EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

Vermont Proposes Radical Approach to Workers Compensation and other News

 
Vermont H 762 — a radical approach to workers compensation in Vermont
Noted WC writer Peter Rousmaniere writes that Vermont is set to pass a radical approach to dealing with the independent contractor problem in workers comp. “The problem is this: many businesses in the past, across the country, have chosen to define their workers as independent contractors, thereby saving themselves serious money in workers comp insurance, unemployment compensation insurance, and other benefits mandatory or voluntary, and leaving their workers exposed to the elements .(There are also other state labor protections that come to play),” he says.[WCx]
 
 
“The house bill 762 has a provision expressly designed to let workers define themselves as independent contractors!” he notes. “The intent comes out in the hearings: to let employers such as contractors hire them without having to worry about the risk of the engagement being seen as employment — even if the engagement looks, talks and walks like employment.”
 
 
Volume Three of the LexisNexis eNewsletter Available
Follow this link to see a summary of state and world news in the WC industry. This edition includes information on North Carolina’s reforms, Retaliatory Discharge and an experts year-in-review among many other “goodies.” Check it out!
 
 
Broadspire Holds First Annual Rx Summit
Danielle Lisenbey, chief operating officer for the Medical Management Services of Broadspire announced its first annual Rx Summit here in Sunrise March 22. As a leader in the industry, Broadspire first Pharmacy Issues Summit should prove to be helpful. They write, “The purpose of the meeting is to bring thought leaders from various organizations together to discuss relevant topics and issues surrounding pharmacy benefits in the workers compensation setting. The intent is not to share the specifics of what various companies are doing, but rather to focus on the global industry issues themselves and what may be the possible trends and developments for the future. One key objective of the program will be to help to identify and define common threads that run through all components of the industry – across claimants, payors, employers and carriers. Defining some of these commonalities will help the consumer to maneuver through the market. This will be an opportunity to brainstorm and share ideas amongst industry peers that can help to influence positive impacts for all.”
 
 
Email Mjaynes@choosebroadspire.com by March 15, 2012 for more information. The Summit is by invitation only.
 
 
TDI-DWC Launches Redesign of Homepage on the TDI Website
Texas Department of Insurance, Division of Workers' Compensation changed its site this week. The redesign of its homepage on the TDI website at http://www.tdi.texas.gov/wc/indexwc.html.
 
 
“In an effort to make online resources for workers’ compensation system participants more user friendly, the TDI-DWC homepage redesign features a new tab style menu with three sections to assist system participants in accessing workers’ compensation information. Topics A-Z features an alphabetical listing of workers’ compensation-related subject matter that directly links to website content. Online Services features direct links to services, including: safety violation reporting, employer coverage verification and attorney fee processing.
Resources features direct links to resources, including the Texas Labor Code, TDI-DWC rules, calendar of events and training and TDI-DWC forms,” they write.
 
 
There are many other helpful changes. Go take a look!
 
 
WCRI Releases Study of WC Laws
The Workers Compensation Research Institute (WCRI) and the International Association of Accident Boards and Commissions (IAIABC) just released a joint study, Workers’ Compensation Laws as of January 2012.
 
 
This tool allows users to compare WC system laws across U.S. and Canada. More information is available here.
 
 
WCRI calls it, “An essential tool for researching and understanding the distinctions among workers’ compensation laws in all U.S. states and certain Canadian provinces.”
 
 
LRP Publications Announces New EEO/Federal Manager Book
To prevent age discrimination and sexual harassment complaints, managers need guidance. EEO complaints can be avoided.
 
 
This new guide is updated with changes in the ADA and the Genetic Information Nondiscrimination Act. Follow this link to learn more: EEO and Federal Managers: Following the Principles, Avoiding Complaints. The book could be handed out to all managers to get everyone up to speed on their EEO responsibilities.
 
 
Chapters include:
EEO Responsibilities
Sex Discrimination and Sexual Harassment
Race and Color Discrimination
National Origin Discrimination
Age Discrimination
Religious Discrimination and Accommodation
Disability Discrimination and Accommodation
Toward a Diverse Federal Workplace
 
 
Early MRIs Impact Outcomes Workshop March 14
Liberty Mutual Insurance knows that while MRIs are commonly used in workers compensation claims, their findings may or may not always be related to workplace injury. To this end, they are hosting a workshop March 14. More information is available here.
 
