As states pass non-smoking laws, fewer service employees are exposed to customers’ second-hand smoke. But should companies be liable for their workers who still encounter it on the job? Some businesses are facing lawsuits.

Lawyers have filed two class-action lawsuits against Las Vegas casinos, alleging that the health of employees is being affected by second-hand smoke.

The latest lawsuit is against the Wynn Las Vegas. The first one was against Caesars Palace.

Caesars hasn’t filed its answer to the lawsuit. Wynn Las Vegas didn’t respond to a request for comment by the Las Vegas Sun.

The suit says the smoke is causing employees to suffer eye irritation, coughing, sore throat, sneezing, shortness of breath, dizziness, wheezing, tightness in the chest, asthma, headache, nausea, and ingestion of cancer-causing chemicals and toxins.

Lawyers for the casino workers claim some Las Vegas properties have taken measures to minimize second-hand smoke on their gaming floors. The Bellagio has a high-tech air filtration system. The Palazo built smoke-free corridors and half of its gaming area is non-smoking.

The suit also charges that Wynn employees risk losing their jobs if they complain about the second-hand smoke.

The suit seeks an order requiring Wynn “to take reasonable measures to protect its employees from second-hand smoke” and unspecified costs and attorney’s fees.

The suit against Caesars notes that the Palace and its sister properties, Bally’s and Paris, were part of a study released in May by the National Institute for Occupational Safety and Health (NIOSH).

The study found that casino dealers had traces of a tobacco-specific carcinogen in their urine. The NIOSH study said, “The increase in [a known lung carcinogen] in the urine of most non-poker casino dealers at the end of their work shift demonstrates that non-poker casino dealers are exposed to a known carcinogen in the tobacco smoke at the casinos. The best means of eliminating workplace exposure … is to ban all smoking in the casinos.”

What do you think about the lawsuit? Should a court be able to order a business to go smoke-free? Let us know in the Comments Box below.

The rule has been in effect since Jan. 12, 2009, and OSHA has already used it.

OSHA has said it intends to use these new measures only in egregious cases in which employers showed a clear disregard for issuing PPE to employees. However, the standard doesn’t spell out that it’s only for use in severe cases.

The National Association of Manufacturers points out that a $7,000 fine for lack of or incorrect PPE could turn into a $700,000 penalty if 100 employees within a facility are required to wear that type of PPE.

Arguments in the case are expected to begin in November.

Do you think OSHA should be able to fine companies, per employee, for PPE violations? If so, under what circumstances? Let us know in the Comments Box below.

What do you do with employees who have a history of injuries? Fire them and they may sue, but leave them on the job and they might harm themselves or others.

Now there’s a way for legally removing these people from the workplace.

Some companies conduct fitness for duty (FFD) evaluations in these situations. They’re similar to post-offer, pre-hire physical exams to determine ability to do the job. But FFDs can be done any time during employment and are broader: They determine physical, mental and emotional fitness.

A comprehensive FFD program would include:

• pre-placement medical evaluations, often done with safety-sensitive jobs
• absence management, including people who call in sick Mondays and Fridays and presenteeism, people not fully productive under stress from family issues or medication
• for-cause drug and alcohol testing, based on credible report of impairment, and
• pre-assignment clearance to new tasks or after leave due to injury or FMLA.

An FFD would withstand legal challenges if a company:

• administers it fairly across the board
• makes tests reasonable and job-related
• doesn’t make decisions on past health records, such as cancer history
• keeps test results confidential, and
• gives a disqualified employee the right to submit his or her own evidence as to fitness for duty.

For more information on FFD evaluations, click here.

Does your company use FFD evaluations? Let us know in the Comments Box below.

Have you ever fired someone for violating a company safety rule? In this case, a company did just that and then found itself in court on a charge of racial discrimination.

Georgia-Pacific fired supervisor Ezra Brady for instructing an employee to use an improper lockout procedure. The plant manager claimed the result was that an energy source wasn’t isolated and employees were at risk. The company said Brady willfully violated company policy.

