Some challenges to vaccine mandates are likely to come under the ADA. Decisions in those cases may accelerate the undermining of the ADA desired by business interests before the pandemic.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , .

The legal importance of making a reasonable effort to maintain employment in a toxic or dangerous workplace

Posted on by

Good communication with your employer is common sense and it can preserve your rights to bring claims against bad employers even if you quit your job

The forced quit or constructive discharge case

The law gives employees the right to sue employers for forced quits or constructive discharge, but these cases are even harder to win that typical wrongful termination cases.

In order to win a constructive discharge case, the employee needs to show an intolerable work environment and that they made reasonable efforts to maintain employment. From what I see, even if employees can show an intolerable work environment, which is very difficult, they get tripped up by the reasonable efforts to maintain employment requirement.

So, how does an employee show they made reasonable efforts to maintain employment?

One good way to look at what courts consider to be an acceptable level of attempted dispute resolution is to look at the requirements courts have for lawyers involved in disputes about pre-trial investigation or discovery. Before a court will get involved in one of these disputes, they need to see evidence that the lawyers had real discussions about the dispute. Obviously courts want to see documentation in the forms of emails, but they also generally want to see evidence that the parties met or spoke over the phone about the problems.

I think courts apply a similar standard when judging whether an employee made reasonable efforts to maintain their employment. In the era of smart phones, I think courts have an expectation that they will see text messages and or emails documenting discussions with employers.

But courts also know that people can miss emails or texts, so they want to see evidence of phone or an in-person communication. They want to see written and verbal communication attempts. Lawyers informally call this the belt-and-suspender approach.

But even if an employee doesn’t quit, almost all employment laws require employees to communicate with their employers about problems in the workplace. If you have a harassment or discrimination case, employers must be given an opportunity to take remedial action. If you have a disability discrimination or work injury claim, generally you need to work with your employer to accommodate the injury or condition. Employees claiming unemployment benefits for a quit also need to show a reasonable effort to maintain employment in Nebraska.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , .

What the new OSHA rule on vaccinations means for workers’ compensation and employment law?

Posted on by

President Biden stated last week that the Occupational Health and Safety Administration (OSHA) will implement a rule that employers with more than 100 employees will be subject to fines if they do not require COVID vaccinations or test employees for COVID on a weekly basis.

The new mandate raises many issues about workplace law that I touch on below:

Workers’ compensation: Employees who are injured through employer-required testing or vaccination would clearly be covered by workers’ compensation. In  order for an injury to be covered by workers’ compensation, an employee needs to be doing something in the course of their employment duties for the benefit of their employer.

Before mandated vaccinations and testing, maybe employers could argue that COVID testing and vaccinations injuries weren’t covered by workers compensation. But mandates firmly shut the door on what I think is a semi-specious argument.

Workers who suffer a reaction from a vaccine aren’t limited to workers’ compensation. They have one year to make a claim against a federal vaccine fund. But employers who pay workers compensation benefits for a vaccine may claim repayment or subrogation from payment from a vaccine fund.

Whistleblower: OSHA will likely rely on whistleblowers to enforce the rule. While there is no general federal right for an employee to sue their employer for retaliating against them for not complying with the mandate, Nebraska has a general whistleblower law that gives employees that right. An employee in Nebraska who was retaliated against for reporting non-compliance with the vaccine mandate has 300 days to either file a charge with the Nebraska Equal Opportunity Commission or file directly in state court.

Workers in certain industries could also have a federal right to sue their employer for not enforcing vaccine and testing requirements.

Americans with Disabilities Act: (ADA) The new employer-mandate still gives some employees the right to opt out of vaccinations under the Americans with Disabilities Act. Vaccine mandates have been part of health care employment for years. Those employees who were exempted from vaccine requirements previously still should be exempted from the new mandate

But as more workplaces are covered by vaccine mandates, I would expect more employees who try to claim exemptions. I would anticipate courts aren’t going to be terribly sympathetic to most of these claims barring a strong medically-related reason for vaccine refusal.

Wage and hour law: The new mandate gives employees paid leave for vaccination side effects.  The Fair Labor Standards Act (FLSA) also requires that employers pay employees for time spent on employer-ordered medical care. I anticipate some litigation arising out of this law – particularly if employers force employees to get vaccinated or tested outside of regular work hours.

Is the mandate legal?  Fatima Hussein did a good write up on the issue for Bloomberg Legal. Per her article, the mandate is probably constitutional under the interstate commerce clause. But employers may have some grounds to challenge the rule because OSHA may have jumped the gun in implementing the rule without due process.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , .

