Issue 3 - 2003

In a recent federal court decision, an employer was found liable for sending an insufficient COBRA notification form. (Emilien v. Stull Technologies, Third Circuit, 2003.)

Marie Emilien ("Marie") was employed by Stull Technologies Corp. ("Stull"), a manufacturer of injection-molded closures. Marie was diagnosed with HIV and tuberculosis in 1996. On October 21, 1998, Marie was stricken while she was at work and was rushed to the hospital. Although Marie returned home after her hospitalization, she was never able to return to work. On October 30, 1998, Stull prepared a letter to Marie which it informed her that Stull had "separated" her employment as of October 21, 1998 (the date she was stricken). The October 30th letter also attempted to discharge Stull's duty to notify Marie that her medical insurance was ending and she would have to complete and return COBRA election forms if she wished to retain medical insurance protection.

The Court found that the notification of COBRA conversion coverage contained in the October 30th letter was inadequate. Specifically, the Court focused on the fact that the letter did not define the term "Qualifying Event." The Court noted that "it is highly unlikely that a lay person would understand the meaning of the term 'Qualifying Event' without an explanation of the term." Stull, thus, failed to "explain the circumstances which may result in disqualification or denial of loss of benefits" and do so "in a manner that is calculated to be understood by the average plan participant" as required by COBRA. Accordingly, the Court held that Stull was liable for Marie's healthcare costs.

This case reminds employers to ensure that COBRA Notices explain the circumstances which may result in disqualification or denial of loss of benefits and do so in a manner that is calculated to be understood by the average plan participant. The Department of Labor recently issued proposed regulations that implement the notice requirements of COBRA. Once these regulations are finalized, group health plans may need to make additional revisions to COBRA notices.

Compensable time is any time during which the employer exercises control over the employee. Such time includes non-commute travel time, time spent in employer mandated training, employer required meetings and pre- and post-liminary time preparing for or cleaning up after work. In a clever homage to Henry David Thoreau's warning to "beware of all enterprises that require new clothes," Circuit Judge Sidney R. Thomas delivered a federal opinion taking on the subject of whether "donning and doffing" protective wear constitutes compensable hours worked.

In Alvarez v. IBP, Inc., (9th Circuit, 2003) Gabriel Alvarez and his co-workers brought a class action suit against IBP, Inc. for alleging violations of the Fair Labor Standards Act for failing to compensate time spent donning and doffing protective gear. Alvarez and his co-workers are meat processors/packers for IBP, Inc., a large meat processing company. At IBP, Inc., meat packers' movements are strictly regulated from the time they report to work until the time they leave. Because they are working with raw meat, workers are required to wear hats, hairnets, goggles, earplugs, special boots, outer garments, gloves and other protective gear. Workers are allowed 30 minutes for lunch, during which time they are required to leave the raw meat area and remove all their protective gear. They must dress back into clean gear after lunch on their return to work. This donning and doffing necessarily impinged on the employees' 30 minute lunch period.

The Court decided that time spent donning and doffing of protective gear was compensable "hours worked" under Fair Labor Standards Act because the activity was necessary to principal work performed.

Employers who require their employees to don protective gear or other specialized uniforms should carefully analyze the amount of time spent donning and doffing protective gear or uniforms. If that time is more than a "moment," if the gear is necessary to the principal work performed and must be donned and doffed on the Employer's premises, then Employers may need to compensate employees during that time. Simpson, Garrity & Innes can assist you with this important analysis.

It has become a more common occurrence in the American workplace: An employee is overheard by co-employees making general threats of violence, including threatening to indiscriminately shoot fellow employees. Can the employer seek a protective injunction on behalf of an employee who is not specifically threatened, but who may be the logical target of the threats? A recent California court has answered this question in the affirmative.