 
Among the topics to be discussed will be the results from a Liberty Mutual Research Institute for Safety study on the early use of MRIs as they relate to claims outcomes, case studies from the field and best practices around the use of MRIs.[WCx]
 
 
The company recommends people with claims, loss control, risk consulting, or managed care responsibilities should attend as well as risk managers interested in the latest issues and research associated with MRIs and claims outcomes.

 

 

 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com

VIEW SAMPLES PAGES

MODIFIED DUTY CALCULATOR:  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.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

National Insurer Sued under ADA For Failure to Hire Methadone User

The U.S. Equal Employment Opportunity Commission (EEOC) has sued a national insurer claiming the firm violated federal law by refusing to hire a North Carolina man after he disclosed he was participating in a methadone treatment program for drug addiction.
 

The suit was
filed in U.S. District Court in Raleigh against United Insurance Co. of America, according to EEOC attorney Lynette Barnes. (WCxKit)
 
 
The complaint argues the firm violated federal disability discrimination law by refusing to hire Craig Burns, 30, who applied for a job in the firm’s Raleigh office in December of 2009. The firm made a conditional offer of employment to Burns the following month, depending upon his passing a drug test.
 
 
The test showed the presence of methadone in his system, so Burns submitted a letter to the firm from his treatment provider saying he was participating in a supervised methadone treatment program and taking legally prescribed medication as part of the treatment, the complaint said. Upon receiving this information, United Insurance notified Barnes he was not eligible to be hired and withdrew the employment offer.
 
 
According to Barnes, the action violates the Americans with Disabilities Act, which protects employees and applicants from discrimination based on their disabilities. A recovering drug addict is covered under the act. (WCxKit)
 
 
The suit seeks back pay, compensation for financial loss, along with punitive damages.
 
 
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.


WORKERS COMP WORKBOOK:
www.wcmanual.com
WORK COMP CALCULATOR: www.LowerWC.com/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.
 
©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.

Ohio Fire Chief Loses Discrimination Suit in Federal Court

The Columbus (Ohio) Fire Division battalion chief who was the first female in that position has come up short in the discrimination lawsuit she filed against the city in federal court.
 
 
According to The Columbus Dispatch, U.S. District Judge Michael Watson dismissed Yolanda Arnold's claims that she had been harassed due to the fact she is black and that she had suffered retaliation because of her discrimination claims. Arnold also claimed she was humiliated and embarrassed. (WCxKit)
 
 
Watson ruled recently that Arnold did not offer specific proof of her allegations in three years of court proceedings that included a number of depositions of witnesses and presentations of exhibits like emails, newspaper stories and other documents.
 
 
According to Watson, a large amount of the evidence was hearsay, which was not admissible direct evidence of discrimination.
 
 
Arnold, 55, who is still a Columbus fire battalion chief, said recently that she is appealing the judges decision to dismiss her suit.
 
 
The lawsuit originated from allegations by city building inspectors in 2004 that fire inspectors under Arnolds command were missing inspections and collecting overtime pay.
 
 
Separate investigations by the Columbus police and fire divisions detected no wrongdoing. A third investigation, by a private attorney, reported management problems in the Fire Prevention Bureau, which Arnold oversaw, but it also found that claims of racial discrimination in the bureau were unfounded.
 
 
At the time of the third investigation, Fire Chief Ned Pettus accused Arnold of lying to investigators and suspended her for a week. She also was removed from the Fire Prevention Bureau.
 
 
Arnold filed the lawsuit in January 2008. Watsons ruling was in response to a request from the city for a summary judgment against Arnold.
 
 
Ten other Columbus firefighters who were employed as fire inspectors filed three similar discrimination lawsuits against the city in federal court. (WCxKit)
 
 
Watson dismissed a pair of those suits on March 31, the day he also threw out Arnolds. A third is pending.
 
  
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

Online College To Pay $260,000 To Settle EEOC Lawsuit Charging Sexual Harassment

Arizona-based High-Tech Institute Inc., doing business as Anthem College Online, will pay $260,000 as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.
 
 
In its suit in U.S. District Court for the District of Arizona (Civil Action No.CV-09-2041-ROS), the EEOC charged that Anthem College subjected female employees to repeated sexual harassment by supervisors. (WCxKit)
 
 
According to the EEOC, six female admissions representatives working at the Phoenix, Ariz., location were frequently sexually harassed by three supervisors.  EEOC allegations included that the supervisors engaged in unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the their homes in the early morning hours. Some of this abusive behavior was witnessed by other Anthem College employees, the EEOC said.
 
