The Americans with Disabilities Act extends the ability of workers with disabilities to be employed with reasonable accommodation. Medical examinations and review of prior medical records are frequently necessary for a vocational expert to comment on what jobs can be done by an individual with a disability and what the earning capacity would be. The vast number of ADA examinations are for pre-employment purposes. The use of ADA for examinations of workers in serious comp claims has received little attention.
In serious workers comp claims, precisely the same issues relevant to a pre-employment ADA exam appear about a year after date of accident, a time at which a permanent rate of disability and amount of wage loss in NY claims will be considered. Settlements will also be discussed. (WCxKit)
Using New York as an example (settlement procedures vary widely from state to state), an ADA examination and conference can be an effective RTW strategy and greatly reduce post-injury loss of earnings. In addition, ADA compliance is not subject to oversight and regulation by state workers comp agencies. Nor does an ADA medical exam count as a workers comp IME.
The ADA compliance exam must be done by the employer as part of a good faith effort to return a worker to employment. The worker, however, must indicate an interest in return to work for the employer; the exam cannot be forced.
A typical procedure might be as follows, subject to many modifications under collective bargaining agreements.
1. After a reasonable period, the employer may ask the worker if there is interest in returning to work, on a trial basis and with reasonable accommodations.
2. A face-to-face conference may be scheduled, with spouse present, to discuss the possibilities and the wages which would be paid.
3. A medical exam may be necessary to determine what accommodations might be necessary.
4. A vocational expert should compose a report and comment on wage earning capacity.
5. An effort to place the worker into a suitable job must be made.
In NY, settlement figures for comp PPD claims cluster at 50% disability, resulting in many claims with over $400/wk. rates. With a proper ADA program, many of these can be held to $100/wk., less, or even no wage loss.
A fact known to nearly every Social Security disability attorney is that the spouse is usually highly supportive of RTW, not extended disability. Involving the spouse in RTW discussions will produce far better results. (WCxKit)
The ADA exam and conference are part of the employer/employee relationship, not the workers comp claim, and are therefore outside the control of a comp board.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
medsearch7@optonline.net
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
By Martha J. Cardi J.D.
Think workers comp is hard to manage? Try FMLA, state and other leaves of absence.
These overlapping and ever-changing leave laws are so complicated many employers either grant too much leave in fear of being out of compliance, or refuse leave that legitimately should be granted, exposing the employer to risk of lawsuits.
How employers (and/or their TPAs) manage
FMLA can have a big impact on costs, productivity, employee morale and, perhaps most important, reduce the risk of legal action for claims of noncompliance. Quite simply, it pays to devote the resources to make sure it is done right.
To give you an idea of how complicated managing these leaves can be, consider three hypothetical scenarios and how they should be correctly handled. While reading, keep in mind that, while these scenarios look overblown, in real life they actually can get much more complicated than this.
1. Pregnant Employee With Multiple Births
This scenario illustrates the interaction of FMLA and state leaves for an employee with a complicated pregnancy.
Judy in Massachusetts is employed by a company that is covered by both the FMLA and the Massachusetts Maternity Leave Act (MMLA). She becomes pregnant with multiple fetuses with a due date of October 15 and is put on bed rest by her OB effective April 15. On August 30 she delivers eight babies, all of which survive.
How much job-protected leave does Judy get, and under which statutes?
1. The MMLA covers only the birth or adoption of a child or children, not pre-birth pregnancy-related disabilities. Therefore, the MMLA does not cover any of her pre-birth time off.
2. The FMLA does cover pregnancy-related disabilities, so this provides job protection for Judy for up to 12 weeks during her period of bed rest.
3. After 12 weeks, Judy exhausts her FMLA on July 8 (assuming she has not taken any other FMLA time in the prior 12 months).
1. Judy is out of FMLA and the MMLA has not yet come into effect. She is likely still protected, however, under the Americans with Disabilities Act (as amended by the ADA Amendments Act effective January 2009) and under the Massachusetts equivalent nondiscrimination law.
