Up North--October-November 2011

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October-November 2011

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

Injuries while traveling to and from training seminars: The "special errand" rule
The prohibited act defense: No liability for injuries occurring as a result of specifically prohibited behavior
Verizon disability discrimination settlement: Good reminder to conduct individualized ADA assessments

Injuries while traveling to and from training seminars: The "special errand" rule

In the case of Dorr v. National Marrow Donor Program, slip op. (W.C.C.A. July 7, 2010), the employee was injured while traveling from home to give a presentation at a seminar on behalf of the employer. The presentation was outside of normal work days and hours and at a location other than the employer's usual premises. The employee often attended or presented at this particular seminar, although attendance at the seminar was not mandatory. When she attended the seminar, the employer covered her personal expenses. The employee lived in Ham Lake, the employer's offices were in northeast Minneapolis, and the seminar was located at a hotel in downtown Minneapolis. Shortly after leaving her home in Ham Lake, a deer ran into her car and the employee was left a quadriplegic and permanently totally disabled.

The insurer denied primary liability for the injury, claiming she was not in the course of her employment when injured. The compensation judge agreed with the insurer's posture, and the employee appealed the denial of liability to the Minnesota Workers' Compensation Court of Appeals.

Generally, Minnesota workers' compensation law does not cover an injury sustained during an employee's commute to and from work. An injury sustained during a regular commute is determined to be outside of the course of employment. An exception to this general rule is found when an employee sustains an injury while on a "special errand" for the employer. The Court of Appeals in the Dorr case found that the employee's injury was compensable because the employee was on a "special errand" for the employer.

If the "special errand" exception is found to apply to a fact situation, the employee has coverage for injuries from the time he or she leaves home, until he or she returns from the special work for the employer. While the criteria is not inflexible, the cases finding coverage for injuries under the special errand rule generally involve situations where the activity or service by the employee occurs outside of normal working hours; the task prompting the travel by the employee was for the benefit of the employer and inseparable from the activity or service performed; and while the work activity prompting the travel is for the benefit of the employer, it is typically not part of the employee's regular or routine duties for the employer. In finding the injury compensable in the Dorr case, the court noted that her trip "was occasioned solely by the employment relationship."

The prohibited act defense: No liability for injuries occurring as a result of specifically prohibited behavior

Employers are often frustrated by the apparent compensability of injuries that occur when an employee violates a company safety rule or policy. In order to support denial of liability for an injury on the basis of the "prohibited act" defense, the injury must occur when the employee violates a clearly stated, and consistently enforced prohibited act policy or rule.

An example of a situation employers may think of when thinking of prohibited acts, is driving without a seatbelt. Wearing a seatbelt is usually a stated employment safety policy as well as state law. However, it is usually the act of driving which is found to be the act leading to injury, and this is a permissible act of employment. If the employee sustains an injury driving the employer's vehicle while not wearing a seatbelt, this is found to be a permissible act performed in a prohibited manner, and still typically compensable under the Minnesota Workers' Compensation Act.

A recent case illustrated a situation where compensation was denied based on the prohibited act defense. In Smith v. Metro Transit, slip op. (W.C.C.A. 10/17/11), the employee was a bus driver. While driving his route, one of the passengers wanted to get off at a non-designated bus stop, and the employee did not feel it was safe, so declined to do so. When the employee stopped the bus at the designated stop, the passenger spat in the employee's face and laughed as he exited the bus. The employee exited the bus also and chased after the passenger. When the employee caught up with the passenger, the passenger shoved the employee, causing him to fall and injure his shoulder.

The employer had published a rule in the bus driver's guide, that stated:

Metro Transit bus operators should avoid physical confrontations wherever possible. This means refraining from leaving the bus operator's seat to settle disputes unless it is necessary to do so to defend yourself or customers from physical attacks. It also means avoiding physical contact unless you or a customer are being attacked. If you are under direct physical attack, and you believe physical harm, serious injury, or death may result, use only enough force to subdue the attack and restore order. Once the attack ceases, do not pursue the assailant. If you use more force than necessary, you may be personally liable for having acted outside the scope of your employment.

The employer also previously had issued a bulletin titled "SELF DEFENSE - YES: RETALIATION - NEVER," which provided, in relevant part:

Metro Transit bus operators should avoid physical confrontations whenever possible. This means refraining from leaving the operator's seat to settle disputes unless it is necessary to do so to defend yourself or customers from physical attacks. It also means avoiding physical contact unless you or a customer are being attacked. If you are under direct physical attack, and you believe physical harm, serious injury or death may result, use only enough force to subdue the attack and restore order. Once the attack ceases, do not pursue the assailant. If you use more force than necessary, you may be personally liable for having acted outside the scope of your employment.
***
Leaving the bus seat and pursuing assailant(s) is expressly forbidden when they are for the purpose of retaliation.

The employee himself had previously been involved in situations where he had acknowledged these work rules and had been disciplined for violating them.

The Compensation Judge denied employee's claim, and found that the injury occurred as a result of employee's prohibited act. The Minnesota Workers' Compensation Court of Appeals affirmed the denial of compensation.

In a previous Court of Appeals decision, Hassan v. Spherion Corp., 63 W.C.D. 491 (W.C.C.A. 2003), the Court outlined six factors to consider in determining whether the prohibited act defense would disallow the employee’s claim:

Whether the employee knows of the prohibition;
Whether the prohibition was customarily observed;
Whether the employer took reasonable steps to enforce the prohibition;
The reason for the prohibition;
Whether the performance of the prohibited act was unreasonably dangerous; and
Whether it was reasonably foreseeable by the employer that the expressly prohibited act would occur.

EMPLOYER PRACTICE TIPS: Clearly identify prohibited acts and communicate those prohibitions to employees. Consistently enforce and discipline violations of the prohibited act policies.

Verizon disability discrimination settlement: Good reminder to conduct individualized ADA assessments (Adapted from the October edition of SFM's Companion newsletter)

Verizon Communications in July agreed to pay $20 million and provide significant equitable relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission. The EEOC charged that Verizon violated the federal Americans With Disabilities Act by disciplining or firing employees who built up absences under a no-fault attendance policy rather than making exceptions and performing an individualized assessment for those with disabilities.

Observers say the Verizon settlement demonstrates to employers the importance of having attendance policies that include paid and unpaid leave as a reasonable accommodation for employees with disabilities. The case also demonstrates the importance of (1) not terminating an employee following a workers' compensation claim just because he is missing time from work, and (2) having flexible return-to-work practices that enable employees to return from medical leave even when not released to full duty.

The Verizon settlement is the largest disability discrimination settlement in EEOC history and comes on the heels of other large disability discrimination settlements. Nationally, disability discrimination charges filed with the EEOC have risen 62 percent over the past four years, making it the fastest-growing type of discrimination charge filed by employees against employers.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.