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Can Medication Side Effects Be a Disability Under ADA

A federal appeals court recently dealt with the following question: “Can the side effects of prescription medications qualify as disabilities all by themselves?” According to the case of Sulima v. Tobbyhanna Army Depot et al, the answer is “yes.”

A civilian employee at the Tobyhanna Army Depot in Pennsylvania was deemed to have sleep apnea. According to his doctors, it was likely caused by his obesity. In order to assist him in losing weight, and decrease the symptoms of the sleep disorder, the man was prescribed a medication “bind” a portion of the fat in his diet. Unfortunately, a side effect of the medication caused the individual to frequently go to the rest room.

According to court papers, the man spent two hours one day in the bathroom. Over time, the man was laid off. He then sued, claiming he’d been terminated due to his disability — the side effects of the prescribed weight-loss meds. The court was then charged with deciding if the man’s bathroom difficulties due to his weight loss medicine was covered under the Americans with Disabilities Act (ADA).

The judge ruled no — but only due to the fact the employee had the choice to ask his doctor to change his meds. Otherwise, the judge also ruled side effects from medication and medical treatments could qualify as disabilities. (workersxzcompxzkit)

Due to the fact the man had other options for treatment, his prescription didn’t fall under the umbrella of “required in the prudent judgment of the medical profession,” according to the court.

Author Rebecca Shafer, Consultant/Attorney, President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.

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Retaliatory Discharge Borrowed Employees Are Protected As Well

A borrowed employee filed a retaliatory discharge action against the borrowing employer, contending that one day after she testified, under threat of subpoena, in a workers' compensation proceeding filed by one of defendant's employees, the borrowing employer told her that her services were no longer needed.

Defendant contended that plaintiff could not maintain a retaliatory discharge cause of action since she was not defendant's employee, that plaintiff had never been on defendant's payroll, that she had not been fired by defendant and was free to work for her employer at any time and at any work. (WCxKit)

The appellate court observed that all rights and remedies of the Workers Compensation Act applied to borrowed employees, that a borrowing employer is primarily liable for the payment of a borrowed employee's workers' compensation claim, and that the public policy considerations which led to recognition of an action for retaliatory discharge equally applied to a claim by a borrowed employee against a borrowing employer. (WCxKit)

Moreover, defendant's argument ignored the nature of a borrowed-employee relationship. In the context of that relationship, the most severe sanction a borrowing employer could impose was to refuse all further work. In that context, the sanction was tantamount to a discharge [Hester v. Gilster-Mary Lee Corporation, 386 Ill. App. 3d 1104, 899 N.E.2d 589 (2008)]. See Larson’s Workers Compensation Law: Ch. 104, § 104.07[1] n.19.1. To read more at Workers Compensation Law Community .

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Posted in Employment Law Issues, Legal Doctrines |

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Should Record of Depression Prevent You From Working

The EEOC charged Health Delivery Inc. stating the firm unlawfully refused to return to work an employee with a record of depression even though she completed a course of treatment and was approved to return to work.

The Michigan health services provider will pay $45,000 and furnish other relief to settle a disability discrimination lawsuit brought by U.S. Equal Employment Opportunity Commission (EEOC). (WCxKitz)

According to the EEOC’s lawsuit (Case No. 2:09-cv-13837 in U.S. District Court for the Eastern District of Michigan), the employee was a capable nurse for more than five years with Health Delivery, but the company refused to return her to work after a leave of absence because of her history of major depression, thus allegedly violating the Americans with Disabilities Act (ADA).

As part of the consent decree resolving the suit (entered by Judge Thomas Ludington), Health Delivery will pay $45,000 to the nurse. Health Delivery also agreed to implement disability discrimination policy changes and to provide training to all of its management and supervisory employees regarding ADA policies. (WCxKitz)

“We are pleased with the relief provided by the consent decree,” said Dale Price, the EEOC attorney who handled the case. “It provides meaningful relief to our client and protections for the employees of Health Delivery. It also reminds employers that they cannot make employment decisions based on fears and stereotypes about people with mental illness.”

Author Rebecca Shafer, President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in ADA (Americans with Disabilities Act), EEOC Discrimination Laws, Employment Law Issues |

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Yes, Bullying in Workplace IS Violence in Workplace

Violence is a growing concern in the workplace, and while many may think of violence as only physical assault, it has a much broader definition.

To help people recognize and report these signs, the Canadian Centre for Occupational Health and Safety (CCOHS) developed informational material depicting various types of behaviors are considered to be workplace violence.