The company had safety rules in its employee handbook that spelled out lockout requirements.

Brady filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that he’d been fired as a result of racial discrimination. Brady says he was fired for a first offense, while two white employees were only suspended for three days for the same offense.

When the EEOC found reasonable cause that Georgia-Pacific had racially discriminated against him, Brady filed a lawsuit against the company. G-P asked to have the case thrown out.

The court agreed to throw out Brady’s lawsuit because he didn’t prove that his employer gave preferential treatment to another employee under nearly identical circumstances.

In one situation in which a white employee was suspended, the worker was making repairs on a conveyor and reached far enough into it to have required a lock-out. The plant manager said this employee was only suspended for three days because he didn’t put any other employees in danger. The court found this didn’t qualify as a nearly identical circumstance.

In the second case, a manager and two other employees were conducting an inspection. One employee turned off a breaker to a machine. None of the three had a lock for the breaker, and the manager decided one wasn’t needed because he was supervising the situation. That manager also received a three-day suspension. Management said this case was not a willful violation of company policy because the manager thought he was doing the right thing. Once again, the court said this didn’t qualify as a nearly identical circumstance.

The take-home: Companies can enforce policies that call for firing employees for certain safety infractions. They just need to be careful that disciplinary measures are applied equally.

What does your company policy say about penalties for safety violations? Has your company ever fired someone for safety reasons? Let us know in the Comments Box below.

Have you ever been suspicious of a workers’ comp claim? Be careful. A recent ruling appears to draw an important — and, in this case, extremely expensive — distinction between “reasonable” and what you might call “reflexive” suspicion.

The West Virginia Supreme Court of Appeals has upheld a $1 million punitive-damages award against a mining company accused of retaliatory discharge against a worker who’d filed a comp claim.

One key: what the jury viewed as unreasonable suspicion. It saw the company’s surveillance efforts as evidence of malicious conduct.

Specifically, the court noted, the company had “placed (the employee) under surveillance” and had “continued its surveillance” even after the employee said he could return to work.

And that was a contributing factor in the jury’s decision that the employee was “severely harmed” by the company’s actions.

The court added in a footnote: “That is not to say …  that an employer may not use surveillance techniques to investigate the veracity of an injured employee’s claim for workers’ compensation benefits.”

Maybe not, but it certainly raises questions.

Where should companies draw the line? Is routine surveillance of comp cases reasonable, or should companies have to justify their suspicions before going to such lengths? Tell us what you think in the Comment Box below.

And the case hasn’t been settled.

The fact that the appeal is dragging on is significant.  But how it turns out may be even more significant.

When the fine was announced, company CEO John Sheptor said he hoped the whole thing would be settled “in a few weeks,” according to an article in the Augusta (Ga.) Chronicle.

In the same article, plantiffs lawyer Mark Tate explains why that hasn’t happened: “(OSHA’s) pressing its case as doggedly as private lawyers would. Proposed OSHA fines used to get settled for pennies on the dollar. But not this time.”

This chart, posted by probublica.org, lends credence to the “pennies on the dollar” comment. Many of OSHA’s largest proposed fines eventually withered into small fractions of their original figures.

Does this mean OSHA is now overreaching? Or is developing a bite that matches its bark long overdue? Let us know what you think in the Comment Box below.

You hear it all the time: Sedentary, overweight and out-of-shape employees can be a huge drain when it comes to health insurance, workers’ comp and other costs. Whip ‘em into shape and you’ll save, save, save!

True, but be careful. A recent court decision offers a cautionary tale.

The bottom line: An employee who suffered a spinal cord injury while exercising at a gym was awarded workers’ comp.

Now, under most circumstances, employees who get hurt in voluntary off-duty activities aren’t entitled to comp. But there are three exceptions: Comp can be awarded if an employer requires the employee to participate, compensates him or her for doing so, or sponsors the activity.