2. Judy also may be protected by both federal and Massachusetts sex or pregnancy discrimination laws if her employer allows leaves of absence to employees for non-pregnancy-related temporary disabilities.
3. Her employer would be wise to provide an extended leave of absence due to her pregnancy and/or pregnancy disability to cover the period from
FMLA exhaustion until the MMLA provides the employee with parental/bonding leave.
August 15 -
Once Judy has given birth, the MMLA allows eight weeks of job-protected leave per birth or adoption. So, for having eight babies, she is entitled to 64 weeks of leave, eight for each baby.
2. California Family Rights Act and FMLA
This scenario about how FMLA and state laws interact in a domestic partnership with multiple illnesses shows how the timing of multiple leaves can have a huge impact.
Marie and her registered domestic partner Susan live together with Susan’s 10-year-old child, Thomas. Thomas is diagnosed with a serious health condition and needs physical care at home. Both Marie and Susan work for California employers that are covered by both the California Family Rights Act (CFRA) and the FMLA.
Can Marie and Susan take time off to care for Thomas?
1. Both FMLA AND CFRA provide 12 weeks of job-protected leave within one leave year to care for certain family members as defined by the statutes. As Thomas’s mother, Susan is entitled to take up to 12 weeks of job-protected leave under both FMLA and CFRA to care for him. Her leave under each act runs concurrently. After 12 weeks she has exhausted her FMLA and CFRA entitlements for her employer’s defined leave year.
2. After Susan has exhausted her leave rights, Marie takes time off to care for Thomas. Marie also is entitled to 12 weeks off under each leave act. CFRA provides time off to care for a child with a serious health condition under two conditions. (1) If the child is the child of the employee’s domestic partner and/or (2) a child with whom the employee stands “in loco parentis” (in the place of a parent or like a parent, providing care and/ or support).
3. The FMLA does not provide leave to care for the child of a domestic partner, but does provide time off to care for a child with a serious health condition if the employee is in loco parentis to the child. Because Marie, Susan, and Thomas all live together and Marie helps provide financial support and parenting care for Thomas, she qualifies for this leave and in caring for Thomas, exhausts both her FMLA and CFRA rights for the leave year.
Note that the result would be the same if Marie and Susan work for the same employer. Neither FMLA nor CFRA require parents employed by the same employer to share time off to care for a child with a serious health condition.
To understand the complexity of these laws, suppose that before Thomas’s illness, Susan had experienced her own serious health condition. Marie stayed home from work for 12 weeks to provide Susan with physical care during her injury and recovery. This leave is covered by CFRA, which provides leave rights to care for a registered domestic partner with a serious health condition. Susan has exhausted her CFRA time for the leave year, but, her time off does not count toward her FMLA leave rights, as the FMLA does not provide job-protected leave to care for a domestic partner with a serious health condition.
Then when Thomas becomes ill with a serious health condition and needs physical care at home. Marie can take another 12 weeks of leave during the leave year to care for Thomas because she stands in loco parentis to him, and her FMLA rights were not exhausted during her time off to care for Susan.
Note that if Susan’s and Thomas’s serious health conditions occurred in reverse order, Susan’s CFRA and FMLA rights both would have been exhausted in caring for Thomas first, and she would not have had any job-protected time left under CFRA to care for Susan.
3. Caring for an Injured Military Service Member
This scenario illustrates how caring for someone injured in the line of duty differs and interacts with caring for an injured civilian.
Henry is an employee of a company covered by FMLA. When his son, Josh, a serviceman in the US Navy, is injured on an aircraft carrier during an engagement and is sent home, can Henry take time off to care for Josh?
An employee may take up to 26 weeks of job-protected leave in one 12-month period in order to care for a son, daughter, spouse, or parent who has been injured in the line of duty on active duty, or if the employee is designated by the injured service member as his or her “next of kin” per the regulations.
The 12-month period is measured forward from the first date of leave for this reason, regardless of the method used by the employer to calculate an employee’s leave entitlement for other FMLA reasons (e.g., rolling back, calendar year, or other fixed year).
