Miami Employment Lawyer Blog

Many clients have come into our Miami office after being injured on the job and claiming that their employer does not want to put them back to work. The employee usually takes time off to care for the injury, but then is either terminated or not returned back to work. That may constitute unlawful retaliation under Section 440.205 of the Florida Statutes and, as the U.S. Equal Employment Opportunity ("EEOC") has recently stated, it may also constitute a violation of the Americans with Disabilities Act of 1990 ("ADA").

The EEOC has recently issued a guidance memorandum regarding the interplay between state worker's compensation laws and the ADA. One of the issues addressed by the EEOC is whether an employer must reassign an employee who is injured on the job and can no longer perform the essential functions of his or her job because the injury resulted in a disability under the ADA.

As an example, the EEOC cites the case where a maintenance worker fractures his or her legs in a workplace accident, takes six months' leave to recuperate, and returns to work with medical restrictions because his or her legs have become fragile due to the injury. The employee's physician states that the employee can return to work but cannot walk or stand for more than short periods of time. The EEOC states that in this case, the employer is required to provide a reasonable accommodation unless there is no accommodation that will lower the risk of harm. (e.g., there is a risk of substantial harm that cannot be eliminated or reduced with a reasonable accommodation).

However, if there is no reasonable accommodation that can be provided that will lower the risk of harm, then in that case the employer is required to reassign the employee unless it would pose an undue hardship on the employer (e.g., a significant difficulty or expense). The employer must reassign him/her to an equivalent vacant position for which s/he is qualified, absent undue hardship. If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which s/he is qualified, absent undue hardship. Failure to follow these procedures may be a violation of the ADA.

Continue reading "EEOC Issues Guidance Regarding Work-Related Injuries and an Employer's Duty to Accommodate Employees under the American's with Disabilities Act" »

Employees who are injured on the job and placed on lifting or other restrictions may find relief in the 2008 Amendments to the Americans with Disabilities Act (the "Amendments to the ADA"), which became law on January 1, 2009. Under the Amendments to the ADA, a person with a 20-pound lifting restriction that is not of short-term duration may qualify as a person with a "disability" under the law, to which the employer must provide a reasonable accommodation. Thus, if an employee who was injured on the job and has reached the maximum medical improvement, but still has medical restrictions, he should request a reasonable accommodation from his employer so that he or she can continue working with his or her disability.

One of the most important ramifications of the Amendments to the ADA is in the definition of what constitutes a "disability" under the law. Specifically, the Amendments to the ADA specifically overruled the U.S. Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), where the Court held in order to show that a plaintiff has a disability, he or she must show that his or her impairment substantially limits one or more major life activities that are of "central importance to most people's daily lives." In that case, the employee worked on the assembly line of an automobile manufacturing plant, where she developed several work-related ailments, including bilateral carpal tunnel syndrome and bilateral tendinitis due to the manual work that she performed. She filed a claim under the Kentucky Workers' Compensation statute and was treated, but was placed on lifting and other restrictions. The employee was eventually fired and it was unclear whether it was because she missed work due to her injuries and/or refused to work in the rotation required by the employer. The U.S. Supreme Court found that she did have a "disability" under the ADA because she did not show that her impairments substantially limited one or more major life activities that are of "central importance to most people's daily lives."

Based on this decision, courts have routinely held that an employee's inability to consistently lift heavy weights due to a work-related injury was not a disability under the ADA. However, the Amendments to the ADA change all that and specifically provide that an individual need not demonstrate a limitation in the ability to perform activities of central importance to daily life. Now, someone with a medical restriction that is not of short-term duration is a person with a "disability" under the law and the employer must provide a reasonable accommodation so that he or she can continue working.

Continue reading "Amendments to the Americans with Disabilities Act have Significant Ramifications to Employees Claiming Workers' Compensation Injuries and Medical Restrictions" »

We are seeing many situations in our Miami office where an employee who gets injured on the job is then fired soon after he files a Workers' Compensation Claim. This may constitute illegal retaliation under Section 440.205 of the Florida Statutes. Under the law, when a covered employee gets injured at work, he or she can file a claim under the Florida Workers' Compensation Law, which provides medical coverage and supplemental payments to the employee while he or she is not able to work. However, an employer cannot retaliate against the employee for having filed a Workers' Compensation Claim.

Under the statute, in order to state a claim for retaliation under Section 440.205, the employee must prove that (1) he engaged in a statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the employee's protected activity. These elements were recently addressed by the Third District Court of Appeals (which covers Miami, Florida) in the case of Ortega v. Engineering Technology Services, Inc. In that case, the employee fractured his right wrist when he fell off a ladder at a job site while installing a fire sprinkler system. The employee filed a claim under the Workers' Compensation statute pursuant to which he was given payments for medical treatment and a percentage of his salary, as a result of that work-related accident and injury. When he was released to work without limitations several months later, the company told him that there was no work available for him. On these facts, the trial court granted summary judgment for the employer, but the Appeals Court found that a jury could have reasonably concluded that his termination was a result of having filed a claim under the Workers' Compensation law and remanded the case for further proceedings.

Employees should note, however, that the Workers' Compensation statute only prohibits the retaliatory discharge of an employee because he or she filed a Workers' Compensation claim. An employee can be discharged for any other legitimate business reasons after the filing of a claim, such as unsatisfactory job performance or excessive absenteeism. In fact, many employers have a policy that an employee will be discharged if he or she is absent from work due to a medical condition for more than 90 days in a calendar year. These policies have been deemed to be legitimate under Florida law. Therefore, an employee who files a Workers' Compensation claim must ensure that he or she pursues medical treatment and returns to work as quickly as possible.

Continue reading "Being Fired After Filing a Workers' Compensation Claim May Constitute Illegal Retaliation under Florida Law" »