Disability Discrimination and Workplace Safety - PowerPoint PPT Presentation

Loading...

PPT – Disability Discrimination and Workplace Safety PowerPoint presentation | free to view - id: 152849-MDRlZ



Loading


The Adobe Flash plugin is needed to view this content

Get the plugin now

View by Category
About This Presentation
Title:

Disability Discrimination and Workplace Safety

Description:

Americans with Disabilities Act of 1990 prohibits discrimination in employment ... Americans with Disabilities Act (ADA) ... AMERICANS WITH DISABILITIES ACT ... – PowerPoint PPT presentation

Number of Views:697
Avg rating:3.0/5.0
Slides: 50
Provided by: Judith4
Category:

less

Write a Comment
User Comments (0)
Transcript and Presenter's Notes

Title: Disability Discrimination and Workplace Safety


1
Disability Discrimination and Workplace Safety
  • CHAPTERS 10 and 14

2
Myths About DisabilityDiscrimination
  • A question on an application form about specific
    disabilities of an applicant is not improper
  • If an employer would have to alter the working
    environment to accommodate a disabled applicant
    or employee, that person is not qualified for the
    position

3
  • Employees with disabilities have many more rights
    to their jobs than do disabled applicants
  • Individuals with disabilities generally are
    incapable of performing the jobs for which they
    apply
  • If someone does not have a disability but others
    believe she or he does, that person is still not
    protected against discrimination

4
  • Individuals with disabilities only create
    liability for employers and are not good,
    productive employees
  • If an applicant with a disability applies for a
    job, the employer must hire that applicant
  • HIV status is not a disability under the ADA
  • Only physical disabilities are protected under
    the ADA

5
  • Employers must give any and all accommodations
    requested by employees with disabilities
  • If an applicant needs a reasonable accommodation
    for a pre-employment test, that applicant is not
    qualified

6
Statutory Basis
  • Americans with Disabilities Act of 1990 prohibits
    discrimination in employment based on disability
  • Vocational Rehabilitation Act of 1973 prohibits
    discrimination based on disability in receipt of
    benefits under any program receiving Federal funds

7
Disproving Old Barriers
  • Groups with disabilities not covered under Title
    VII
  • Many employers refused to hire disabled
    applicants
  • Disabled applicants had to prove themselves far
    more than those not disabled
  • Employers should strive to be disability-blind
    and evaluate based on competence

8
Regulation
  • Vocational Rehabilitation Act of 1973
  • Applies to government and any firm doing business
    with government
  • Section 503 requires affirmative action on the
    part of federal contractors and agencies
  • Did not protect private sector employees

9
  • Americans with Disabilities Act (ADA)
  • Became effective in 1992
  • Applies Rehabilitation Act standards to most
    private employers
  • Protects disabled from three types of barriers
  • Intentional discrimination
  • Neutral standards with disparate impact
  • Discrimination based on barriers that could be
    overcome with accommodation

10
AMERICANS WITH DISABILITIES ACT
  • In order to be covered by the employment
    provisions of the Americans with Disabilities
    Act, both of the following must be true of the
    employee
  • The employee has a DISABILITY because one of the
    following is true
  • S/he has an impairment that SUBSTANTIALLY LIMITS
    a MAJOR LIFE ACTIVITY,
  • S/he has a RECORD of having such an impairment,
    OR
  • S/he IS REGARDED by the employer as having an
    impairment,
  • AND
  • The employee is a QUALIFIED
    INDIVIDUAL because the
  • following are true
  • S/he can perform the ESSENTIAL FUNCTIONS of the
    job either
  • With or without REASONABLE ACCOMMODATIONS that do
    not impose an UNDUE HARDSHIP.

