Ohio Supreme Court Rules Former Testimony in a Products Liability Suit is Inadmissible in a Worker’s Compensation Suit

Donald Burkhart was employed as a maintenance worker for H.J. Heinz Company from 1946 to 1986. While employed at Heinz, Burkhart was frequently exposed to asbestos, including times where he was instructed to collect fallen asbestos, beat it into small pieces, mix it into a paste, and reapply it to pipes. Mr. Burkhart was subsequently diagnosed with mesothelioma and died in 2007.

Prior to his death, he gave deposition testimony in a product liability action filed against several asbestos manufacturers whom he believed were responsible for his diagnosis. Following his passing, his wife filed a claim against H.J. Heinz Company seeking workers’ compensation death benefits (Heinz was not named in the suit against the asbestos manufacturers). In bringing this suit, the widow of Mr. Burkhart attempted to use this prior deposition to show that Heinz injuriously exposed him to asbestos. The Industrial Commission denied her claim, and the case eventually made its way to the Ohio Supreme Court.

Mrs. Burkhart attempted to introduce the deposition under Rule 404(B)(1) of the Ohio Rules of Evidence, which permits former testimony of an unavailable declarant, provided the party against whom the testimony is offered is a predecessor-in-interest and had an opportunity to examine the declarant in the prior preceding, and that the two entities would have had similar motive to develop the testimony by direct, cross, or redirect examination.

Mrs. Burkhart contended that the manufacturers of the asbestos litigation could be considered predecessors-in-interest to Heinz because the workplace exposure would concern both entities. She also argued that Heinz could not object to the use of the deposition testimony because they were also using it to disprove Burkhart’s exposure claim.    

The Supreme Court held that the deposition was inadmissible, as “neither H.J. Heinz nor any predecessor-in-interest to H.J. Heinz had an opportunity to cross-examine Burkhart in the prior products-liability litigation, nor was there a similar motive to develop his testimony during his depositions.” The Court held that a similar interest in the material facts and outcome of an asbestos case is not enough to create a predecessor-in-interest relationship. This represents yet another important decision in the ever-growing list of asbestos related litigation.


Employees Now Allowed to Use Company-Provided Email Systems for Union Organizing

The National Labor Relations Board, by a 3-2 vote, just reversed legal precedent to declare that workers have a right to use their employers’ email systems for non-business purposes, including union organizing. The Board specifically stated, “We decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

This change in law only applies to workers who have access to their employer’s email system and only grants employees the right to use their employer’s email system for non-work purposes during non-working time. Employees may still be prohibited from using company email for non-work purposes during working time, and employees without email access may still be prohibited from accessing the email system. Further, a complete ban on non-work use of email may be lawful, so long as necessary and consistently enforced.

This ruling, Purple Communications, Inc. 361 NLRB No. 126 (2014), has been expected for quite some time, and is perhaps the first of a flurry of pro-union rulings to be released between now and the end of the year when pro-union Board Member Nancy Schiffer’s term expires. Member Schiffer’s appointment gives the Board a strong 3-2 pro-union slant.

Matt Austin


New OSHA Reporting Requirements Go Into Effect January 1, 2015

Beginning January 1, 2015, employers will need to comply with the Occupational Safety and Health Administration’s (OSHA) new requirements for reporting employee fatalities and severe injuries. The new rule requires employers to report to OSHA all work-related fatalities within 8 hours and all work-related hospitalizations of one or more employees, amputations, and losses of an eye within 24 hours. (The current OSHA rule only requires employers to report work-related fatalities and hospitalizations of three or more employees.)
Employers must report any fatality that occurs within 30 days of a work-related incident. For example, this means that if an employee is seriously injured while on duty but does not pass away from his injuries until three weeks later, the employer must report the incident as a work-related fatality.
Employers must report all in-patient hospitalizations, amputations, and losses of eye that occur with 24 hours of a work-related incident. Inpatient hospitalization is defined as a formal admission to the inpatient service of a hospital or clinic for care or treatment. Notably, employers do not have to report an inpatient hospitalization if it was for diagnostic testing or observation only. Two other notable exceptions include injuries resulting from motor vehicle accidents on a public street or highway (unless the event occurred in a construction zone) and injuries on a commercial or public transportation system. 
The new rule covers all employers under OSHA’s jurisdiction, even those employers who are exempt from routinely keeping OSHA injury and illness records due to company size or industry. Employers can report employee fatalities and severe injuries by telephoning the nearest OSHA Area Office during business hours, calling the OSHA 24-hour hotline at 1-800-321-OSHA, or accessing OSHA’s website at www.osha.gov.