In this case, the employee was neither required nor compensated for his gym membership — though he had the option to be reimbursed for half of his membership (he chose not to take it).

And the company didn’t exactly “sponsor” the activity.

What it did was encourage the employee to participate. Why? To help develop contacts with current and prospective clients.

In affirming a lower court decision, the state Supreme Court cited two factors:  (1) The company at least offered to pay half of its employees’ membership fees; and (2) it encouraged participation as a way to further business interests.

It did not say whether either factor alone would have been enough to carry the day.

What do you think? Should you worry about crossing a line when you urge employees to lead active, healthier lifestyles? Let us know in the Comment Box below.

Employees can receive comp for mental injuries at work under certain circumstances.

In this case, Laila Young said she was harassed at work after September 11, 2001 because of her Egyptian ethnicity. The company fired her in April 2003.

Young claims she was:

• cursed at
• struck in the head by one of her co-workers
• subjected to offensive anti-Arab cartoons that were placed on a bulletin board
• repeatedly ignored and belittled by her supervisor in front of others, and
• asked by her supervisor if she had turned her family in to the FBI.

Her employer, Pentax Precision Instrument Corp., provided witness testimony that told a different story.

There were direct denials of Young’s accusations and reasonable explanations of others.

The company also showed that when Young had complaints, it dealt with them promptly.

Add to all this that Young had been transferred within the company in 1998 because of problems interacting with co-workers. Some of those problems persisted, according to testimony.

Two doctors, two different opinions

Young presented testimony from her doctor that her anxiety and stress were related to harassment at work. However, an independent medical exam performed by the employer’s doctor found no causal relationship between her anxiety and work.

A workers’ comp law judge, the state workers’ comp board and finally the state supreme court all ruled in the company’s favor. The court found no reason to reverse the board’s previous judgment that the company’s testimony was more credible.

In its ruling, the New York Supreme Court noted that if a claimant can show that stress that caused an injury was “greater than that which other similarly situated workers experienced in the normal work environment,” then the employee can receive workers’ comp.

In this case, Young wasn’t able to show that.

You can read the court’s decision here.

Should employees be able to get workers’ comp for stress on the job? Let us know in the Comments Box below.

Explosions at the plant killed 14 people and injured many more.

Interviews conducted by OSHA with plant workers uncovered the alleged lack of training, according to The Savannah Morning News.

OSHA is seeking $8.8 million in fines for alleged safety violations at two Imperial plants. Imperial is appealing.

About 40 workers said they didn’t receive training on how to get out of the building in an emergency. Only about 30 people said they were shown how to leave.

Just 5 people ever recalled a fire drill at the plant.

Former corporate safety manager Michael Lastie said in a sworn statement that the company lacked a document that “clearly spelled out … the roles and responsibilities of the first responder team.”

Creating such a document was a recommendation made to the company after a 2004 safety evaluation.

Imperial also faces lawsuits from victims’ families.

1. When it comes to safety, training and prevention are a lot less expensive than the alternative.

2. Even when workers’ compensation laws are unwieldy and a nuisance, there’s a lot to be said for “exclusive remedy” provisions.

3. You never want any case to end up in the hands of a jury.

It happened in Texas, the only state where workers’ comp participation is still voluntary. An industrial worker lost most of the vision in one eye after being sprayed by acid.

He sued, claiming the acid-addition system he was working on had been negligently designed because it lacked a pressure ventilator and failed to properly vent.

The trial lasted two weeks. But the sympathetic jury took less than two days. Its verdict: a $9.6 million award to the partially blinded employee.

The jury assigned 75% of the blame to the company that designed the system, 20% to his employer and only 5% to the employee himself.

A Texas drilling company will pay $16 million to the family of a woman who was killed when equipment fell off its tractor trailer and onto the victim’s SUV.

Pioneer Drilling Co. of San Antonio, TX, agreed to the settlement after three days of trial in a Texas court.

