March 29, 2024 The U.S. Department of Labor on Friday announced a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration compliance officer during an inspection of their workplace will be published in the Federal Register on Monday. The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule is “consistent with the law” and clarifies that workers may authorize another employee to serve as their representative or select a nonemployee, according to a statement. For a nonemployee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection, according to a statement. Read more

March 22, 2024   A Connecticut employer has the right to terminate an employee who is impaired by medical marijuana in the workplace.   The Connecticut Appellate Court on March 19 upheld the dismissal of a lawsuit brought against a nonprofit pre-school by a teaching assistant who used medical marijuana for treatment of her disability and was fired for violating the school’s drug-free workplace policy by showing up for work impaired.   The court ruled that even though Connecticut has a law permitting use of marijuana for medical purposes, employers still “may prohibit qualifying patients from being under its influence in the workplace.” According to the appellate court, employees making claims under Connecticut’s Palliative Use of Marijuana Act (PUMA) must show that they were terminated solely because the employee had a prescription for medical marijuana.   The court also affirmed the right of an employer to seek a drug test of an employee when the employer has a “reasonable suspicion” that an employee is violating its drug free policy.   Prescriptions Alyssa Bartolotta had a doctor’s prescriptions for Valium and medical marijuana as part of treatment for her epilepsy. She did not inform her employer, Human Resources of New Britain, Inc., of her epilepsy or her Valium or medical marijuana use until after incidents at work.   She told her employer about her epilepsy and Valium only after she had a seizure at work. Thereafter, the school made some accommodations for her including letting her leave for the day whenever she had a seizure and assigning her to a room where she would always be with another teacher.   The employer, however, declined her request to have the school nurse hold some doses of Valium on the premises for her in case she needed it. In denying her request, the school stressed its drug-free policy and that the part-time nurse was not authorized to administer medications. The school told her she could hold the Valium at work herself.   In an incident on January 2, 2019, after a fellow employee questioned her behavior at the school when she called a child by the wrong name, Bartolotta acknowledged that “her head was just not right” because she likely had ingested too much marijuana and the effects carried over into the workday. Her medical protocol called for her to take the drugs at 8 pm in the evening. Six days later she agreed to take a drug that ending up showing positive for Valium but negative for marijuana.   Termination After first suspending Bartolotta, then conducting an investigation that revealed concerns of several other employees, and obtaining the drug test, the school terminated Bartolotta. The school concluded that Bartolotta signed and was aware of the drug-free policy and violated that policy by showing for work in an impaired state, which she admitted in an interview. The school noted that Bartolotta did not disclose her medical marijuana use until an incident occurred and never requested an accommodation.   In terminating her, the school explained that her firing was not because of her epilepsy or her medical marijuana user status but for showing to work in an impaired state. Bartolotta said at the time that she understood the reason.   After the school’s grievance committee and board of directors both upheld her termination as proper, Bartolotta filed an employment discrimination complaint with the Commission on Human Rights and Opportunities. In her accompanying affidavit, Bartolotta alleged that the her employer ”terminated her employment because of her disability” and ”failed to accommodate her by prohibiting her from working while taking prescription medication for her disability.” The commission issued a release of jurisdiction over her complaint.   After that, Bartolotta sued Human Resources of New Britain, alleging violations of the state’s fair employment practices and medical malpractice laws, including unfair discrimination and wrongful termination because of her epilepsy disability and her status as a medical marijuana user, and illegal drug testing. A trial court found she had no case and awarded her employer summary judgment.   Now the appellate court has upheld the dismissal of her suit and the actions of her employer.   Clams Denied Bartolotta had signed an acknowledgment of the school’s drug free workplace policy. In her deposition testimony, she admitted that she was aware that her employment could be terminated if she came to work impaired. But in her deposition she maintained that she was not impaired when the incident occurred on January 2, and that taking medical marijuana ”does not make her impaired.” She further averred that the results of the drug test conducted six days after the January 2 incident proved that she didn’t come to work impaired.   In dismissing her complaint, the appellate court stressed that the state’s medical marijuana law contains language making clear that it shall not restrict an “employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”   The appellate court noted that the written disciplinary notice issued by school stated that, during an interview on January 8, Bartolotta admitted that she uses medical marijuana, did show up to work impaired, and she may be abusing it. In addition, during multiple phone calls with the school’s human resources director, she did not deny showing up to work impaired.   Noting that the employer’s notice concluded that her employment was being terminated because she ”failed to follow company policy and procedures” regarding drug and alcohol use in the workplace, the court dismissed her claims that she was fired because of her disability or her medical marijuana use for lack of evidence.   ‘Bald Assertion’ Bartolotta’s complaint stated that ”terminating an employee for using medication for a disability is the equivalent of terminating an employee because of her disability.” However, the court found she provided “no legal authority for that bald assertion, which runs contrary to the plain language” of the law.   Bartolotta also failed to provide any legal authority to support the proposition that she should have been allowed to use her medical marijuana during the workday or to appear at the preschool facility in an impaired state.   The court found that the school’s denial of Bartolotta’s requested accommodation regarding holding the Valium was reasonable, and that neither Bartolotta nor her doctor ever requested an accommodation for her medical marijuana use. In addition, the court said it is unclear what—if any—accommodation the school could make “short of allowing her to appear impaired in the workplace.”   Finally, the court found that in light of reports by other employees of her behavior and her own admission of showing up to work impaired, Human Resources of New Britain had the requisite “reasonable suspicion” under the state law to request a drug test.