Ohio Does Not Recognize Dual Intent Doctrine

While many jurisdictions recognize the dual intent doctrine, which allows a workers’ compensation claim when a worker is injured while traveling for both business and personal purposes, Ohio does not. In an October 21, 2014 decision, the Ohio Supreme Court held in the case of Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion No. 2014-Ohio-4531, that the doctrine of dual intent is not applicable when determining eligibility for workers’ compensation benefits. 

This case involved a woman by the name of Tamara Friebel, who was employed by Visiting Nurse Association of Mid-Ohio (“VNA”) as a home health nurse to provide in-home healthcare services to VNA clients. Ms. Friebel traveled from her home to clients’ homes using her personal vehicle. While on the way to a patient’s home, Friebel decided to also transport her children and family friends to a local mall. Before dropping off her passengers, Friebel’s car was hit from behind while stopped at a traffic light. Friebel filed an application for workers’ compensation benefits, and the Industrial Commission allowed her claim at the administrative level. VNA filed an appeal into common pleas court and moved for, and was granted, summary judgment on the basis that Friebel was on a personal errand and thus not injured within the course and scope of her employment. Friebel appealed, and the court of appeals reversed the trial court’s order granting summary judgment and held that, as a matter of law, the accident and injury arose out of and occurred in the course of Friebel’s employment. The court of appeals indicated that Friebel had the dual intent to drop her passengers off at the mall and to travel to her patient’s home and that when she was injured, she had not yet diverted from that path.

On VNA’s appeal, the Ohio Supreme Court reversed the court of appeals’ decision and remanded the case to the trial court. In a 5-2 decision, the Court cited a prior Ohio Supreme Court case (Cardwell v. Indus. Comm., 155 Ohio St. 466, 99 N.E.2d 306 (1951)) and commented that a claim’s compensability should focus on the objective standard of “in the course of” and “arising out of” a person’s employment, not the subjective intent of an injured worker.

This case is good news for Ohio employers because the Court essentially rejected a blanket rule in favor of continuing a fact-based analysis for claims involving employees traveling with both personal and employment purposes. 

Chris Debski


OSHA Warns Employers of the Dangers of Ebola

The threat of the deadly Ebola Hemorrhagic Fever, or Ebola virus, has caught the attention of the Occupational Safety and Health Administration. In the wake of several national incidents, OSHA has released interim guidance tips for employers in an effort to protect employees from the deadly virus. While a majority of workers are unlikely to ever come in contact with the virus, those who are employed in the healthcare and airline industries, along with various humanitarian efforts, are presently at the greatest risk. Employers in these fields should be on the lookout for symptoms of Ebola, which include fever, vomiting, diarrhea, and, at advanced stages, bleeding. The virus, which can incubate for up to 21 days, is only contagious when the host is exhibiting symptoms. 

OSHA reminds employers that adherence to the Personal Protective Equipment standard under 29 CFR 1910.132 and the Respiratory Protection standard under 29 CFR 1910.134 is important in protecting against Ebola, which is spread via infected bodily fluids. OSHA also warns that training under the Bloodborne Pathogens standard, 19 CFR 1910.1030, is necessary for employees in fields where exposure to blood and other bodily fluids is common. Proper hygiene, including hand washing and disposal of contaminated items, is also necessary. In this regard, OSHA has released a guideline on cleaning and decontamination of Ebola on surfaces. The guideline states that items or surfaces that may have come in contact with the virus should be immediately cleaned and disinfected, and the area itself should be isolated. Any contaminated items should be double bagged and placed in leak-proof containers. The contaminated area should be disinfected with bleach for at least thirty minutes in the event that commercial disinfectants are not available. During decontamination, workers should wear proper protective clothing, such as fluid-resistant gowns, goggles, facemasks, and double gloves. OSHA also advises that respiratory protection should be used to prevent the transmission of airborne fluids, or “bio-aerosols.” Adherence to the Hazard Communication standard, 19 CFR 1910.1200, is required during any cleanup. 

The potential for workplace exposure to Ebola represents a two-fold threat to employers. First, the failure of an employer to ensure its employees are protected from exposure could run afoul of OSHA’s General Duty clause, which requires that an employer furnish a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Second, in decontaminating and containing the virus, an employer must also ensure that its employees avoid exposure to harmful chemicals or other cleaning agents. Given these potential OSHA violations, along with the deadly nature of the virus and the national stigma that could attach to any occurrence, employers would be wise to educate themselves on the threat.

Actions taken by employers in addressing the virus must also take into consideration other legal requirements, particularly the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. 

Under the ADA, an employer cannot require an employee to undergo a medical exam, and cannot make disability-related inquiries “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” A medical examination or disability-related inquiry is permitted if, based on objective evidence, the employer has reasonable belief that “an employee’s ability to perform essential job functions” will be impaired or the employee poses a “direct threat” due to their condition. Under the ADA, a “direct threat” means a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” Given the deadly nature of the virus, combined with its national stigma, it is highly likely that an employee potentially suffering from Ebola could be considered a “direct threat” for ADA purposes. Therefore, an employer would be permitted to inquire as to an employee’s health, or even mandate a medical examination. Such a determination would have to be done on a case-by-case basis. 

Furthermore, under Title VII of the Civil Rights Act, an employer cannot discriminate on the basis of race, color, or national origin. Ebola is experiencing an extensive outbreak in West Africa, with American occurrences of the virus tracing their origin back to this location. Given this, employers must make sure that any action they take to address the virus does not focus on employees of African or West African descent, and instead targets all employees equally.



Does Your Wellness Plan Meet the Reasonable Alternative Standard?

As fall open enrollment approaches, now is the time for Plan Sponsors to reevaluate their wellness programs and confirm that they comply with the regulations issued under the Affordable Care Act. The Departments of Labor, Treasury, and Health and Human Services have issued regulations governing the conditions of wellness programs associated with employer-sponsored health plans. In 2014, the regulations raised the maximum permissible reward offered in connection with a health-contingent wellness program to 30 percent and 50 percent for programs that seek to reduce tobacco use. Recent Equal Employment Opportunity Commission (the “EEOC”) lawsuits against employers related to employer maintenance of wellness programs serve as a cautionary tale against instituting wellness programs without the guidance of an attorney.

The Reasonable Alternative Standard

Wellness programs can come in two forms: “outcome based” and “activity-only.” Outcome-based wellness programs reward employees for meeting certain goals. Activity-only wellness programs require individuals to complete an activity related to a health factor in order to obtain a reward, although a particular outcome is not required.

Plan Sponsors of activity-only wellness programs need to offer a “reasonable alternative standard” (or waive the standard requirements) to any individual who cannot satisfy the program’s requirements because of a medical condition. The wellness program can seek verification, such as a statement from an individual's personal physician that a health factor makes it unreasonably difficult or medically inadvisable for the individual to attempt to satisfy the program’s requirements to earn the reward. The plan must provide a reasonable alternative standard that accommodates the recommendations of the individual's personal physician.