On Sept. 11, 2008, Rhonda Henson was driving her Ford Explorer with her husband in the passenger seat. A large piece of oil field equipment fell off a passing tractor trailer, crushing the driver’s side of the SUV.

According to the Times-Review, jurors heard a 911 call in which an eyewitness tells an emergency center operator that she yelled to see if anyone was in the SUV. Thomas Henson, who was out of the truck, told the eyewitness his wife was dead in the vehicle.

The equipment, weighing more than 15 tons, was secured with two chains, not four as required by law.

A local police department report also said the driver, 21-year-old Daniel Armstrong, failed to control his speed.

The attorney for Henson’s family said sworn testimony showed at least one Pioneer employee was aware that Armstrong had several traffic tickets, a suspended license and wasn’t qualified to drive the tractor trailer.

The attorney said other company employees forged, backdated and fabricated Armstrong’s records after the accident. A company employee eventually came forward with that claim.

A statement from Pioneer said all but $1 million of the $16 million settlement will be covered by insurance.

Lab assistant Sheri Sangji was burned over about half of her body and died 18 days after the lab fire. She was transferring about 2 ounces of t-butyl lithium from one sealed container to another when a plastic syringe fell apart in her hands.

The chemical ignited when it was exposed to air, setting her rubber gloves and synthetic sweater on fire.

UCLA paid $31,875 in fines for violations including Sangji’s lack of a special fire-resistant lab coat and lack of proper employee training.

However, it appealed the citations for a technical reason: so that the citations couldn’t be used against UCLA in any future proceeding, such as a lawsuit.

In a written statement, UCLA said, “The university wants to direct its resources to strengthening laboratory safety programs and building a model for other institutions to follow … our limited appeal of Cal/OSHA’s citations has detracted from that effort.”

Meanwhile, Cal/OSHA chief Len Welsh will oversee a criminal investigation of the fatal fire, according to the Los Angeles Times.

Sangji’s family has criticized Cal/OSHA’s civil probe as inadequate.

If Cal/OSHA finds evidence of a crime, it will turn the case over to the Los Angeles County district attorney’s office for possible prosecution.

In the last two weeks, three undocumented workers have reached settlements totaling $3.85 million for workplace accidents in New York.

A lawyer representing the three men said the message to businesses is clear: If a company employs an illegal immigrant and that person gets hurt on the job, the employer is still responsible financially.

All three were in construction but working on different projects.

An illegal immigrant from Mexico was scalded over large portions of his body by an exploding pipe at a Wall Street construction site and settled his case for $2.5 million.

A second undocumented Mexican worker suffered severe injuries to his left foot and other parts of his body when a beam fell on his lower body at a building site in Manhattan. The worker settled his case for $750,000.

The third worker, from Ecuador, was injured at a construction site in Queens when three 44×10-foot trusses, each weighing 200 pounds, fell on him. He suffered a fractured hip and other injuries. His settlement is for $600,000.

This worker said at a news conference, “The contractor tried to blame me.” When asked what message he would give to other workers, he said, “Don’t be afraid to talk to a lawyer.”

Joel Magallan of Asociacion Tepeyac, an immigrant advocacy group, said, “They [undocumented immigrants] have to know today that they have rights — the same rights as other workers who are U.S. citizens or permanent residents.”

Let us know what you think of this story in the Comments Box below.

An official says UCLA is appealing the citations so that they can’t be used against the university in any future proceeding, such as a lawsuit or criminal prosecution, according to the Los Angeles Times.

Lab assistant Sheri Sangji was transferring about 2 ounces of t-butyl lithium from one sealed container to another when a plastic syringe came apart in her hands.

The chemical ignited when it was exposed to air, setting her rubber gloves and synthetic sweater ablaze. She was burned over about half of her body and died 18 days later.

Part of the fine, $18,000, was for Sangji’s lack of a lab coat. UCLA was also fined for lack of proper employee training.

UCLA’s fear of further action against it is quite real. Cal-OSHA regularly refer workplace fatalities to district attorneys for review.