According to Jessie Callaghan, senior technical specialist at CCOHS, and expert in the areas of workplace violence and bullying,

Workplace violence is:

1. ANY act in which a person is abused, threatened, intimidated or assaulted in his or her employment.

2. It’s NOT limited to incidents occurring within the traditional workplace, i.e. –

3. Work-related violence can occur at:

a. off-site business functions

b. at work social events

c. in clients' homes

d. away from work but resulting from work, such as a threatening telephone call to your home from a client

Workplace bullying is a form of workplace violence involving repeated incidents or a pattern of behavior that intimidates, offends, degrades or humiliates a person or group, or is an assertion of power through aggression.

Each of these acts is considered a serious workplace problem and can cause undue stress, anxiety and low morale, ultimately affecting the individual, the employer and productivity as a whole for the organization.

For more information on violence and bullying and to download free PDF posters, please visit the CCOHS website at www.ccohs.ca.

\Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in Canada Workers Comp, Employment Law Issues, WC in Other Countries (International) |

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New York Comp Board Has New Employer Manuals

Two publications explaining to businesses how to remain compliant with workers compensation and disability requirements were recently made available by New York State's Workers Compensation Board.

The Prove It to Move It manual is directed toward employers applying for a government permit, license or contract. Since those businesses must prove they’re complying with New York workers comp and disability benefits requirements, the manual explains the forms and processes necessary to move those applications toward completion. Sample forms are included. Prove It to Move It also explains to governments how to handle the forms, and the information the state must see. (WCxKitz)

The revised Employers’ Handbook provides New York employers with general information regarding their rights and responsibilities under the state’s workers comp and disability programs. The manual covers who needs insurance, the claim process, details on insurance, how to determine who is an independent contractor, handling penalties, and many common questions and scenarios.

Employers with questions can call the Compliance Unit, at 1-866-298-7830.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in Employment Law Issues, NY Workers Comp Issues |

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Discrimination Actions Lead to $45,000 Settlement at Container Manufacturer

The largest manufacturer of metal food containers in North America, Silgan Containers Manufacturing Corp., will pay $45,000 to settle a race discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

The EEOC filed the lawsuit against Silgan on behalf of an African-American man who suffered alleged discriminatory treatment resulted in his termination from Silgan’s Oconomowoc, Wis., facility. In its lawsuit, the EEOC charged Silgan violated federal civil rights law by intentionally delaying the hiring of the man and then firing him because of his race. (WCxKitz)

According to the EEOC, after the man was finally hired, his immediate supervisor – who no longer works for Silgan – subjected Henderson to disparate and discriminatory treatment such as holding him to a higher standard on his work than non-black employees. Finally, the EEOC charged, Silgan fired the employee for racial reasons after less than one month on the job.

U.S. Magistrate Judge William Callahan entered the consent decree resolving the lawsuit on July 1, 2010. In addition to providing monetary compensation to the worker, the two-year decree requires Silgan to notify the EEOC of any complaints of discrimination at its Oconomowoc plant for the next two years. Silgan must report to the EEOC information about its hiring practices at the Oconomowoc facility for the duration of the decree. The company must also train its managers, supervisors and human resources employees in Oconomowoc about their responsibilities under Title VII. (WCxKitz)

“This case demonstrates racial discrimination in the American workplace is a serious and ongoing concern,” said John Rowe, EEOC district director in Chicago. “Employment discrimination has a devastating effect on workers. Fortunately, we were able to alleviate effect in this instance because this worker took action on his own behalf by filing a charge with the EEOC.”

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in EEOC Discrimination Laws, Employment Law Issues |

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Employment Rate of Disabled Is 50 Percent Lower Than Non-Disabled

Attitudes continue to be seen by disabled persons as the single biggest barrier to New Zealander’s living fully productive lives, e.g., access to education, having paid work and appropriate support, according to a report from the Disabled Persons Assembly (NZ) Inc.

The government’s $3 million commitment to promote positive perceptions about disabled persons and to target discrimination provides a real opportunity for change.

“Disabled persons must be central to the planning and design of any public awareness or social marketing program that aims to change behaviors,” said Ross Brereton CEO of DPA. (WCxKitz) DPA as a collective voice has the lived experience of disabled persons and looks forward to working with other disabled persons organizations and with the government on the public awareness program.

The employment rate for disabled persons is a little more than half the employment rate of non-disabled persons. This participation rate remains embarrassingly low and is unacceptable officials said.

Changes in the income tax rates, particularly the lowering of the $14,000 to $48,000 from 21% to 17.5% presents an opportunity to focus on meaningful employment for disabled persons so everyone can share in the economic gains in a significant way.

DPA said it warmly welcomes the investment of $2.3 million over the next three years to promote, protect and monitor the rights of disabled persons. (WCxKitz)

DPA added it is particularly pleased with the $750,000 available to the Convention Coalition responsible for independently monitoring the United Nations Convention on the Rights of Persons with Disabilities.