Yes, your employer can require you to take the COVID-19 vaccine

Posted on by

Last week the United States Equal Employment Opportunity Commission (EEOC) affirmed that employers could require employees to receive the COVID-19 vaccine so long as they comply with the Americans with Disabilities Act and other anti-discrimination laws,

While most people were happy to receive COVID-19 vaccines, some can’t receive the vaccine because of either medical, religious reasons or pregnancy. Some just refuse to get vaccinated period.

So what options do employees who are unable or unwilling to take the vaccine have on the job?

On the flip side, do employees have legal protections against co-workers or employers who refuse to protect employees from the risk of COVID-19.

Employer-mandated vaccines

The health care industry has dealt with mandatory vaccinations in the context of the flu virus for years. In short, the accommodation, either for medical or religious reasons, was often to wear a mask.

Obviously, some employees refuse to wear masks. In fairness, the use of masks for flu prevention before the COVID-19 pandemic was questioned. There is also a strain of disinformation circulating on social media that goes along the lines of: I have a medical reason not to get vaccinated or wear a mask and under HIPPA no one can ask me for that reason. If they do ask, I can sue them. Another myth involved the 4th Amendment right to privacy which only applies to government and not private employers.

This is a blatant falsehood. Anytime a worker is asking for an accommodation for medical condition, whether a work injury or personal injury, the employee gives up a fair amount of privacy as to that medical condition. Yes, employers are required to reasonably accommodate disabilities under the Americans with Disabilities Act. But in order to ask for a reasonable accommodation an employee often needs to share detailed medical information with their employer.

So in short, if you refuse an employer request to take a vaccine, you need a good reasons and should be able to substantiate it and share that reason with your employer.

I am pro-vaccine. I also believe vaccination policy is a workplace safety issue for reasons explained below. But I feel some sympathy with those subjected to mandatory vaccines at work. Throughout the pandemic, business has denied liability for COVID-19 spread in the workplace. But if the reasons for mandatory vaccinations is employee and customer safety, how can business turn around and argue that they aren’t liable for COVID exposure in the workplace? It seems like the contradiction can be reconciled through employers desire to exercise dictatorial control over their employees in the workplace.

What about workplace safety

This post my seem like I’m being overly sympathetic to COVID deniers and anti-maskers. I’m not. I am very disturbed that these types have taken to social media to attack former OSHA deputy assistant secretary, Jordan Barab, for raising serious concerns about the lack of OSHA guidance in retail workplaces in light of the latest CDC guidance that states vaccinated people can go largely to unmasked indoors.

Workers who are still concerned about COVID-19 exposure are in a difficult spot. While workers in certain industries can sue employers directly for safety violations, workers in the retail industry cannot. They need to rely on state law claims if they want to take direct action. I think one good idea for legislation would be to create a whistleblower act for retail workers.

OSHA is starting to sue employers for retaliating against employees, but those suits are just now starting well over a year into the pandemic. While it’s good that OSHA is starting to bring cases on behalf of employers, OSHA only brings suits in a small number of cases where retaliation is alleged.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , .

Hurt by (and/or fired for) “violating” your work restrictions

Posted on by

Damned if you do, damned if you don’t. That’s the dilemma for many injured workers under doctor-given work restrictions.

Injured workers are damned by being subject to discipline if they refuse to work above their restrictions, but they can also be disciplined for doing work “above” their restrictions.

Sometimes “violating” work restrictions can even lead to workers’ compensation benefits being denied.

I thought about this topic after I read a blog post by Thomas Robinson involving a Tennessee worker who hurt himself lifting 29 pounds when his permanent restrictions were 25 pounds. Fortunately, the Tennessee Supreme Court stated that in that case that was not sufficient grounds to deny benefits.

But it “violating” work restrictions can be grounds for denying workers compensation benefits in Nebraska in certain circumstances. Primarily, if an injured worker misrepresents their old injury to a new employer.

Misrepresentation as a defense to paying workers compensation benefits in Nebraska

In Nebraska, an employer can deny benefits if an employee misrepresents their work restrictions in an employment application and that misrepresentation leads to the work injury. I think this law has to be interpreted in combination with ADA and similar disability discrimination state laws. I think checking the box “yes” on employment application of whether you can do a job with or without reasonable accommodation shouldn’t be enough to sustain the misrepresentation defense. But not disclosing an old injury in a post-hire physical or health assessment is stronger evidence in my view.

Some of the more creative minds on the management side argue that concealing an old injury from an employer is willful negligence by an employee. Willful negligence is also grounds to deny workers’ compensation benefits. The Tennessee decision more or less rejected that argument and would be good persuasive authority on the issue.

