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Disability Rights and Benefits - Line of Duty Related: Disputed

     Three consolidated cases brought before the highest court in New York involved officers who responded to try and assist at the site of the terrorist attacks on the World Trade Center on September 11, 2001. The surviving spouse of an officer who died there asserted a claim for line of duty death benefits, and two officers who survived sought accidental disability retirement benefits. The pension fund argued that it had rebutted the statutory presumption for responders at the scene of the attack that an officer's disability or death as a result of a qualifying condition was caused by his or her exposure at the World Trade Center site for purposes of benefit upgrades. The court held that the fund did not meet the burden of disproving that the death or the disabilities were not related to their work at the site. Bitchatchi v. N.Y. City Police Dep't Pension Fund Bd. of Trustees, #219, 2012 N.Y. Lexis 3635, 2012 NY Slip Op 8566.

Family, Medical & Personal Leave

     A correctional employee was forced to take intermittent leave after he was diagnosed with abdominal and heart conditions. He subsequently claimed that he was fired for supposed attendance problems because of taking leave, in violation of his rights under the Family and Medical Leave Act, and in retaliation for exercising those rights. A second employee, after being placed on stress leave by her physician, claimed that a supervised punished her for taking leave by disciplining her and increasing her workload. While a state employee can receive damages for violations of the family care provisions of the Family and Medical Leave Act, prior Sixth Circuit precedent established that they may not receive money damages for the employer's violations of the statute's self-care provisions. Claims for violations of that are barred by states' sovereign immunity, and there can be no individual liability for a public employer under the law. Equitable claims, such as claims for reinstatement are not barred. Diaz v. Mich. Dept. of Corrections.. #11-1213, 2013 U.S. App. Lexis 361, 2013 Fed. App. 3P (6th Cir.).

Handicap Laws/Abilities Discrimination - Accommodation in General

****Editor's Case Alert****

      After a police officer suffered a major heart attack, he retired, having been told that there were no administrative positions available that did not require strenuous physical duties. The officer sued the city, claiming disability discrimination and failure to reasonably accommodate his condition. An intermediate California appeals court upheld a trial court determination that such strenuous physical activities were essential job functions even in administrative positions. The city needed to be able to deploy administrative officers in the field when emergencies occur. Both the discrimination and failure to accommodate claims were rejected. Lui v. City & County of San Francisco, #A131882, 211 Cal. App. 4th 962, 2012 Cal. App. Lexis 1248.

     After a correctional lieutenant working at a state prison had an auto accident, injuries to his left arm and hand caused him to lack the range of motion and sufficient grip strength to use a baton in his left hand. He was medically demoted to a non-peace officer position, and denied a requested reassignment to an administrative correctional lieutenant peace officer job. An intermediate appeals court rejected his challenge to this as disability discrimination, finding that he was unable to perform the essential job functions of a correctional lieutenant position, even if given reasonable accommodation. Even while performing administrative duties, a correctional lieutenant had to be able to subdue an aggressive prisoner and use a baton. Furtado v. State Personnel Board, 2013 Cal. App. Lexis 8.

Homosexual & Transgendered Employee Rights

     A settlement has been reached between the federal government and a class of homosexual members of the armed forces who were discharged under the "Don't Ask, Don't Tell" policy, receiving only one-half normal separation pay. The government has agreed to give members of the class the other half of the separation pay that they would have otherwise been entitled to. Collins v. U.S. #1:10-cv-00778, (2013 Ct. Claims).

Occupational Safety and Disease

     Does a doctor who treats prisoners have a legal duty to warn corrections officers that an inmate has a communicable disease? One female correctional officer assigned to strip search female prisoners before and after they received visitors claimed that she contracted a methicillin-resistant staphylococcus aureus (MRSA) infection because approximately twelve of the prisoners were infected. She sued the private company that provided medical services to the prisoners, claiming that its staff members knew which prisoners were infected and should have informed her so that she could take precautions. The Pennsylvania Supreme Court found that the defendant was not liable to the officer, finding that the trial court had properly declined to impose new affirmative duties to a third party on medical personnel in their professional relationship to prisoners. Seebold v. Prison Health Services, #9-MAP-2011,.2012 Pa. Lexis 3011.