The 26 weeks includes the employee’s 12 weeks of leave for other FMLA-qualifying reasons, but the military caregiver leave must be applied first, so that if the employee does not use the full 26 weeks for caregiver leave, he or she still has the remainder of the 26 weeks, up to 12 weeks maximum, to use for other FMLA reasons.
Assume Henry’s employer uses the 12-month rolling backward method of calculating employee FMLA leave entitlements.
1. Henry has taken no previous FMLA leave since he became eligible, and may take up to 26 weeks to care for Josh.
2. Josh recovers and Henry is no longer needed to care for him after 8 weeks. Henry returns to work and under the regulations forfeits the remaining 18 weeks of military caregiver leave as a result.
3. A month after returning to work Henry requests FMLA time off to care for his wife, who has a serious health condition. His employer is required to apply the military caregiver leave first, up to the 26 weeks. Because Henry used less than 14 weeks of the caregiver leave entitlement, he still has up to 12 weeks of FMLA entitlement for other reasons.
4. Suppose, however, that five months before Josh’s military injury, Henry had taken leave because he adopted a child and took 12 weeks of FMLA leave to bond with the adopted child. When Josh is injured, Michael is still entitled to 26 weeks of leave to care for him, because the 12-month period for this leave reason is always measured forward from the first date of the leave. If his care is needed that long, he can take up to the full 26 weeks despite having taken 12 weeks within the past year, measured rolling backward.
5. Fortunately, Josh recovers within eight weeks, no longer needs Henry’s care, and Henry returns to work. Henry then forfeits the remainder of the 26 weeks of military caregiver leave.
6. A month after returning to work Henry requests FMLA time off to care for his wife, who has a serious health condition. Although Henry has only taken a total of 20 weeks, he no longer has any FMLA time available to use for his wife’s care. Looking back 12 months in accordance with his employer’s rolling back method, Henry has already taken 12 weeks of leave for reasons not related to the military caregiver leave (the adoption and bonding time). Thus, he has no regular FMLA time left to care for his wife.
What Should You Be Doing to Better Manage Leaves?
The takeaway from these examples is that leave laws form a complex web that continually has to be untangled for each case. In addition, these laws are constantly being amended and updated as challenges are decided on in court. (WCxKit)
Every employer should:
1. Make sure supervisors are aware that leave laws are complex and that they should not try to handle leave requests without help from their HR, benefits, or legal department.
2. Make sure supervisors are aware their attitude is important, and that if they respond negatively to requests for leave, it could be construed as FMLA interference and expose the employer to potential legal action.
3. Understand that employers do not have to grant every leave request just to avoid the risk of noncompliance. With proper understanding of leave laws, there are many ways that employers can reduce the burden of unnecessary leaves while still giving employees the leaves to which they are entitled.
Up-to-Date Leave Law Information is the Key.
No human being can be expected to hold this kind of complexity in his or her head, and researching leaves on various government databases is both time consuming and increases the risk of missing any important change or guidance on a gray area. Be sure you have the most current information on FMLA, state and other leave laws available in a format that is easy to search, complete and always up-to-date. If you encounter any “gray areas” in leave laws, be sure to seek expert advice to minimize the risk of legal challenges.
Martha J. Cardi J.D. is Chief Compliance Officer for Reed Group and Chief Editor of Reed Group’s Leave of Absence Advisor, a web-based resource for administering FMLA, state and other leave laws. More info at www.reedgroup.com. Contact at services@reedgroup.com.
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
U.S. Transportation Secretary Ray LaHood recently announced that individuals with disabilities will have greater access to inter city, commuter and high-speed train travel as a result of a new rule requiring new station platform construction or significant renovation to enable those with disabilities to get on and off any car on a train, according to a report from the agency.
“This will help give passengers with disabilities better access to rail travel across the country,” said LaHood. “By putting this protection in place, passengers with disabilities will be able to get on and off any accessible car that is available to passengers at a new or altered station platform.” (WCxKit)
The U.S. Department of Transportation (DOT) is amending its Americans with Disabilities Act (ADA) regulations to require inter city, commuter and high-speed passenger railroads to ensure, at new and significantly renovated station platforms, that passengers with disabilities can get on and off any accessible car of the train. Passenger railroads must provide level-entry boarding at new or altered stations in which no track passing through the station and adjacent to platforms is shared with existing freight rail operations.