11
  • Employers must be proactive
  • To claim discrimination, employee must prove
  • That he or she is disabled
  • That he or she is otherwise qualified
  • That any accommodation required is reasonable
  • That he or she suffered an adverse employment
    decision

12
  • ADA defines disability as a physical or mental
    impairment that substantially limits one of more
    major life activities of an individual a record
    of having such an impairment being regarded as
    having such an impairment
  • Mental impairments and contagious diseases may be
    included
  • EEOC gives guidelines for major life activity
    and substantially limits
  • Including perception of impairment protects
    disabled employees from prejudice

13
TERMS
  • Disability
  • Substantially limits
  • Major life activity
  • Record or is regarded
  • Qualified individual
  • Essential functions
  • Reasonable accommodations
  • Undue hardship

14
  • See Toyota Motor Mfg., Kentucky, Inc. v.
    Williams, 534 U.S 184, 122 S. Ct. 681, 151
    L.Ed.2d 615 (2002)

15
  • Disabled employee must be otherwise qualified for
    position
  • Must be able to perform the essential
    (fundamental) functions of the position
  • Employee may require and request reasonable
    accommodation
  • The removal of unnecessary restrictions or
    barriers
  • Does not place undue hardship on employer
  • Disability harassment is also prohibited under ADA

16
Reasonable accommodations interactive process
  • 4 steps
  • 1.The employer analyzes the job to determine its
    purpose and essential functions.
  • 2. The employer and employee work together to
    identify what barriers exist to the employees
    performance of a particular job function.
  • 3. The employer, working with the employee,
    should identify a range of possible
    accommodations.
  • 4. The employer should assess the effectiveness
    of each accommodation and the preference of the
    employee, and then determine if any of the
    accommodations would impose an undue hardship

17
  • See Karraker v. Rent-A-Center, Inc., 411 F.3d
    831, 2005 U.S. App. LEXIS 11142 (7th Cir. 2005)

18
Effect on the Actions of Employers
  • Potential liability of employer based upon tort
    theory
  • Employer has a duty to protect employees
  • Employer must not disclose unnecessary medical
    information
  • Employers engage in genetic testing at their own
    risk

19
Parental Leave Policies The Family and Medical
Leave Act
  • Entitlement to leave
  • FMLA guarantees employees who have been on the
    job at least a year up to 12 weeks of unpaid
    leave per year for
  • A birth
  • An adoption
  • Care of sick children, spouses, parents or their
    own illness
  • Requirements
  • Employer
  • Vacation
  • Medical confirmation
  • Affects about 5 percent of U.S. employers and
    about 40 percent of U.S. employees
  • Employer confusion

20
Workplace Safety
21
Workers Compensation
  • State law
  • Benefits for work-related injuries and illnesses.
  • Benefits might be paid by
  • Insurance company
  • Employer
  • State

22
Work-related injury or illness
  • Must occur within the scope of employment
  • Must not be intentional self-inflicted
  • Employee must not be drugged or intoxicated

23
Workers Compensation statutes began being passed
in the early 1900s
  • Before that employers had a number of defenses if
    an employee was injured
  • Contributory negligence
  • Assumption of risk
  • Fellow-servant rule

24
What does Workers Compensation typically cover?
  • Medical bills
  • Lost income (2/3 of salary. Not subject to income
    tax.)
  • Recovery for loss of use of body parts.
  • Rehabilitation
  • Death benefits for dependents

25
Who is covered?
  • In some states, employers do not have to provide
    coverage if they have fewer employees than a
    certain number. (In GA, it is 3.)
  • Some workers are covered under similar federal
    laws
  • Federal Employers Liability Act
  • Longshore Harbor Workers Compensation Act
  • Merchant Marines Act (Jones Act)

26
Advantages to Workers Compensation
  • Employer is strictly liable
  • Do not care who is at fault
  • Less for employee to have to prove. Should be
    paid faster

27
Disadvantages to Workers Compensation
  • Employees collect less than in a lawsuit
  • Workers Compensation is the exclusive remedy
    against the employer. The employer can not be
    sued in negligence.
  • What additional damages could an employee collect
    if s/he could sue in negligence?
  • 100 lost income (unlimited)
  • Pain and suffering
  • Punitive damages

28
  • Employee cannot sue the employer in negligence,
    but what about a third party?
  • Employer/insurance carrier usually have a right
    of SUBROGATION.

29
What defenses can an employer raise?
  • Worker is not an employee. S/he is an independent
    contractor.
  • Not work related. Not within the scope of
    employment.
  • Employee is actually able to work.