Sangji’s sister is calling for a DA investigation, and more than 1,300 people have signed an online petition calling for one.

Another possibility is a lawsuit by a labor union. Sangji’s family may be prevented from filing a lawsuit because of laws that make workers’ comp the exclusive remedy for relatives of a killed employee.

As part of its investigation, Cal-OSHA noted UCLA had not addressed deficiencies found in its own internal safety inspection two months before the fatal fire, including a finding that workers weren’t wearing lab coats.

Lesson for other companies: If your own internal safety audit finds deficiencies, not taking quick action can prove costly.

Blanket policies barring employees on light or limited duty from working overtime violate the Americans with Disabilities Act, according to the Equal Employment Opportunity Commission.

That’s the upshot of a case involving United Airlines. In a consent decree filed in federal court, the company has agreed to pay $850,000 to settle an EEOC disability-discrimination lawsuit.

From 1998 to 2003, the airline had a policy that denied overtime work to employees who were on light or limited duty.

Samuel Chetcuti, a United employee at the San Francisco airport, filed a claim against the company.

Chetcuti has epilepsy and was under medical restrictions that prevented him from operating heavy machinery or working “at heights.”

United considered Chetcuti on light duty. He was medically cleared to work overtime, but United’s policy prevented him from doing so.

A consent decree between United and the EEOC states that the airline “shall not discriminate against United employees at San Francisco International Airport on the basis of disability regarding eligibility for overtime.” United ended the overtime restriction in 2003.

EEOC attorney William Tamayo said United’s former overtime policy ran “counter to the ADA’s goal that each employee be evaluated individually on whether they can get the job done, with or without an accommodation.”

One of the best ways to reduce workers’ comp costs is to have a light-duty program already in place for injured or disabled workers.

Does your company have a light-duty program in place for employees who are injured or who are diagnosed with a medical condition? Let us know about it in the Comments Box below.

John Keenan crashed his car into another driven by Laurie Riley. Her husband, Gregory, was a passenger.

While her husband’s injuries were minor, Laurie suffered knee and pelvis injuries that left her unable to work.

The Rileys claim Keenan’s long work shifts at Glen Habina & Sons, Inc., were partially to blame for the accident.

Keenan usually worked eight-to-nine hour days as a vehicle driver. But sometimes, after he completed his driving shift, he worked several more hours repairing vehicles.

On the day of the accident, Keenan worked his regular shift but didn’t work any extra hours repairing vehicles.

After work, he went to at least one bar. After the accident, his blood-alcohol level was measured at .178. At trial, an expert estimated that Keenan had consumed 13 12-ounce beers before the accident.

The Rileys claimed the combination of work fatigue and alcohol consumption caused the crash and sought to hold two bars and his employer responsible.

Good news for employers: A jury and then a state appeals court both ruled sensibly. They found that the alcohol consumption was a factor in the crash, but not work fatigue because on the day of the crash he hadn’t worked long hours.

The appeals court noted other courts have found employers liable when their employees cause auto accidents after required long work shifts.

But the court said that wasn’t the case here. Keenan worked only nine hours on the day in question, and he had a sufficient rest period — at least 13.5 hours — before his previous shift.

Who has more work during the down economy? A lawyer who represents people injured on the job expects he may be getting more work.

Scott Gennarelli, an attorney with Salenger, Sack, Schwartz & Kimmel in Woodbury, NY, says the economy could lead to companies cutting corners with safety. And of course, that could lead to more workplace injuries — and related lawsuits that his firm handles.

In a Long Island Business Review story headlined, “Down economy ups risk of construction injuries,” Gennarelli says economic pressure on builders could lead them to try to save money by having fewer workers do the same amount of work, rushing construction or saving money on materials.

According to Gennarelli, “There are incentive clauses. If contractors finish earlier, they get a bonus. If they’re late, there are penalties. That leads to pushing workers to get work done.”