For new or altered stations in which track shared with existing freight rail operations precludes compliance, passenger railroads will be able to choose among a variety of means to meet a performance standard to ensure that passengers with disabilities can access each accessible train car that other passengers can board at the station. These options include providing car-borne lifts, station-based lifts, or mini-high platforms.
The Department will review a railroad’s proposed method to ensure that it provides reliable and safe services to individuals with disabilities in an integrated manner.
The rule also requires that transit providers carry a wheelchair and occupant if the lift and vehicle can physically accommodate them, unless doing so is inconsistent with legitimate safety requirements. (WCxKit)
In addition, it codifies the existing DOT mechanism for issuing ADA guidance and makes minor technical changes to the Department’s ADA rules.
Author Robert Elliott, executive vice president, Amaxx Risk 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. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
The National Federation of the Blind (NFB), the oldest and largest nationwide organization of blind people, held more than 20 informational protests across the United States to raise awareness about the practice of paying below the federal minimum wage to Americans with disabilities.
The Rehabilitation Act is supposed to provide services to disabled Americans so that they can obtain competitive employment, but Title V, Section 511 of the proposed Rehabilitation Act language reinforces Section 14(c) of the 1938 Fair Labor Standards Act (FLSA), which allows certain entities holding special wage certificates to pay workers with disabilities less than the federal minimum wage.
According to the NFB, the protests were held July 26, the 21st anniversary of the Americans with Disabilities Act, at the primary district office locations of United States senators serving on the Senate Committee on Health, Education, Labor and Pensions (the HELP Committee). The HELP Committee is currently considering legislation—the Workforce Investment Act—which would reauthorize the payment of subminimum wages to disabled workers.(WCxKit)
Dr. Marc Maurer, president of the National Federation of the Blind said, “Unequal pay for equal work on the basis of disability is unfair, discriminatory, and immoral. We urge the senators who serve on the HELP Committee to eliminate the indefensible practice of paying disabled workers less than the federal minimum wage.”
Twenty-one informational protests were held in 16 states, including Alaska, Arizona, Colorado, Georgia, Iowa, Illinois, Kansas, Kentucky, Maryland, Minnesota, North Carolina, Oregon, Pennsylvania, Tennessee, Washington, and Wyoming.
Unfortunately, the reauthorization vote on the Workforce Investment Act (WIA) scheduled for August 3, 2011 did not take place and as of August 11 is still stalled in committee.(WCxKit)
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. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
If you were the producer of a Broadway show, would your hire a 300-pound ballerina? The idea seems absurd, but most employers shy away from hiring and retaining obese employees. (Obesity discrimination is illegal in Michigan, the District of Columbia, San Francisco, and Santa Cruz, CA). Obesity is not a disability that falls under the Americans with Disabilities Act (ADA) unless is has a proven physiological cause. We do not advocate obesity discrimination, but feel you should be aware that the more obese people you hire and employ, the higher the cost of your workers compensation insurance will be. This is also true in life insurance, one must fall into the appropriate body weight range to qualify for reasonably priced life insurance. Sad but true. And there may be ample justification for such increase in rates.
There are many ways to define obesity. To most people, a “fat person” is someone who weights 50 or 100 pounds more than they do. Medically speaking, a person with a body mass index – BMI (a weight-to-height ratio, calculated by dividing one's weight in kilograms by the square of one's height in meters) of 18.5 to 24.9 is considered to be of normal weight, 25 to 29.9 is considered to be overweight, with 30 and above is considered obese. The doctor once told my husband he was obese which was very surprising because I don't view him as obese — a beer tummy maybe, but certainly not obese to my way of thinking.
In a often-cited Duke University study based on 100 full-time employees with a body mass index of 40, the impact of obesity on the cost of workers compensation is tremendous. Statistics show the impact on workers compensation cost of obese employees who are injured on the job including:
1. Claims: Obese employees have twice as many workers compensation claims (11.65 claims vs. 5.8 claims for non-obese employees.)
