Category Archives: Medical News

In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?

When  our military men and women fight for our country, they are willing to sacrifice the most cherished aspect of their being, their life and all that it entails including their family, friends, dreams and desires. What do they get in return if they need health care?  The subject of health care to our veterans has become public news, but it is really not a new problem. The ability of the VA to provide health care to our veterans has been a major challenge for decades. What is worse is the huge dollar amount paid out for approximately 3,000 medical malpractice claims. Hence, the level of care and treatment as evidenced by the VA paying out over $100 million each year in the last decade leaves much to be desired. And, that is only part of the equation. We are not talking about money, but actual individuals who gave 150% to fight for our freedom, but receive inadequate care and attention.

The above referenced lawsuits have occurred all over the country rather than concentrated in one region or at one, two or a small handful of particular VA hospitals. Moreover, these cases include all types of substandard care, including the failure to diagnose a medical condition or illness, prescribing the wrong medicine or drugs and simply bad surgeries.It is not a matter of finding someone to blame, it is the hard truth that lives are at stake;while  the medical care should be provided at an optimum level, it is far too frequently deemed below the standard of care.

Certainly, the resignation of VA Secretary Eric Shinseki, offers little in the way of confidence that anyone else will fix the problems that are endemic to the VA as they mirror those found in most forms of government. This is not meant to be a political attack, and it is not about being conservative or liberal, Democrat, Independent, or Republican. but an undeniable and harsh reality. Our government agencies, departments, policies, procedures and operations, whether city, county, state or Federal, are simply not operated for profit,which is the very engine that drives people and business to succeed. Whether one calls it accountability, a burning desire to succeed,extremely high energy, and/or an optimum level of action and responsibility, the motivation of private enterprise is simply lacking in the business of government.This is not an indictment of government as a whole, but an observation that seems to be missing when the subject comes up.  Regardless of your perception or the truth about government and/or the VA, our soldiers and military deserve much better. Let’s fight for them as they fight for us!