 
The EEOC maintained that Anthem College knew or should have known about and tolerated this sexually hostile work environment caused by its supervisors. The agency said the company’s former human resource manager wrote that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management and that there was blatant disrespect to employees and rampant poor management.
 
 
According to the EEOC, the company unreasonably delayed removing a class member from under the supervision of an alleged harasser who, the company’s own former human resources manager testified, was a “psychopath.” The EEOC argued that despite Anthem College’s knowledge about the harassment, the company failed to take reasonable steps to investigate and remedy the harassment.
 
 
“Employees who have an official or strong duty to communicate to management are considered part of management,” said EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District Office, which originated the legal action. “Here, there was a breakdown in reporting by persons, whose job descriptions required them to report any issues affecting the normal operation of the admissions department, including sexual harassment. They failed to do so, with serious consequences.”
 
 
In addition to the settlement requiring Anthem College to pay $260,000 to the former employees, Anthem College also must investigate any further complaints of sexual harassment, provide training for managers and supervisors on conducting sexual harassment investigations and post a notice that harassment of Anthem College employees will not be tolerated. (WCxKit)
 
 
EEOC Phoenix District Director Rayford Irvin added, “We insist that companies fulfill their obligation to protect employees from sexual harassment and provide the necessary training to ensure this protection."
 
 
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.

Wal-Mart Opens Up Checkbook to Compensate Group of Hispanic Employees

Wal-Mart has agreed to pay $440,000 to a group of Hispanic employees in Fresno who say they were subjected to ethnic slurs and derogatory remarks by a co-worker.
 
 
The settlement was announced recently by the Equal Employment Opportunity Commission.
 
 
The EEOC sued Wal-Mart and its affiliate Sam's Club in 2009, alleging the workers were being harassed and that Wal-Mart failed to halt the mistreatment in a timely manner a charge Walmart has denied. (WCxKit)
 
 
At least nine employees of Mexican descent and one, who is married to a Mexican, claim they endured ethnic slurs on a daily basis by a co-worker, who was also Hispanic. The workers, who provided food samples to customers, complained in April 2006, but no immediate action was taken, EEOC officials report.
 
 
Instead, the harassment intensified, according to Christine Park-Gonzalez, an EEOC program analyst in Los Angeles.
 
 
It was not  until the workers filed a complaint with EEOC in October that Sam's Club fired the harasser in December 2006.
 
 
According to Wal-Mart spokesman Greg Rossiter, the company fired the worker once the full extent of the allegations was brought to the company's attention.
 
 
As part of the settlement, Wal-Mart also agreed to make changes in how it deals with these issues at its Fresno and Bakersfield Sam's Club stores. (WCxKit)
 
 
The company committed to a three-year agreement to provide training to employees regarding anti-discrimination laws; teach managers how to investigate and report harassment complaints; and create a tracking system for complaints.
 
 
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

ADAAA Increasing the Interpretation of Disability Goes Into Effect

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

Minnesota Must Pay 467K to Settle Age Discrimination Claims by Workers

The Minnesota Department of Human Services has been ordered to pay $467,000 to resolve age-discrimination claims filed on behalf of 29 individuals who were turned down for employer contributions for retiree health and dental insurance.
 
 
The Star-Tribune reports the consent decree entered by U.S. District Judge David Doty also mandates the department to pay future premium costs for anyone still entitled to receive them. (WCxKit)
 
 
The U.S. Equal Employment Opportunity Commission (EEOC) had sued the department over the plan and contended that an employee retiring at 55 got employer contributions for health and dental insurance until 65, but an employee retiring after 55 received no such contributions.
 
 
Ten months ago, a similar order was issued against the Minnesota Department of Corrections. In that case, the Minnesota Department of Corrections was told it must pay $724,000 to 35 retirees. (WCxKit)
 
 
"The EEOC litigated and won on the issue of the illegality of this incentive plan," the EEOCs regional attorney in Chicago, John Hendrickson, said recently in announcing the order. "We will continue to be on the lookout for similar plans, which essentially end up punishing people who want to work after a certain age."
 
 
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.

Supreme Court Rules Employers Liable for Discriminatory Firing

Employers can be held liable for discriminatory conduct even if the individual responsible for the decision was not discriminatory but relied to a degree on those who were, the U.S. Supreme Court ruled recently, according to www.BusinessInsurance.com
 
 
The courts unanimous ruling in Vincent E. Staub vs. Proctor Hospital backs what is known as the “cats paw” theory of liability. (WCxKit)
 
 
According to the opinion, Mr. Staub, an angiography technician at Proctor Hospital in Peoria, Ill., was part of the U.S. Army Reserve, which mandated he attend drills one weekend a month and train on a full-time basis two to three weeks yearly.
 