Another point of view

A contractor quoted in the story, who asked to remain anonymous, provides a different point of view.

He says a down economy isn’t likely to change some companies. “There are always people who cut corners. Will people cheat when times get tough? Some people will never cheat.”

And speaking of cheating, another unidentified contractor quoted in the story says he’s seen a surge in workers’ comp claims among people about to be laid off.

“This is a pattern I’m observing,” the contractor said. “It was brought to me by my comptroller who said we’re having workmen’s comp claims for very minor injuries that seem to occur in the couple of weeks before we downsized.”

Example: An employee who fears a layoff may file a report complaining of a pulled muscle. It’s an injury that’s difficult to disprove.

After being laid off, the employee uses the previously filed report to apply for comp.

Have you experienced a recent rise in workers’ comp claims? Is this a pattern you’ve experienced in previous recessions? What sorts of bogus workers’ comp cases have you encountered?

Let us know in the Comments Box below.

“Silence clause aims to keep Turkey Point workers quiet” claims a recent headline in the Miami Herald about a nuclear power plant in Florida.

A former employee, Thomas Saporito claims that a clause in bonus agreements has caused workers to be afraid to make complaints about safety. Saporito has sued Florida Power & Light, the plant’s owner, numerous times claiming he was fired because of his persistent complaints about safety. FPL has repeatedly won in court.

The newspaper obtained one bonus agreement that contained this language: “The employee shall not, at any time in the future and in any way … make any statements that may be derogatory or detrimental to the company’s good name.”

An FPL spokesman says the utility encourages anyone working at one of its nuclear power plants to identify safety concerns without fearing reprisal.

What do you think? Could such language contained in a contract discourage employees from speaking up about safety? Let us know in the Comments Box below.

Employees who complain about workplace safety and then are fired can successfully sue to get their jobs back, along with back pay and benefits. But is an unlanded punch from a co-worker enough to make a workplace unsafe?

A federal court ruled recently in such a workplace violence case. Here’s what happened:

Cesar Ferrer sued his former employer, T.L. Cannon Management Corp., claiming he was fired for complaining about his perceived lack of safety in the workplace.

Ferrer says he was fired after telling his manager that a co-worker threw a punch at him and missed, and that the co-worker assaulted another employee about a year earlier.

Connecticut law provides grounds for a wrongful discharge claim when an employee is fired for refusing to work in conditions posing an “objectively substantial risk of death, disease or serious bodily injury.”

The company argued that Ferrer didn’t meet that standard in his claim.

While the court said the danger posed to an employee by an unstable co-worker may be sufficiently serious in exceptional cases to satisfy the objective standard, Ferrer didn’t satisfy the standard.

The court said Ferrer must show more than this, such as that his co-worker had a known propensity for violence and specifically threatened him with serious bodily harm.

So the federal court dismissed Ferrer’s claim, but it did give him 21 days to file an amended complaint. No word from his lawyer on what he plans to do.

What is an employer’s responsibility to its employees when it comes to potentially violent co-workers? Let us know in the Comments Box below.

The same four groups successfully filed court challenges against the rules in 2003 and 2005.

In each case, the D.C. Circuit Court told the Federal Motor Carrier Safety Administration to justify the reasoning behind its rules. Each time, FMCSA re-issued the same rules.

The groups — Public Citizen, Advocates for Highway and Auto Safety, Truck Safety Coalition, and the International Brotherhood of Teamsters — oppose two aspects of the HOS rules:

• the increase from 10 to 11 hours of permissible consecutive driving, and
• the provision that enables commercial drivers to restart their weekly on-duty limits after taking 34 consecutive hours off.

In a letter to Secretary of Transportation Raymond LaHood, the groups say they filed the lawsuit because “longer driving and working hours are unsafe and promote driver fatigue.”

They cite a 2008 survey by the Insurance Institute for Highway Safety that more commercial drivers operate their vehicles when sleepy and report higher incidents of falling asleep at the wheel now than under the previous HOS rule.