March 11, 2024 On January 10, 2024, the U.S. Department of Labor published a final rule, effective March 11, 2024, revising the Department’s guidance on how to analyze who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). This final rule rescinds the Independent Contractor Status Under the Fair Labor Standards Act rule (2021 IC Rule), that was published on January 7, 2021 and replaces it with an analysis for determining employee or independent contractor status that is more consistent with the FLSA as interpreted by longstanding judicial precedent. The misclassification of employees as independent contractors may deny workers minimum wage, overtime pay, and other protections. This final rule will reduce the risk that employees are misclassified as independent contractors while providing a consistent approach for businesses that engage with individuals who are in business for themselves. Read more

March 11, 2024 Attorney fees in Florida workers’ compensation cases seem to be part of a story that will never end, and a state appeals court has added new life to the story with decisions that give support to both sides of the divide. In one long-awaited ruling, the 1st District Court of Appeals struck down a compensation judge’s decision that had slashed a claimant’s lawyer’s $805,000 fee by 90%. But other opinions by the same court last week dismissed requests to bar another comp judge from future cases because of his stinging excoriation of plaintiffs’ attorneys who had accepted large fees. Claimants’ lawyers said the cases highlight an apparent trend among some comp judges to knock down large fees – in keeping with the pro-business, pro-insurance-company political winds blowing through the state. Read More

March 6, 2024 A Florida court has ruled an employee working from home who was hurt when she tripped over her dog while reaching for a coffee cup in her kitchen was not entitled to workers’ compensation benefits because her injury did not “arise” out of her employment. The Case Tammitha Valcourt-Williams, a workers’ compensation claims adjuster for Sedgwick CMS, was allowed to work from her home. According to Valcourt-Williams, after working for three hours, she went downstairs for a cappuccino. As she reached for her cup, Valcourt-Williams said she fell over one of her two dogs and injured her knee, hip and shoulder.Because she had a work-from-home arrangement and because her fall occurred during working hours, Valcourt- Williams sought workers’ compensation benefits. Sedgwick denied the claim, contending Valcourt-Williams’ injuries did not arise out of her employment. Read More

March 6, 2024 BOSTON – Psychosocial factors can hamper recovery from lower-back pain and be a stronger cost driver than some catastrophic injuries, analysts with the Workers Compensation Research Institute said Tuesday. These risk factors, which include fear of pain due to activity, negative coping, job dissatisfaction, perceived injustice and stressful work, as well as family and support system issues, can negatively affect recovery time for workers comp claimants dealing with lower back injuries, researchers said during a panel discussion at the 2024 WCRI Issues & Research Conference. Researchers found a strong association between psychosocial risk factors and a longer duration of functional recovery after physical therapy care. Read More

March 5, 2024 The time between injury and physical therapy for workers in the workers compensation system continues to stall, according to a trends report released by MedRisk LLC. Using 10 years of data on coordinated care, comp services company MedRisk examined the lag time between injury and an injured worker’s first physical therapy appointment. It found that in 2013 26.2% of injured workers in need of therapy were seen within seven days. In 2013, that time increased by two percentage points to 28.2%. The so-called “speed-to-care” timing improved 28 days post-injury, with 60.7% of patients in 2023 receiving care by that time. In 2013, 60.7% of injured workers saw a physical therapist in that time frame. MedRisk said in its report that decreasing the time for appointments would provide better outcomes for injured workers. Read More

March 3, 2024 An investigation is underway after a worker at a golf cart manufacturer in Georgia was caught in a conveyor belt and fatally injured. Multiple news reports said a contract worker, Alyssa Drinkard, age 21, had dropped one or more of her Apple AirPod earbuds. When she attempted to retrieve them, she was caught by a chain and was trapped beneath the conveyor belt at the facility in Evans, Georgia. Maintenance personnel attempted to stop the machine, but it was too late to save the woman, who died at a local hospital, the Augusta Press and other news outlets reported. Rescue workers had to cut a metal frame on the machine to extricate Drinkard, a sheriff’s report indicated. An employee of the facility said that workers had previously been cautioned to avoid wearing jewelry and headphones, the newspaper reported. Apple, the maker of AirPod earbuds, warns in its user guide that “Using AirPods in some circumstances may distract you or impact your awareness of your surroundings…Always remain aware of your environment during use. Obey applicable laws and regulations on the use of headphones and earphones while operating a moving vehicle or bicycle, heavy machinery, or in other situations requiring attention to safety.” Read More

March 1, 2024 In the quest for safer workplaces, one change is steadily gaining momentum: the transition from ladders to stairs. From warehouses to construction sites, businesses are beginning to recognize the long-term benefits of installing stairs over ladders for routine and emergency access. This shift is not only about reducing accidents but also about enhancing efficiency and ensuring compliance with safety regulations. The Risk with Ladders Ladders have been a common fixture in workplaces for providing access to elevated platforms, storage areas, and maintenance spots. However, they pose significant risks. According to safety data, falls from ladders account for a substantial number of workplace injuries and fatalities every year. The primary concerns with ladder use include: ·       Instability: Ladders can be unstable, especially when not properly secured or used on uneven ground. ·       Falls: Missteps or loss of balance can lead to falls, with potentially severe consequences. ·       Overreaching: Workers often overreach while on a ladder, leading to falls or causing the ladder to tip over. ·       Carrying Tools: Transporting tools or materials while climbing can lead to loss of balance and subsequent falls. These risks contribute to a growing consensus among safety professionals that alternatives to ladders should be sought wherever possible. Read more