2. Lost days from work: Obese employees lose 13 times more work days for their injury (183.63 days vs 14.19 days).
3. Medical cost: Obese employees medical cost is seven times higher ($51,901 vs. $7,503).
4. Indemnity Cost: Obese employees indemnity cost is 11 times higher ($59,178 vs. $5,396).
Another study by researchers at John Hopkins found similar results with a direct correlation between the number of injuries and the amount of obesity, with the odds of injury at work increasing with the waistline. The more obese the employee, the greater the odds the employee would be hurt on the job.
With nearly two-thirds of all American adults either overweight or obese, obesity is now being divided into subgroups with their own definitions including:
1. Overweight – 1 to 29 pounds above normal
2. Obese – 30 to 59 pounds overweight
3. Severely obese – 60 to 99 pounds overweight
4. Morbidly obese – at least 100 pounds overweight
5. Super obese – 200 or more pounds overweight
Per the Center for Disease Control and Prevention, in 2007 about one-fourth (26 percent) of all employees were in the obese or a higher category. It is projected that by the year 2020, 40 percent of men and 43 percent of women will be classified as obese or higher. When you include the overweight people with the obese, by 2020 it is predicted that 70 percent of all employees will be overweight, with the number of overweight people continuing to grow (no pun intended).
What does this mean for workers compensation? Well, any one who has been involved with or who has handled their share of workers compensation claims know the injuries most common to obese employees involve their back, lower extremities (knees and ankles primarily), wrist (carpal tunnel claims and women with obesity “go hand-in-hand”) and hands. Obese employees generally hurt their back when trying to lift heavy weights or lift any weight improperly, and the obese employees hurt their backs, knees and ankles more severely when they slip and fall. Due to their obesity, obese employees have a significantly higher percentage of musculoskeletal injuries than non-obese employees.
The additional strain placed on the employee's musculoskeletal system by the additional weight is only one factor that delays the employee's recovery from an injury. Obese employee's often have other
comorbidity problems besides their weight that delays their recovery from injury. Other medical issues among obese employee's interfering with their recovery include hypertension, heart disease and diabetes. open-ended According to the National Counsel on Compensation Insurance, these comorbidity issues can increase the cost of a work comp claim by an astounding 30 times.
As an employer, there are some steps you can take to reduce the cost of workers compensation related to obesity. The following are some approaches employers have taken to deal with this issue:
1. Health insurance premium discounts for employees with a BMI of 18 to 25.
2. A weight-reduction program offered through your human resources department.
3. Encourage physical activity at work whether it is taking the steps instead of the elevator or parking at the far end of the parking lot.
4. Use weight loss seminars from Weight Watchers or Jenny Craig.
5. On-site or off site fitness centers with free membership or reduced price membership.
6. A fitness program that includes healthy eating, health improvement seminars, exercise classes, and company sponsored athletic teams.
7. Use of the company intranet to post weight loss guides, cooking light suggestions, and any topic on good health.
8. A recognition program for employees who meet a weight-loss goal.
Encouraging your employees to be healthy pays off in lower workers compensation cost and provides for a healthier, happier work force. Insurance companies – yes – the very same ones selling life insurance and workers compensation need to get in line to promote
wellness, health and fitness just as much as any other employer. My daughter worked for an insurance company and the supervisor had a candy dish on her desks, ice-cream sundae Wednesday, birthday cakes often and pot luck Friday once a month. Ice Cream Sundae Wednesday? Ya think everyone was bringing in Frozen Yogurt?
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact:RShafer@ReduceYourWorkersComp.com .
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
The EEOCs final regulations to implement the
ADA Amendments Act (ADAAA) were published in the Federal Register recently (3/25/11) and go into affect May 25, 2011. The final regulations reflect significant changes in the interpretation of the ADAs definition of “disability” but not in the actual definition of the term "disability."
The ADAs definition of the term “disability” has not changed. The ADA believes a disability to be a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the law makes major changes in how those terms are interpreted:
1. An impairment does not need to prevent or significantly restrict performance of a major life activity to be considered a disability.