Fired for violating work restrictions

Can an employer fire you “violating” work restrictions? It depends on the circumstances. If you’re on a 10 pound restriction and you get caught doing cross-fit, I would say yes. But a case where you lift 29 pounds with a 25 pound restriction is a closer call. It’s unlawful to fire some in Nebraska, and most other states, for filing a workers’ compensation claim. Firing someone for a petty and unintentional “violation” of work restrictions would seem suspect and could infer that the workers’ compensation claim was the reason they were fired.

Why I put quote marks around “violations” of work restrictions.

I’m not putting quote marks arounds “violating work restrictions” just to be funny. Maybe I need to explain the joke. Anyone who knows anything about workers’ compensation and is being honest, knows that work restrictions are just an estimate. Even restrictions from a valid Functional Capacity Evaluation are more or less estimates of work abilities.

But what if an employee is fired for exceeding work restrictions that weren’t disclosed?

Fired for concealing work restrictions?

I think these are close cases. As a plaintiff’s lawyer, I would argue that someone who was fired not disclosing a work injury still has a retaliation claim. After all, but for the employee filing a workers’ compensation case, the employer would not have discovered the concealment and fired the employee. Maybe that seems like an overly technical argument, but does the argument at least shift the burden on to the employer to argue an equitable defense like laches or unclean hands? I don’t know the answer to that question, but if there is other evidence of retaliatory motive then concealing an old work injury may not be a lawful reason to terminate an employee.

Don’t risk getting fired

However, as an employee you don’t want to take the risk. The ADA requires that employers attempt to work with you to accommodate a disability. If you are concerned about returning to work after an injury, don’t conceal old injuries if they could reasonably impact your ability to do your job. Often time there are simple fixes that allow you to complete your job duties. The Job Accommodation Network has suggestions about how to accommodate disabilities. Try to use those resources and/or work with your co-workers to try to accommodate your disability. Unions are also a great resource for accommodating an injury, use them when they are available.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , , , .

The problems posed by mandatory workplace stretching and exercise

Posted on by

Many white-collar employees exercise at the beginning of the day before going to work. But many blue-collar workers are required by their employers to exercise or stretch at the beginning of their shifts.

In my view, required workplace stretching or exercises creates many issues in workers’ compensation and employment law.

Hurt while stretching at work

If a worker is injured while doing employer-mandated exercises, that injury would be covered by workers compensation. The deeper issue about employer-mandated stretching and exercise is why employers mandate it in the first place. Stretching is thought to reduce the risk of musculoskeletal injuries which would be covered by workers’ compensation. But research is not entirely clear as to whether stretching  reduces the risk of injury in the workplace.



Workplace stretching, ergonomics and wellness programs

Advocates of workplace stretching state that stretching is just one part of injury prevention. Employers also need to focus on ergonomics and other preventative measures in order to prevent injury. But, ICYMI, employers are not required by law to implement ergonomics programs. In fact, OSHA is prohibited by law from even considering mandatory ergonomics thanks to the Congressional Review Act.

Workplace stretching supporters also support employers using early intervention to address musculoskeletal injuries. But many employers don’t follow the advice offered on workplace wellness blogs. I have many clients, particularly in the livestock and meatpacking industries, that complain about soreness from overuse injuries. The response is often less than supportive from management. They are told that pain is just part of the job.

Workplace exercise and stretching and the ADA

Workplace exercise programs raise an immediate concern for workers with physical disabilities. Sometimes disabled workers are unable to complete stretches or exercises because of their disability. A refusal of to do these stretches could be construed as a refusal of work duties, so employees may feel pressured to complete the exercises and risk injury.

In my opinion, the best practice for an employee faced with this situation would be to get a medical note excusing them from exercises or stretches or allowing a modification. In other words, an employee needs to attempt to seek a reasonable accommodation for their disability under the Americans with Disabilities Act. (ADA)

Sometimes employees can’t afford to go the doctor or can’t easily access medical care. I think an employee can still ask for an accommodation based off old restrictions or even on their own.  But to be blunt, employers don’t always take self-reported restrictions seriously. That is often the case with courts as well if those self-reported restrictions lack basis in the medical records.

In short, it may be difficult for an employee to avoid being fired for refusing to perform mandatory exercises or stretching. But if push comes to proverbial shove in litigation, an employer may be in a tough spot if they fire an employee for refusing to do exercises. Disability discrimination laws protect qualified employees who can perform the essential function of their job with or without accommodation. Arguably stretches or exercises would not be an essential function of a job.  This could be particularly true of an employee is able to do their job and or if the stretches have little to do with an employee’s job duties.