USS-Posco Industries operates a tin mill in Pittsburg, California. At that site, a mill worker made numerous threats of general violence in the company lunchroom, overheard by other employees, including the following:

• "The day I tell you to report off, you better, because I'm going to come in gunning. I'll shut the door of the office and let them fly."
• • "The day you see me with a lunchbox, because I don't use one, get the ---- out of the way because there's going to be a ------- gun inside."
• "One of these days some ---- is going to piss me off and they are going to have to change the company's name from USS-Posco to USS- Columbine."
• "Don't let me get in trouble outside of this place cause I'd sure pay a visit to Posco to take care of some ---- before I go to jail."

The trial court later issued a three year injunction, finding clear and convincing evidence of credible threats of violence by the mill worker. The mill worker appealed, arguing (among other things) that since he never made specific threats of violence directed at the Department Manager on whose behalf the injunction was issued, the company could not obtain an injunction under § 527.8.

The Court of Appeals rejected the mill worker's argument. The Court found that while the Department Manager was not among the named targets of the mill worker, she certainly had objective reason to fear for her safety as it was she who instigated the disciplinary action that lead to the mill worker's suspension and termination. The Court held that "given the legislative intent to prevent workplace violence, it would indeed be absurd to read the statute in a way that would provide no protection against a threat to indiscriminately shoot employees on the premises. An employer may seek relief under Section 527 on behalf of any employee who is credibly threatened with unlawful violence, whether or not that employee is identified by the defendant."

Employers should take all threats of workplace violence seriously, and even generalized threats of violence may be the basis of a protective injunction pursuant to California law.

An employer can defend against a disability discrimination claim under the Americans with Disabilities Act ("ADA") by showing that the job applicant or employee poses a "direct threat" to the health or safety of individuals in the workplace, including a threat to the employee's own health. In a case against Chevron, a federal appeals court in California recently imposed an onerous burden on employers seeking to utilize the "direct threat" defense. (Echazabal v. Chevron, 9th Circuit, 2003)

Echazabal, a job applicant who had asymptomatic, chronic active Hepatitis C, was denied a job by Chevron in its Coker unit because Chevron believed that the applicant's liver might be damaged by exposure to the solvents and chemicals in the unit. Chevron, through consultation with its company physicians, determined that the solvents and chemicals in its Coker unit constituted a "direct threat" to the applicant's own health. Chevron did not hire the applicant and he subsequently filed suit under the ADA.

The issue for the Court was whether Chevron based its decision not to hire the applicant upon "a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence and upon an expressly individualized assessment of the individual's present ability to safely perform the essential functions of the job, reached after considering, among other things, the imminence of the risk and the severity of the harm portended."

Chevron relied on the testimony of two of its company physicians who examined the applicant. One of the physicians had special training in preventative medicine while the other physician was a generalist with no certification in any specialty. The Court decided that the conclusion of the two company physicians did not meet the stringent standard set forth above. The Court determined that in order to meet the high standard for establishing the "direct threat" defense, an employer must base its decision on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. Meeting this standard may require that the employer consult with a physician specializing in the medical condition at issue, rather than consulting a physician generalist. An employer must also conduct an "individualized assessment" of an applicant's ability to safely perform the essential functions of the job. This may entail considering information regarding the specific assessment of the position with respect to the specific medical diagnosis of the applicant. This may also involve considering all relevant information about the employee's past work history. In the Chevron case, the company apparently gave little weight to the fact that the applicant had previously held the job in question for another employer without any reported problems.

Chevron argued that by imposing such a high standard for demonstrating the "direct threat" defense, an employer must be aware of cutting edge medical research not generally known to or accepted within the medical community. The Court rejected this argument and held that the company's reliance on the advice of a generalist and an expert in preventative medicine in order to come to a conclusion about the applicant's liver problems did not meet the statute's requirement for proving the "direct threat" defense. "Before terminating an individual's livelihood, the ADA requires more."

Because of the complexities of the new Chevron decision, an employer seeking to refuse employment to an applicant based on the belief that the applicant may be a threat to himself or others, should consult with counsel before making the decision.