2. What is considered an impairment must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA
3. “Mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability (with the exception of ordinary eyeglasses or contact lenses.)
4. The term “major life activities” includes “major bodily functions.”
5. Impairments that are episodic, such as epilepsy, or in remission, such as cancer, are disabilities if they would be substantially limiting when active.
The final regulations will go into effect 60 days from March 25, so on May 25.
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. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com.
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
A new set of federal guidelines regarding service animals for the disabled be they at work or outside the office was unveiled recently by the U.S. Department of Justice for the
Americans with Disabilities Act (ADA). The new recommendations limit service animals to dogs and housebroken miniature horses.
According to the Associated Press, the new guidelines are not binding to states, municipalities and other agencies, which are free to enact the policy or to comprise their own. Individuals, however, who rely on other types of animals to assist them in managing physical disabilities and conditions, are reportedly expressing concerns. (WCxKit)
The DOJ chose to revamp its service animal regulation due to comments from businesses, state and local governments and individuals with disabilities, including several who use service animals, according to a department spokesman. People were putting vests on pocket pets and calling them service animals, the spokesperson noted. "Changes were needed."
As it turns out, federal agencies are not in sync when it comes to animals.
The U.S. Department of Transportation and the U.S. Department of Housing and Urban Development permit service animals of all kinds as well as emotional support animals, although some airlines may require advance notice, a doctor's note and some additional documentation. (WCxKit)
The Department of Justice posted its proposed rules in 2008 and the adopted version was not much different, so people have had time to react, according to a policy analyst for the Disability Rights Education and Defence Fund (DREDF).
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. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com or 860-553-6604.
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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
FAPS Inc., an automotive port processor, is charged by the EEOC in a recent discrimination lawsuit with engaging in an ongoing pattern or practice of race discrimination against African-Americans in recruitment and hiring. The suit also charges FAPS made improper pre-employment disability-related inquiries of applicants. Both these alleged practices violate federal law.
According to the EEOC’s suit, EEOC v. FAPS Inc., filed in the U.S. District Court for
New Jersey, FAPS has had, and continues to have, a statistically significant smaller percentage of African-American employees in entry-level positions than would be expected given the relevant labor market in the area where FAPS is located. FAPS maintains more than 250 acres and 575,000 square feet of under-roof processing at its terminal complex.
(WCxKitz)
The EEOC contends FAPS, instead of advertising job openings, has almost exclusively utilized word-of-mouth recruiting for hiring of employees for entry-level positions, resulting in a statistically significantly smaller percentage of African-American applicants for those jobs.
In addition, FAPS refused to hire qualified African-American applicants who did apply for entry-level positions because of their race, instead hiring less qualified or similarly qualified non-African-Americans applicants for such positions. (WCxKit) FAPS Inc. falsely told African-Americans applicants that no such positions were available when, in fact, the defendant was hiring non-African-Americans applicants for these positions. In addition, FAPS Inc. unlawfully included disability-related questions on job applications, the suit charges.
The agency seeks injunctive relief to end the discriminatory practices, plus back pay and compensatory and punitive damages to compensate African-American applicants who were not hired or who were deterred from applying for jobs due to their race. (WCxKitz)
“The ADA prohibits an employer from asking disability-related questions of job applicants before a job offer is made because job applicants have the right to be judged on their ability to do the work, and not on prejudice about their mental or physical disabilities,” said Rosemary DiSavino, the EEOC trial attorney who will be litigating this case. “This lawsuit should teach employers to review their application forms and remove illegal questions.”
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.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
After investigation of a complaint filed by Brad Avakian, commissioner of the Oregon Bureau of Labor and Industries (BOLI), the state Civil Rights Division filed formal charges against the Department of Public Safety Standards and Training (DPSST) and its former Director, John Minnis. The Bureau said its investigation determined there was substantial evidence both DPSST and Minnis violated state sex discrimination and disability discrimination laws.
