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Legal Report March 2005


Safety. The New York high court has ruled that an employer who has provided adequate safety devices cannot be sued by an employee who failed to make use of these devices.

Timothy Cahill was employed by a construction company doing repairs to the Triborough Bridge in New York City. His work required him to climb up and down construction walls known as forms. To protect against falls, employees wore safety harnesses with lanyards that could be attached to a hook on a safety line. This safety line would prevent the employee from falling more than a short distance.

Cahill attended frequent safety lectures, which included instructions on how to use the safety lines. His supervisor, Anthony Dellamorte, caught Cahill climbing up a form without using the safety line. Cahill was reprimanded.

Two weeks later, Cahill climbed a form without using the safety line. He slipped and fell approximately 15 feet, sustaining several injuries.

Cahill sued the owner of the Triborough Bridge and Tunnel Authority alleging that it had violated labor laws by creating an unsafe workplace. The New York Supreme Court ruled in favor of Cahill because he had not disobeyed an immediate instruction to use the safety line. The defendants appealed the decision.

The state’s high court, the New York Court of Appeals, reversed the decision, finding that Cahill’s own actions were the sole cause of the accident and that, therefore, no liability existed. The court clarified that while an employee’s negligence does not necessarily absolve an owner or contractor of liability, a plaintiff must show that the defendant somehow violated safety statutes. In this case, ruled the court, the defendant did not violate any rules. The plaintiff’s own conduct caused his injuries. (Cahill v. The Triborough Bridge and Tunnel Authority, New York Court of Appeals, No. 174, 2004)


ADA. The Equal Employment Opportunity Commission (EEOC), in conjunction with the Food and Drug Administration (FDA), has issued guidelines for employers in the food service industry. The guidelines discuss the basic rights of employees in this job sector and offer examples for business owners in how they should handle disabled employees.

The guidelines include information on dealing with employees that have one of four transmittable illnesses that can easily be spread through food. These “big four” pathogens include transmittable forms of salmonella, E. coli, shigella, and hepatitis A.

According to the guidelines, an employer may not ask an applicant if he or she is infected with one of these illnesses, but is free to ask after a conditional offer is made. However, if the employer will ask anyone this question after an offer is made, it must ask all potential employees, to avoid claims of discrimination.

If the applicant is infected with one of the big four, an employer may legally rescind the offer if no reasonable accommodation could be found to eliminate the risk that the disease could be transmitted.

An employer in the food-service industry may require that employees report any symptoms of the big four illnesses and be tested for them. If an employee is diagnosed with one of these maladies, he or she must be barred from the workplace until the employer gets approval from a local health inspector and a note from the employee’s doctor denoting that the illness has run its course.

According to the guidelines, it is illegal for the employer to publicize the name of the employee who has been diagnosed with one of these illnesses. Similarly, the employer may not announce the ill employee’s name to other workers. However, the employer may announce to the staff, and the public if necessary, that a worker has been diagnosed with a transmittable disease, such as hepatitis A. Other staff members should then be tested for the disease. Also, all medical records must be kept separate from an employee’s personnel file and be protected from unauthorized access.

As a general rule, the guidance notes that employers may not routinely ask for medical information from employees, even if an employee’s performance worsens and the employer suspects a medical cause. Instead, the employer must address the performance issues at hand. However, employers may ask an employee about his or her medical condition if such a condition is dangerous.

The guidelines present the example of a grill cook who reports to a coworker that she often feels dizzy at work. In that case, in an effort to protect the employee and other coworkers from a potentially dangerous situation, the employer may ask the cook about his or her medical conditions.


Homeland security. Many of the broad homeland security and intelligence issues before Congress this term will be addressed by the Senate Homeland Security and Governmental Affairs Committee, chaired again by Sen. Susan Collins (R-ME). In announcing the committee’s agenda, Collins stressed overseeing and improving the Department of Homeland Security and monitoring the outcome of new intelligence legislation. The committee also plans to investigate sources of terrorism financing.

In addition, Senate Majority Leader Bill Frist (R-TN) announced that antiterrorism legislation (S. 3) introduced by Sen. Judd Gregg (R-NH) will be a priority. S. 3 would increase penalties for attacks against rail systems, passenger vessels, and mass transit. The bill also includes provisions designed to aid vaccine production and protect drug companies from liability related to vaccine programs.

Border security. James F. Sensenbrenner (R-WI), chairman of the House Judiciary Committee, has announced his plans to reintroduce border-security legislation that was cut from last year’s intelligence bill. The legislation will require increased security standards for issuing drivers’ licenses and updating immigration provisions to keep terrorists out of the United States.

Identity theft. Sen. Dianne Feinstein (D-CA) has announced plans to reintroduce identity theft legislation. Feinstein, who serves on the Judiciary Committee, introduced similar legislation in the previous Congress which was approved by the Senate but was not taken up by the House.

The legislation would prohibit the sale or display of Social Security numbers to the general public, set national standards for database security, and establish guidelines for companies that send customer information overseas for processing.


North Dakota

Private security. A bill (H.B. 1086) currently pending in the North Dakota Assembly would allow private security personnel to carry firearms while on duty in a gaming establishment or a business that sells liquor. Under current state law, private security personnel are not allowed to carry firearms while working in such businesses.


Private investigators. Lawmakers in Maine have enacted a new law (formerly H.B. 735) governing investigators from other states. The new law will allow investigators from other states to act legally in Maine without obtaining a Maine license, but only in certain circumstances.

The investigator must hold a valid private investigator’s license from his or her home state. That state must have a reciprocity agreement with Maine and the case being investigated must have originated in the investigator’s home state. The out-of-state investigator may not spend more than 15 days investigating in Maine, may not solicit business in the state, and may not establish a business.

This column should not be construed as legal or legislative advice.