But litigation is time consuming and expensive. So an employee who is forced to do stretches that aggravate an old injury or health condition should try to work with a doctor and employer, if possible, to either get excused from the exercises or to get the exercises modified.

The ADA and wellness programs

The legal issues posed by mandatory stretching for injured and disabled employees reflects a more generalized concern about wellness programs under the ADA. Federal courts partially struck down an EEOC regulation about wellness programs as they discriminated against older and disabled workers. And like mandatory exercise and stretching, studies are inconclusive as to whether wellness programs benefit employees.

The presidential election and confirmation hearings for Amy Coney Barrett have focused attention on potential changes to federal regulatory agencies and the federal courts. Narratives about regulatory agencies and courts often pose Democrats as pro-worker and Republicans as anti-worker. But the EEOC enacted the wellness program regulation during the Obama administration as part of the Affordable Care Act. Conservatives often argue against deferring to regulations issued by executive agencies based on separation of powers arguments. But in this case, workers used a separation of powers argument to strike down an anti-worker policy.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , , , , .

Anti-masking social media hoaxes undermine ADA

Posted on by

Opponents of masking requirements cite the Americans with Disabilities Act (ADA) as a reason why masking requirements are illegal. One store in Lincoln is publicizing their no mask policy on these grounds.

Legal falsehoods about mask requirements were effectively debunked by an article in USA Today. I believe, for reasons that I will explain below, that these falsehoods about the ADA undermine the protections provided by the law. But this social media legal hoax contains a few kernels of truth about the ADA.

The first kernel of truth is that requiring protective gear can violate the ADA in some circumstances. The second kernel of truth is that one-size-fits-all policies in the workplace can violate the ADA.

But looking closer at these kernels of truth can help in understanding why the overall story is false.

Protective gear and the ADA

The hoax about masks and the ADA centers in the idea that not wearing a mask is a reasonable accommodation for a disability. But in order for requiring protective gear to violate the ADA it would have to interfere with the ability to perform an essential function of your job. In an employment law context, whether gear is excessive depends on the job.

In April a federal court in Nebraska ruled requiring an evidence technician to wear full protective gear at all times to protect against mold allergies could violate the ADA. Compare that set of facts with being required to wear a surgical mask for a 15-minute visit to the grocery store. Wearing full PPE gear for eight hours is completely different than wearing a cloth surgical mask for 15 minutes.

Other courts have allowed more uncomfortable gear requirements. At the end of July, the relatively worker-friendly 6th Circuit Court of Appeals found a trucking company could require an employee to wear a CPAP mask even if there was medical evidence the mask was ineffective without violating the ADA. Again, wearing a cloth mask for 15-20 minutes is a lot less cumbersome than sleeping tied to a CPAP machine.

The ADA and blanket requirements

The ADA tends to frown on one-size-fits-all policies. I think that’s part of the reason why employers have difficulty complying with the law. The ADA requires that reasonable accommodations be made for disabled people. But a reasonable accommodation doesn’t mean a preferred accommodation. I will assume for the sake of argument that some people would be unable to wear a surgical mask because of some disability. But in the context of a retail store, a customer who couldn’t wear a mask could request delivery or curb side pick-up.

The danger of the ADA anti-mask hoax

Big business has been crying out for exemptions from legal liability since the beginning of the pandemic. This gross misconception that business will be subjected to lawsuits for requiring masks could fuel support for limiting liability related to COVID-19. While liability limitations have been mostly supported by Republicans, the fact that mostly conservative leaning anti-maskers are invoking the ADA may lead centrist Democrats to support liability limitations about the ADA.

Social media hoaxes and tort reform

Back in 2015, I wrote about how a social media hoax involving the “Rome Statute” and Facebook. The point of the post was that social media hoaxes about the law generally serve to weaken the rights of consumers and employees. The ADA anti-masking hoax is similar. It is premised on the false assumption that business is at risk for excessive litigation. Even before the COVID pandemic, business interests were screaming out to weaken the ADA. Once that belief becomes widespread, lobbyists and law makers move to undercut legal remedies for those with legitimate grievances.

Empathy for the masked

I know first-hand that wearing a mask for extended length of time is uncomfortable. I know for employees working in jobs like nursing, manufacturing, food processing and warehousing that masks are even more uncomfortable. This post is not intended to downplay your discomfort. This post is intended to explain a hoax based incorrect assumptions about an important civil rights law.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , , .