(US employment and PI law and general issues).
Repetitive stress injuries are a category of disability whose predictability is determined by the amount of time an employee spends performing the same task over and over, and the number of times the task has to be performed (in an hour or day) to meet performance quotas.
The classic example of a repetitive stress injury is carpal tunnel syndrome. Human beings have not evolved to repeat the same motion over and over, day after day, for years. The likelihood of injury is even greater where the tunnel is smaller in some individuals than in others – a condition that can be exacerbated by rheumatoid arthritis, persistent use of vibrating hand tools, fluid retention as a result of pregnancy, menopause or heart disease, or the emergence of a tumor within or next to the canal.
In some cases, simple repetitive stress injuries can resolve into Hereditary Neuropathy with liability to Pressure Palsies (HNPP). If the trigger is repetition, the source is a slowly progressive hereditary disposition which makes individuals highly likely to develop nerve injuries from pressure, repetitive movement, or flexing and stretching. This disposition, in conjunction with motions undertaken for years or even decades, causes nerves to lose their demyelinated protective layer and results in episodes of paralysis and loss of feeling in the affected muscles and nerves.
The causes, however, are less important than the fact that women in general are three times as likely as men to develop carpal tunnel syndrome. Unfortunately, women are also the demographic that some employers see as missing work more often, either due to health concerns or child rearing. Thus, it is not surprising that a minor issue like carpal tunnel (which generally requires surgery and/or physical therapy) should be the cause of so many dismissals of women workers – a state of affairs that gets worse when unemployment figures are high across the board and almost any job seems like a lifeline.
Repetitive stress injuries are the topmost cause of occupational health-related difficulties, as well as the most costly at roughly $20 billion per year. In addition, some states do not even provide employers with a window of time in which such injuries must be reported, even though every state mandates employer reporting of these disabilities. To make matters worse, doctors and physical therapists often cannot determine if an injury is due to working conditions or some activity outside of work like swinging a tennis racket or digging weeds.
CMS-1500 form reporting, on which employers document the above injuries or disabilities, is more recently handicapped by reporting mandates designed to protect Medicare from future medical expenses for worker’s compensation and general liability claims. This new measure, which takes into account the new and supposedly universal coverage of the Patient Protection and Affordable Care Act, also called Obamacare or the PPACA, will be able to scrutinize historical health records in order to recapture payments made on behalf of an employee by accessing his or her health plan under the PPACA.
Nor are disputes, claims and lawsuits restricted to actual physical disabilities like carpal tunnel, tennis elbow, etc. In fact, many of the claims spring of workplace bullying.
A classic example of this quagmire would be the April 2011 incident in which Wal-Mart was directed to pay $440,000 to resolve an EEOC lawsuit which sought damages for the reported harassment of Latino workers at a Sam’s Club (discount distributor) in Fresno, California.
According to the suit, nine employees of Mexican descent, including one who was married to a Mexican, endured constant and repeated ethnic slurs from a co-worker, who called them “f—-n wetbacks” and told them they were only good for housework. The same employee also reported three of the nine to the U.S. Citizenship and Immigration Services.
Compassionate employers, fully aware of EEOC laws regarding persons with disabilities, will have (or initiate) a comprehensive ADA- (Americans with Disabilities Act-) and EEOC-compliant program that slots potentially vulnerable employees into positions where repetitive motion will likely not result in injury or disability. It can also be used to prevent hiring those who are not physically capable of fulfilling the job’s parameters, though to use it in this fashion may also be a violation of EEOC mandates (depending on how it is done).
It requires an exceptionally knowledgeable Human Resources staff, which leaves its ivory tower often enough to get a feel for the workers in the basement, to resolve mental and psychological conflicts, and this gray area requires balance and discernment – two qualities not all HR employees have.
Consider, for instance, the case of 22 women who sued IHOP and its New Mexico restaurants, owner Fahim Adi, and manager Lee Broadnax, the latter for his display of sexually offensive behavior, including physical contact and verbal abuse, for $1 million.
The EEOC settled this case in the first half of November, 2012, only one of many cases pursued by the Commission, but so far the one which paid out the largest settlement. If employers learn anything from these examples, it is that the 21st century job market may be filled with pitfalls for applicants – the first being not enough jobs to go around – but they should not add to that burden with discrimination in hiring or firing if they don’t want to run afoul of the law in some very costly ways.
Roberts & Roberts Law Firm is a wrongful death law firm located in Tyler, Texas. For more information, please visit us at www.Robertslawfirm.com.