An outcome-based wellness program requires broader access to reasonable alternative standards for participants. If an individual does not meet the plan's standards, he or she must have access to a reasonable alternative standard regardless of any medical condition or other health status. A reasonable alternative standard can be another outcome-based program (for example, an alternative for a program requiring an individual to achieve a BMI of 23 or less might be requiring an individual to lose a certain percentage of body weight) or an activity-only wellness program (for example, the alternative to the program requiring a BMI of 23 or lower might be participation in a walking program). A reasonable alternative standard must be provided for all individuals who do not meet the outcome-based standard, to ensure that the program is reasonably designed to improve health and is not an excuse for underwriting or reducing benefits based on health status.

Unlike an activity-based wellness program, an outcome-based wellness program may not require verification, such as a statement from an individual's personal physician, before offering a reasonable alternative standard. (An exception applies if the reasonable alternative standard is an activity-only wellness program.)

Penalties for Noncompliance

Aside from any participant lawsuit concerning whether a wellness program impermissibly discriminates against people based on health status—which could result in damages and attorneys’ fees—there are statutory penalties for noncompliance. The U.S. Department of Labor is actively auditing plans for compliance and can bring a civil action against an employer to enforce these requirements. Additionally, under the Health Insurance Portability and Accountability Act (HIPAA), the Internal Revenue Service may impose on the sponsoring employer an excise tax penalty of $100 per each day of noncompliance per each affected individual.

Nathan Pangrace

Ann Prenner Schmidt


U.S. Judicial Panel on Multidistrict Litigation Considers Missouri Workers’ Compensation Laws, Rules Against Former NFL Players in Concussion Suit

In the case of Kenney et al. v. Kansas City Chiefs Football Club, Inc., former Chiefs players sued the organization, alleging the club had failed to adequately protect and warn players of the dangers of concussions. As part of their suit, the players cited a specific Missouri workers’ compensation law, one that allows an injured worker to sue their employer for work-related injuries even if the employee had declined workers’ compensation. Most states require an injured worker to seek a remedy exclusively through workers’ compensation. This key difference, in addition to highlighting disparity in the workers’ compensation laws nationwide, also made Missouri an attractive forum for a suit against an NFL team.

The NFL argued that the suit implicated the Labor Management Relations Act, and should be included with the much larger (and headline grabbing) concussion litigation taking place in the Eastern District of Pennsylvania.

The players, fighting to keep the suit in the Western District of Missouri, made several arguments. First, they alleged a lack of federal subject matter jurisdiction. They then asserted that the Chiefs, and not the NFL as a whole, were the named defendants. The players also argued that the claim arose under Missouri workers’ compensation laws and was therefore different from the Pennsylvania suit. Finally, they asserted that the transfer would inconvenience the plaintiffs, delay the action, and “effectively void the plaintiffs’ claims, causing extreme prejudice.”

The Judicial Panel disagreed with plaintiffs, primarily citing the common questions and issues in both cases, previously transferred cases with similar arguments, and the fact that similar claims were filed by the same plaintiffs in the ongoing Pennsylvania claim. Additionally, the Panel ruled that “jurisdictional issues do not present an impediment to transfer.”  Interestingly, the Panel’s decision did not address the Plaintiffs’ workers’ compensation claim, instead glossing over it in favor of the common issues and facts between the two cases.

This ruling represents an important decision in the often overlooked realm of workers’ compensation and the professional athlete. Pro athletes, including NFL players, are covered in some form or another under workers’ compensation statutes in a majority of states. However, the claims these athletes can bring are becoming increasingly restricted, particularly as related to concussions. In that regard, the most attractive workers’ compensation claim would be one based on cumulative trauma. However, few states recognize these types of claims, and the state most often used by players in asserting cumulative trauma, California, drastically reduced the availability of the claim to nonresident players in 2013. These ongoing restrictions can be seen in Kenney as well. The unique Missouri law that allowed the players to bring their suit in the first place expired on December 31, 2013, meaning yet another potential forum for professional athlete workers’ compensation claims has become less attractive. The Kenney decision therefore represents another step in the increasing reduction of legal avenues available to injured professional athletes under state workers’ compensation laws.

Marcus Pringle