Author Rebecca Shafer, Consultant / Attorney, President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in Employment Law Issues, Integrated Disability Management, Litigation Management, WC in Other Countries (International) |

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Company Housed 65 Disabled Men in Bunkhouse is Subject to Million Dollar Fine

A Texas-based company, Henry's Turkey Service, shortchanged its mentally challenged workers by at least $1 million and subjected the men to abuse and humiliating forms of discipline, a federal agency has discovered.

The U.S. Equal Employment Opportunity Commission said the labor broker, with company operations in Iowa, acted with malice or reckless indifference in committing numerous major violations of the Americans with Disabilities Act, resulting in significant harm to the workers and "substantial economic benefits" to the company.
"What happened to the men employed by Henry's Turkey Service at West Liberty Foods is nothing short of horrific," Sen. Tom Harkin, D-Ia., said. "And what is particularly galling is that it was allowed to continue for so long. The EEOC appears to have documented a level of abuse more extreme than can be imagined in this day and age."

The EEOC findings could result in compensatory damages to make up for the workers' unpaid wages, or in punitive damages.

For the majority of the past 34 years, Henry's acted as a labor broker, placing mentally challenged Texas men in labor camps around the country where they worked for sub-minimum wages, according to the findings.

In Atalissa, Iowa, Henry's housed at least 65 disabled men in an old bunkhouse and paid those forty-one cents an hour to slaughter turkeys at the West Liberty Foods plant, according to the report.

In February 2009, The Des Moines Register asked state officials about the bunkhouse, its lack of a care-facility license and the workers' wages. A dozen government agencies began an immediate investigation, declared the bunkhouse unsafe and "deplorable," and relocated the 21 men still living there.

The commission's investigation centered on allegations that Henry's and its affiliate, Hill Country Farms, repeatedly violated the Atalissa workers' rights under the Americans with Disabilities Act.

Among the findings:

Henry's collected up to $11,000 per week from West Liberty Foods as payment for the men's labor at the plant. Henry's then paid dozens of workers a combined total of $340 to $500 per week. Over the last three years of the company's operation, Henry's underpaid the men by at least $1 million, based solely on minimum-wage violations. (workersxzcompxzkit)

The men's net pay for working at West Liberty Foods averaged forty-one cents an hour, despite the fact that they often performed at a level equal to able-bodied workers who earned $9 to $12 an hour. When that is taken into account, the amount of underpaid wages is even greater than the $1 million attributed to minimum-wage violations.

Henry's employees were subjected to a hostile work environment that included "verbal and physical abuse because of their mental disabilities." The men were "continually subjected to taunts, name-calling, humiliation and other offensive verbal conduct and mistreatment based upon their disability."

Henry's restricted the men's contact with others and subjected them to "unusual, excessively harsh, and often humiliating disciplinary actions." The company also failed to provide the men with "adequate access to medical care, all while taking advantage" of the men's vulnerable state.

Although Henry's paid just $600 per month to rent the bunkhouse from the city of Atalissa, the company made roughly $10,000 worth of deductions from workers' paychecks each month for housing.

Sylvia Piper of Iowa Protection and Advocacy, an agency that advocates for the disabled, said the EEOC's findings are consistent with those of her own investigators.

Author Rebecca Shafer, President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in ADA (Americans with Disabilities Act), EEOC Discrimination Laws, Employment Law Issues |

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EEOC Doesn’t Turn Blind Eye to ADA Disability Complaint Against Staffing Company

A federal judge entered a consent decree requiring a nationwide staffing company to pay $100,000 to a blind woman against whom the company discriminated because of her blindness according to a suit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

In its lawsuit, the EEOC charged the owner of Balance Staffing hired the woman, a recruiter, to help him launch a Balance Staffing center in Illinois, named Balance Financial Inc. The EEOC said the business owner did not realize his new hire was blind when he hired her. But, when he learned she was, he immediately revoked the job offer, even though she had started recruiting for him.

Discrimination in employment on account of disability violates Title I of the Americans With Disabilities Act (ADA). The EEOC filed suit EEOC v. Balance Staffing and Balance Staffing d/b/a Balance Financial, Inc., No. 09 CV-06004) on September 25, 2009 in U.S. District Court for the Northern District of Illinois in Chicago after first attempting to reach a voluntary settlement out of court through its conciliation process.

The three-year consent decree resolving the suit, approved by U.S. District Judge Ruben Castillo, with the consent of the parties, requires Balance Staffing and Balance Professional Inc. to report any further complaints of disability discrimination or retaliation to the EEOC.

