It’s news in and of itself when a story about workplace safety gets national attention. So in case you missed it, I want to draw more attention to the story Mike Elk reported in The Guardian about flight attendants at Delta Airlines suffering rashes, hair loss, shortness of breath and other symptoms they believe to caused by chemicals in their new uniforms.

The reporting was excellent and my summaries don’t do it justice – read the story for yourself. I am writing  to unpack the many legal issues this story raises.

Workers’ Compensation – I have never represented a client who suffered a work injury from wearing their uniform, but I have experience in representing employees who have suffered allergic reactions from substances encountered on the job. I wrote a post about the issues that can arise from mass mold exposure that ran in January. Thinking like a lawyer here, there are several issues that would come to mind in prosecuting this kind of case.

The first question would be jurisdiction. Like truck drivers, flight attendants work all over the country, so several states may have jurisdiction over their claim. (Delta flies out of both Lincoln and Omaha airports, so Nebraska may have jurisdiction over some of these claims) A lawyer would have to judge where to bring a claim based on various factors like benefits available to a worker and causation standards in a particular state.  An injured flight attendant may also be able to claim benefits in multiple states.

Third-Party Negligence – As reported in the story, flight attendants from other airlines have reported similar concerns about uniforms in the recent past. In my view the fact there have similar concerns about flight attendant uniforms in the past, means there could be colorable negligence case against the manufacturer of the uniforms – Land’s End.

Workers’ compensation benefits are limited by law, but in exchange for limited benefit employees can get benefits regardless of fault. If another party is responsible for the injury the injured worker can sue that party for damages that more completely compensate for an injury.

But if a third-party is responsible or partly responsible for a work injury and employee is compensated by that party, an employer who pays workers’ compensated has the right to be repaid  from those proceeds. Repayment rights, also called subrogation rights, can vary from state to state. State law can also vary on third-party case procedure and damages available in a negligence case.

Employment law issues

As reported, many flight attendants have been reluctant to report concerns over the uniform because of fear of retaliation. I am not sure that concerns over the uniform would be covered under the OSHA whistleblower laws. But reporting of unsafe conditions could be covered by state whistleblower laws. Many states also protect employees against retaliation for reporting a work injury ro claiming workers’ compensation. Again jurisdiction would be an important concern.

The article mentioned Delta requiring attendants who did not want to wear the uniform to fill out a reasonable accommodation request under the Americans with Disabilities Act. I believe requiring such formality may run afoul of the Americans with Disabilities Act (ADA).

Last year, a federal court in Nebraska ruled a Wal-Mart employee could proceed to trial on an ADA claim because he didn’t want to wear a long butcher coat that got stuck in his wheelchair. The individual in that case needed a wheelchair because of a disability. The court believed the long butcher coat could cause a safety hazard. The court believed there some evidence the employer didn’t accomodate disability because of failure to allow the employee to alter his uniform. The similarity in the two cases is that when a uniform or part of uniform is a problem for an employee, it can be an easy fix for an employee – change the uniform. Many Delta flight attendants are requesting to wear the old, non-toxic, uniform. That would be simple fix, but that simple fix could be complicated by the formal, time consuming and paperwork heavy accomodation processes required by some employers.

I also believe that sex discrimination could be an issue if women are forced to wear toxic uniforms while male employees don’t have the same requirement.

Collective and class action issues

A theme running throughout the story, is that since Delta is a non-union employer many employees are afraid to speak up about the uniform. I find those fears about retaliation in a non-union workplace to be valid. I also think that many of issues relating to employment law and defective manufacturing may have to be addressed in class action claims since they could affect so many employees.

Support Mike Elk and Pay Report

Many law blog posts end with a pitch. My pitch is to support the excellent reporting and writing by Mike Elk at Payday Report. This isn’t the first time I’ve cited his reporting on my blog. His reporting has changd how I think about some workplace issues. Mike covers the kind of stories that need to be covered and understands the importance of civil rights, safety and labor laws in the workplace. He deserves your support.