Disability Discrimination and Workplace Safety

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Disability Discrimination and Workplace Safety

• CHAPTERS 10 and 14

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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

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• 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

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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

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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

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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

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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.

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• 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

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• 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

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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

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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)

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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

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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

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Workplace Safety
21
Workers Compensation

• State law
• Benefits for work-related injuries and illnesses.
• Benefits might be paid by
• Insurance company
• Employer
• State

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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

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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

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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

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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)

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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

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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

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

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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.

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• Georgia State Board of Workers Compensation

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• 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)

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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

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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

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• 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

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Excluded from Coverage

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

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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

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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

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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

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• Does OSHA need a search warrant?

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• 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

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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

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• 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

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• 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

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How serious a fine should OSHA impose?

• OSHA will consider
• Number of same violations
• Severity of hazard
• Number of employees exposed

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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

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Appeals

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

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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

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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

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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