 
Business Insurance reported a pair of supervisors was allegedly hostile to Staubs military obligations, and one allegedly made a false complaint to the hospitals VP of human resources, who partially relied on that information to fire Staub in 2004.
 
 
Staub sued the hospital through the Uniformed Services Employment and Re-Employment Rights Act of 1994, alleging his firing was motivated by hostile intent toward his military obligations. A jury deemed that military status was a motivating factor in Staubs discharge and awarded him $57,640 in damages.
 
 
In a turn of events, the 7th U.S. Circuit Court of Appeals in Chicago threw out the case, claiming that a cats paw case “could not succeed unless the no decision-maker exercised such ‘singular influence' over the decision-maker that the decision to terminate was the product of ‘blind reliance,' which was not the case involving this matter.
 
 
Because the undisputed evidence established that (the HR VP) was not wholly depending on the advice of (the supervisor), the court held that Proctor was entitled to judgment,” the 7th Circuit ruled.
 
 
However, the Supreme Court overturned the appeals court. Proctor “contends that the employer is not liable unless the de facto decision-maker…is motivated by discriminatory animus,” the high court stated.
 
 
If a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA,” the Supreme Court ruled.
 
 
The court ruled 8-0 in favor of overturning the 7th Circuit opinion, with Justices Samuel Alito Jr. and Clarence Thomas backing a concurring opinion, and Justice Elena Kagan not taking part in the decision. (WCxKit)
 
 
The high court remanded the case to the 7th Circuit with instructions to determine whether to reinstate the jury verdict or to seek another trial.
 
 
 
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

Anonymous MSHA Complaint Leads to Negotiated Settlement

The U.S. Department of Labors Mine Safety and Health Administration has negotiated a settlement agreement with Comunidad Agricola Bianchi Inc. of San Juan, Puerto Rico, in a discrimination case involving a miner employed by the companys operation in Rincon, Puerto Rico.
 
 
Jose A. Chaparro was fired from his job shortly after cooperating in an MSHA hazard complaint investigation at the mine.(WCxKit)
 
 
In August 2009, MSHA received an anonymous hazard complaint raising concerns about safety issues at the mine, including details about an unreported June 2009 accident at the mine involving Chaparro. As a result, MSHA launched a hazard complaint investigation. The same day that MSHA spoke with Chaparro about his accident, the mine superintendent fired him.
 
 
In a complaint filed with the Mine Safety and Health Review Commission, MSHA sought a finding that Chaparro was unlawfully discriminated against and discharged in violation of Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, which states that miners, their representatives and applicants for employment are protected from retaliation for engaging in safety and/or health-related activities, such as identifying hazards, asking for MSHA inspections or refusing to engage in an unsafe act.
 
 
The complaint also sought Chaparros reinstatement to his position or a comparable one, $6,000 in back pay, all employment benefits, all medical and hospital benefits, and any and all other damages suffered and incurred by Chaparro as a result of the discriminatory discharge, as well as a $15,000 civil money penalty.
 
 
Following a hearing in February 2010, a judge ordered Chaparro temporarily reinstated to his job at the mine. In a second amended complaint, MSHA brought a claim of post-reinstatement retaliation against Comunidad Agricola Bianchi Inc. and three individual representatives of the mine.(WCxKit)
 
 
In settlement, the company agreed to permanently reinstate Chaparro to his job at the mine and to pay the full $6,000 in back wages due to Chaparro, as well as the full $15,000 penalty. The mine operator also agreed that it would not unlawfully discriminate against any miner in its employ for engaging in protected activity.


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.

 
WORK COMP CALCULATOR:   http://www.LowerWC.com/calculator.php
 
WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/
SUBSCRIBE: 
Workers Comp Resource Center Newsletter

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.

Professional Development Resource

Learn How to Reduce Workers Comp Costs 20% to 50%"Workers Compensation Management Program: Reduce Costs 20% to 50%"
Lower your workers compensation expense by using the
guidebook from Advisen and the Workers Comp Resource Center.
Perfect for promotional distribution by brokers and agents!
Learn More

Please don't print this Website

Unnecessary printing not only means unnecessary cost of paper and inks, but also avoidable environmental impact on producing and shipping these supplies. Reducing printing can make a small but a significant impact.

Instead use the PDF download option, provided on the page you tried to print.

Powered by "Unprintable Blog" for Wordpress - www.greencp.de