What if the court throws out the HOS rules again? The old rules (10 hours of consecutive driving, no 34-hour restart) would go into effect until FMCSA takes action.

And what FMCSA does could be different this time because of the change from the Bush to the Obama administration.

Just how tricky is it to use tests to weed out injury-prone workers without getting dragged into court for alleged discrimination? Statistics from the U.S. Equal Employment Opportunity Commission spell it out.

From 2003 to 2006, the number of charges of job discrimination filed with the EEOC regarding employment testing and other screening tools went up 542%.

One example: EEOC v. Dial Corp., in which a federal court has held that a strength test didn’t sufficiently mirror the job and disproportionately screened out women.

Have pre-employment tests to screen out injury-prone workers become too risky? No, and in fact, the EEOC itself has released guidelines for companies to make sure they don’t run afoul of federal anti-discrimination laws when using pre-employment tests.

‘Disparate impact’

What kind of problem is the EEOC looking for? Besides blatant discrimination, there’s the situation in the Dial case called “disparate impact.”

For example, if an employer requires all applicants to pass a physical agility test, does the test disproportionately screen out women or older workers?

If that’s the case, the company needs to show that the selection procedure is job-related and consistent with business necessity. Dial ran into trouble because its test was more difficult than the actual work.

Even if the employer shows the test is job-related, the company can still find itself in trouble if another test is a workable, less discriminatory alternate.

Employer best practices for testing

Companies can steer clear of discrimination connected to post-offer testing if they follow these steps:

• Ensure that tests are valid for the positions for which they’re used.
• Administer tests without regard to sex, race, color, national origin, religion, age or disability. In other words, if you test one applicant, test all.
• If testing screens out a protected group, the employer should at least try to find an equally effective process that has a less adverse effect on the group.
• Employers should change testing if job requirements change. Example: If some lifting is eliminated with new equipment, testing for that type of lifting should be eliminated.
• Let hiring managers know that they can’t casually adopt physical testing. HR and safety should be involved before any new tests are launched.

For more on the EEOC’s guidelines, click here.

A woman who claims she was disabled by a co-worker’s perfume can move forward with her workers’ comp lawsuit.

Doris Sexton sued the Cumberland Manor nursing home, claiming perfume sprayed by her co-worker left her permanently disabled and unable to work.

She said the co-worker sprayed perfume near her at least three times on one day.

Sexton had a chronic lung condition that resulted from smoking a pack of cigarettes a day for 43 years. She claims the perfume made her illness worse.

A lower court in New Jersey ruled that her reaction to the perfume didn’t arise out of her employment.

Should the company have to pay?

But an appeals court said her employer can be held liable because the exposure happened at work.

The court said, “The air Sexton had to breathe in order to fulfill her contract of service, contaminated by a co-employee, was a condition of the employment for Sexton and thus a risk of this employment for her.”

Now the case goes back to the lower court for trial to determine whether Sexton will receive comp payments.

Since the perfume incident, Sexton has been largely dependent on an oxygen tank to breathe and has been unable to work, according to her lawyer.

She was hospitalized on the day of the incident, where she stayed for almost a month.

Robert Malestein, a lawyer representing Sexton’s former employer, said, “If you tell people that this is a woman with a chronic medical condition who smells some perfume and gets sick, should people have to pay for that?”

What do you think of this case? Let us know in the Comments Box below.

Federal investigators say the engineer, Robert Sanchez, sent a text message 22 seconds before his train collided with a Union Pacific freight train on Sept. 12, killing 25 and injuring more than 130.

A Connex employee said he called managers of the railroad about Sanchez’s constant cellphone use about two weeks before the disaster.

The lawsuit also claims that, some months before the crash, a Connex inspector found Sanchez’s cellphone turned on, which violated company rules against engineers using the devices while on duty.

Sanchez is among those who died in the crash.

Attorneys filed an amended lawsuit on behalf of 23 plaintiffs, including passengers who were injured or killed and their spouses.