The charges filed with BOLI’s Hearings Unit allege Minnis used his position of authority to subject the victim to sexual advances, provided unusually large pay increases to the victim, and used his knowledge of her treatment for addiction to alcohol and her vulnerability to alcohol-induced black-outs to pursue and prey on her. (WCxKit)
Alcoholism is a disability recognized by the Americans with Disabilities Act as Amended, and similar state law. The damages sought reflect the extreme stress inflicted on an employee by the highest authority within her agency.
The formal charges, ask for damages in an amount to be shown at hearing, including at least $2 million for emotional, mental and physical suffering. A hearing is set for July 27. A final order from BOLI’s Hearings Unit, similar to an order issued by a circuit court, may only be appealed directly to the Oregon Court of Appeals.
“BOLI’s investigation has revealed information painting an alarming picture of the harassment ‘Jane Doe’ endured at DPSST,” Avakian said. “State agencies and their management must be held to the highest standards, and all Oregonians need to have confidence in their rights to a safe, harassment-free workplace will be protected.” (WCxKitz)
“Cases like this are the reason BOLI’s authority to defend civil rights covers both private and public employers,” Avakian explained. “Pursuing a full remedy in this case is critical not only to ensuring fairness and justice for all Oregon workers, but also to maintaining the integrity of our state government and showing nobody, no matter what their position, is above the law.”
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Two new discrimination cases charging employers in Georgia, Maryland and Michigan with violations of the recently amended Americans With Disabilities Act (ADA) were filed by the EEOC).
The cases — all filed under the broader and simplified definition of disability set forth in the ADA Amendments Act (ADAAA) — allege discrimination against qualified individuals with diabetes, cancer and severe arthritis.
“The contributions of people with disabilities to the workplace ought to be valued, not rejected based on myths, fears and stereotypes,” said EEOC Chair Jacqueline Berrien. “The ADAAA made clear what the EEOC had always asserted: people with a range of disabilities are protected from unlawful discrimination. We hope that these cases send a clear message that the Commission will vigorously enforce the ADA.” (WCxKit)
In a case filed in Baltimore, the agency alleges surveying company Fisher, Collins & Carter fired two employees because they had diabetes and hypertension.
According to the suit (EEOC v. Fisher, Collins & Carter, Case No. 10-cv-2453, filed in the U.S. District Court for the District of Maryland), the company asked Robert Gray and Wayne Seifert and other employees to complete a questionnaire regarding their health conditions and medications. Gray had worked for the company for 15 years starting as a rodman, and had been promoted to the position of party chief by the time of his termination. Seifert had been employed since 2000 as a rodman.
The suit asserts that, despite their many years of successful performance, the company unlawfully selected Gray and Seifert for a reduction-in-force on Jan. 21, 2009, on the basis of their disabilities, while retaining less qualified, non-disabled employees.
In the other case announced, filed in Lansing, Mich., the agency charged that IPC Print Services fired one of its employees rather than allowing him to work part time while being treated for cancer.
According to the agency's pre-suit investigation, Derek Nelson, who had been employed by IPC as a machinist for over 10 years, went on medical leave in 2008 in order to undergo chemotherapy.
The EEOC's suit (EEOC v. IPC Print Services, Inc., Case No. 10-cv-886 in U.S. District Court for the Western District of Michigan), alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC's obligation to reasonably accommodate Nelson's disability. (WCxKit)
“These cases, among the first filed by the EEOC under the ADA Amendments Act, illustrate the continuing need for rigorous enforcement of the law in this area, as well as further education about the ADA’s requirements,” said General Counsel David Lopez. “Congress has made the scope of the ADA clear and broad: Individuals with disabilities — including serious medical conditions such as cancer, diabetes, and severe arthritis — must be evaluated according to their qualifications, and not their disabilities. Where a reasonable accommodation will enable a person with a disability to perform the essential functions of her job, an employer must provide it. Through cases like those announced today, the EEOC’s litigation program will focus on deterring willful violations of this important civil rights law.”
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
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.
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ADA (Americans with Disabilities Act), NY Workers Comp Issues, Return to Work and Transitional Duty |