The owner and manager of the company will also undergo annually training on disability discrimination. The decree contains an injunction prohibiting the companies from engaging in further discrimination on the basis of disability and from retaliating against anyone who opposes disability discrimination, files a discrimination charge, or participates in a government investigation, proceeding, or hearing. (workersxzcompxzkit)

Regional Attorney John Hendrickson noted, “The result of this case demonstrates how seriously we at EEOC take disability discrimination. Anyone who is a victim of discriminatory actions, such as those actions allegedly taken by Balance Staffing’s management, should not hesitate to bring the issue to light by notifying the EEOC. We stand ready to act in cases like this.”

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in ADA (Americans with Disabilities Act), EEOC Discrimination Laws, Employment Law Issues |

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WASHINGTON Major Apple Grower Bitten by Sexual Harassment Allegations

One of the largest apple producers in the United States has been placed under a temporary restraining order (TRO) filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The federal agency was motivated by the immediate danger of “substantial and irreparable injury” to class members and potential witnesses in the EEOC’s sexual harassment suit against Cowiche, Wash.-based Evans Fruit Company, filed at the same time as the agency’s TRO request.

U.S. District Court Judge Lonny Suko ordered the company and all its agents to stop all retaliatory activity against those involved and those who may become involved in the lawsuit. Under the terms of the TRO, Evans Fruit supervisors — including Juan Marin, Alberto “Camello” Sanchez, and Simon Ramirez — must avoid further contact with class members and potential witnesses. They must immediately cease any attempts to intimidate or tamper with current or potential witnesses, such as paying to influence testimony. (WCxKitz)

The EEOC filed suit on behalf of three individuals and a class of women, alleging sexual harassment by the ranch manager and crew leaders at the grower’s Sunnyside ranch.

According to the agency’s investigation, these supervisors often singled out women for sexual advances, with work assignments that isolated them from friends and family members. The women were forced to quit, the EEOC charged, in order to get away from the ongoing sexual comments, propositioning and physical groping.

One of the workers who filed charges with the EEOC described how the ranch manager refused to let her work on the same crew as her 15-year-old daughter, whom he then targeted with unwelcome verbal and physical sexual attention. She said, “My daughter was just a child. That man should not have been touching her or whispering in her ear. There weren’t any other jobs in town, but we could not work there any longer. I do not want what happened to my daughter to happen to anyone else.” (WCxKitz)

EEOC Regional Attorney William Tamayo said, “Filing for a temporary restraining order is not a common action for us. But in this case, we saw an urgent need to do all in our power to protect the farm workers who participate in this case. We hope this lawsuit and the power of the court’s restraining order will encourage workers to be able to step forward with information about the discrimination with the knowledge that the law protects them and their jobs.”

“Our investigation revealed sexual harassment at Evans Fruit was so widespread and accepted that it became a condition of employment for these women,” said Luis Lucero, director of the EEOC’s Seattle Field Office. “The EEOC has filed and resolved similar lawsuits in the Pacific Northwest last year. We hope this case will alert employers in this industry to stop predatory sexual behavior and abuses of supervisory power.”

Last June, EEOC filed a lawsuit against Willamette Tree Wholesale Inc. located in Molalla, Ore., alleging that Latina workers there were sexually harassed, threatened, and in one case, repeatedly raped. In October, EEOC sued Eastern Washington winery La Pianta L.C.C., which does business as Frenchman Hills Vineyard, on behalf of a Latina worker targeted for escalating sexual attention by the vineyard manager at its facility in Othello, Wash. (WCxKitz)

In the fall of 2009, EEOC resolved two separate sexual harassment and retaliation suits: Wilcox Farms, which operates dairy and egg production facilities in Oregon and Washington, agreed to pay $260,000 to a female worker at its Aurora, Ore., facility, and Schiemer Farms of Nyassa, Ore., paid $14,500 to two farm worker women who alleged being fired immediately after reporting sexual harassment on their first day of work.

Author Rebecca Shafer, J.D., Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.

FREE WC IQ Test: http://www.workerscompkit.com/intro/
WC Books: http://www.LowerWC.com/workers-comp-books-manuals.php
WC Calculator: http://www.LowerWC.com/calculator.php
TD Calculator: http://www.LowerWC.com/transitional-duty-cost-calculator.php

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.

Posted in EEOC Discrimination Laws, Employment Law Issues |

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Can Medication Side Effects Be a Disability Under ADA

Retaliatory Discharge Borrowed Employees Are Protected As Well

Should Record of Depression Prevent You From Working

Yes, Bullying in Workplace IS Violence in Workplace

New York Comp Board Has New Employer Manuals

Discrimination Actions Lead to $45,000 Settlement at Container Manufacturer

Employment Rate of Disabled Is 50 Percent Lower Than Non-Disabled

Company Housed 65 Disabled Men in Bunkhouse is Subject to Million Dollar Fine

EEOC Doesn’t Turn Blind Eye to ADA Disability Complaint Against Staffing Company

WASHINGTON Major Apple Grower Bitten by Sexual Harassment Allegations

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