30
  • Georgia State Board of Workers Compensation

31
  • See SMB Stage Line, Inc. v. Leach, 204 Ga. App.
    229, 418 S.E.2d 791 (1992)
  • See Collie Concessions, Inc. v. Bruce, 272 Ga.
    App. 578, 612 S.E.2d 900 (2005)

32
Statutory Basis
  • The Occupational Safety and Health Act requires
    employers to provide a place of employment free
    from recognized hazards and to comply with other
    standards under the act
  • It also requires employees to comply with health
    standards and rules applicable to his or her own
    actions

33
Safety at Work
  • Prior to the act in 1970 there was no
    comprehensive requirement for employers to
    provide safe working conditions
  • Three common law defenses often allowed employers
    to escape liability
  • Contributory negligence
  • Assumption of risk
  • Fellow servant rule

34
  • Act covers any employer that is in a business
    affecting commerce
  • Requires employers to comply with standards set
    by Department of Labor
  • Compliance requirements
  • Requires employers to provide workplace free from
    recognized hazards
  • General duty clause
  • Workplace death rate cut in half since act

35
Excluded from Coverage
  • All Governments
  • Family business
  • Self-employed
  • Rail Roads
  • Mining
  • Nuclear
  • Farms employing 25 people or less

36
Procedure for Enforcement
  • Occupational Safety and Health Administration
    (OSHA) administers act
  • Inspects workplaces without prior notice
  • Penalties may be assessed
  • Standards set by National Institute for
    Occupational Safety and Health
  • Managers may be held personally liable for
    offenses

37
Compliance Provisions
  • Some specific regulations apply to nearly all
    types of employers
  • Adequate ventilation, emergency exits, safety
    nets, guard rails
  • Proper training for employees
  • Continual-training requirement
  • Medical exams for exposure to toxic substances
  • Driver training, seat-belt usage, vehicle
    inspection

38
When why does OSHA inspect?
  • Imminent danger
  • A death or 5 or more employees are hospitalized
  • Legitimate employee complaint
  • Special program or projects
  • Random
  • Re-inspection

39
  • Does OSHA need a search warrant?

40
  • Developing and enacting new standards can take
    some time.
  • Emergency temporary standards may be set when
    employees are exposed to grave danger from
    exposure to substances and the standards are
    necessary to protect the employees from danger

41
General Duty Clause
  • Requires employers to provide each employee
    employment and a place of employment free from
    recognized hazards that cause or are likely to
    cause death or serious physical harm
  • Recognizable hazards may actually be known by the
    employer or recognized by the industry

42
  • Likely to cause serious physical harm or death
    has been construed to mean possible
  • Since OSHA has not addressed HIV/AIDS exposure
    with a specific standard, the general duty clause
    may apply
  • OSHA does not hold employers liable for
    employees home offices, but considers cars
    virtual worksites

43
  • Employers have been held liable for repetitive
    use injuries although there are no specific
    standards
  • Employees may refuse to work in an unsafe work
    environment without fear of retaliation
  • OSHA has guidelines, but no rules, on workplace
    violence
  • General duty clause may apply

44
How serious a fine should OSHA impose?
  • OSHA will consider
  • Number of same violations
  • Severity of hazard
  • Number of employees exposed

45
Penalty Adjustments fines can be reduced by a
percentage
  • OSHA will consider
  • Good faith
  • Size of the business
  • History (safety record)
  • Abatement period was too short

46
Appeals
  • Employers can appeal citation, fine or abatement
    period
  • Employees can appeal only abatement period

47
Employer Reporting Responsibilities and Employee
Rights
  • OSHA has strict reporting requirements
  • Work-related incidents must be reported within 6
    days
  • Work-related accidents resulting in
    hospitalization or death must be reported within
    48 hours
  • Employees also have rights which must be posted
    or communicated to them by their employers

48
Employer Defenses
  • Reckless behavior by employees may minimize
    employer liability
  • Physical or economic impossibility of compliance
    may apply if OSHA has issued a variance
  • Employee reduction of risk may apply if the
    workplace cannot be made safe
  • Greater hazard defense applies when compliance is
    more dangerous than noncompliance

49
Guidance?
  • Employers should have standard procedures for
    accident investigation
  • Efforts should be made to remove actions leading
    to injury or accident
  • Employers should implement training programs to
    teach proper usage of materials or machines
About PowerShow.com