     Editor's Note: See, Avoiding Liability for Antibiotic Resistant Infections in Prisoners, 2011 (3) AELE Mo. L. J. 301.

Privacy Rights

     California, as of the start of 2013, has a law making it unlawful for employers to request employee or applicant user names and passwords to social media sites like Facebook and Twitter. Under the statute, there is no exception for law enforcement, but there are exceptions for the use of employer provided devices and when the information is relevant to an investigation of employee misconduct. Similar laws are also in effect in Delaware, Illinois, Maryland, Michigan, and New Jersey.

Religious Discrimination

     A city and police department officials did not violate the First Amendment religious freedom rights of a Christian police officer who claimed that he was demoted and given a two-week unpaid suspension because he refused what he interpreted as orders to attend an event known as law enforcement officer appreciation day at a Muslim mosque. He found the event objectionable because it was a Muslim worship service, and he believed that he would be proselytized at it. He also refused to assign other officers from his shift to attend. In a lawsuit over the incident, the police chief stated that he could not have a police department where everybody refuses to interact with Muslims in the community because of their personal religious beliefs. The court held that no reasonable jury could find that an order to attend the event violated the officer's right to practice his religion. Fields v. City of Tulsa, #11-cv-115, 2012 U.S. Dist. Lexis 176698 (N.D. Okla.).

Sexual Harassment - Suits by the Person Accused

     A volunteer at a county center for nursing and rehabilitation was dismissed because he had engaged in sexually harassing and erratic behavior towards members of the staff. He argued that terminating him was disability discrimination because he had been diagnosed with Pervasive Developmental Disorder. The court found that even if that condition could be considered a disability, his sexually harassing actions made him unqualified to perform an essential function of his job, relating properly with other people in the program. It constituted a legitimate and non-discriminatory cause for firing him, even if it could be argued that his behavior was caused by his disability. McElwee v. County of Orange, #11-4366, 700 F.3d 635 (2nd Cir. 2012).

Workers Compensation - Claim Validity

     An employee at a state juvenile detention facility suffered an injury to his neck and right shoulder at work while subduing a combative juvenile detainee. A post accident drug test and a follow-up test the next day both were positive for marijuana and he was denied workers' compensation benefits for the injury under a statute that bars them for injured employees impaired by drugs. The Oklahoma Supreme Court reversed, rejecting the argument that the law created an irrebuttable presumption of impairment barring benefits based on a positive drug test. It found that the employee had overcome a rebuttable presumption that he was ineligible for benefits. There was not any evidence that any marijuana in his system was a "major cause" of his injury, or that he was drug impaired at the time of the injury. Hogg v. Oklahoma Cty. Juvenile Bureau, #110890, 2012 OK 107, 2012 Okla. Lexis 115.

• Contents menu.

• Report non-working links here

     Collective Bargaining Agreements: Summary of the first ever collective bargaining agreement between the American Federation of Government Employees (AFGE) and the Transportation Security Administration (TSA), covering 45,000 TSA officers (Aug. 2, 2012).

     Fatigue: "Vigilance Fatigue in Policing," by Meredith Krause, FBI Law Enforcement Bulletin (December 2012).

     Garrity Warnings: "Garrity Warnings - To Give or Not to Give, That is the Question," in the Dec. 2012 issue of Police Chief. The article was written by Eric Daigle, a member of the AELE Board of Directors and a speaker at two AELE seminars.

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Report non-working links here

AELE Seminars:

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 – Las Vegas

Lethal and Less Lethal Force
Oct. 7-9, 2013 – Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 16-18, 2013 - Las Vegas

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