Why Employers Should Think Twice Before Making Employees Play Hurt

Published: February 11, 2015

By Anthony Daye

Recently, my Alma Mater, The University of Southern California, was sued by a former member of the Trojan football team. Former cornerback Brian Baucham filed a lawsuit against USC and former coach Lane Kiffin, alleging he suffered permanent injuries after being forced to play in a game while he was ill. Baucham’s lawsuit claimed that he was “forced by Coach Kiffin to play a home game even though Mr. Baucham was very ill and diagnosed by the USC Health Clinic with an influenza-like illness, viral pharyngitis and dehydration.” After playing in a game against Berkeley, “Baucham suffered from cardiopulmonary damage, as well as brain injury with neurocognitive deficits,” according to the lawsuit. Baucham alleges that USC and Kiffin violated both the NCAA and USC injury protocol programs when they forced him to play.

This got me to thinking: Now that the National Labor Relations Board has found that scholarship football players are employees under the NLRA, what if Mr. Baucham filed suit against USC as an employee?

What causes of action could an employee have against an employer that forces them to work when they are injured or seriously ill?

Failure to Reasonably Accommodate a Disability: The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act require that most employers provide qualified individuals with disabilities with reasonable accommodations. Whether or not the employee has a qualifying disability should always be carefully analyzed. For example, an employee’s bad back or sprained knee can be a disability; telling them to “tough it out” is not a reasonable accommodation. Keep in mind that time off of work may be considered a “reasonable accommodation” depending on the circumstances.

Workers’ Compensation – Aggravation of Pre-Existing Injuries: Even if an employee has a pre-existing injury that is bothering him/her at work (i.e. a skiing injury), forcing an employee to “fight through the pain” may cause the employee to aggravate the pre-existing injury. This essentially means that the employee’s injury is now worse than it was before, which will likely lead to a workers’ compensation claim. This is similar to what Baucham alleges in his law suit against USC.

FMLA Violation: The Family and Medical Leave Act (FMLA) provides for job protected leave and benefits coverage entitlements to employees who meet FMLA eligibility requirements. FMLA regulations define a “serious health condition” as an illness, injury, impairment, or physical or mental condition that requires the employee to be away from work. For example, if an employee comes to his/her employer with a doctor’s note for a Crossfit injury and needs a week off during the busiest time of the year, the employer has to allow the leave if the employee has:

(a) worked for the employer for at least 12 months;

(b) has worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and

Because this employee is an avid Crossfitter, he/she repeatedly shows up injured to work needing days off at a time. This means the employer must repeatedly allow the employee to take time off for qualifying injuries, up to 12 weeks per year.

In addition to the traditional employment claims, there is nothing to stop and employee from tacking on non-traditional claims such as negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress to name a few. Moreover, both injured employees and their coworkers may have claims against employers based on general negligence (similar to negligent hiring) and OSHA regulations.

Suffice it to say, employers should think twice before requiring injured employees to “take one for the team” and work through pain as a condition of continued employment.