Title: Disability Discrimination and Workplace Safety
1Disability Discrimination and Workplace Safety
2Myths About DisabilityDiscrimination
- A question on an application form about specific
disabilities of an applicant is not improper - If an employer would have to alter the working
environment to accommodate a disabled applicant
or employee, that person is not qualified for the
position
3- Employees with disabilities have many more rights
to their jobs than do disabled applicants - Individuals with disabilities generally are
incapable of performing the jobs for which they
apply - If someone does not have a disability but others
believe she or he does, that person is still not
protected against discrimination
4- Individuals with disabilities only create
liability for employers and are not good,
productive employees - If an applicant with a disability applies for a
job, the employer must hire that applicant - HIV status is not a disability under the ADA
- Only physical disabilities are protected under
the ADA
5- Employers must give any and all accommodations
requested by employees with disabilities - If an applicant needs a reasonable accommodation
for a pre-employment test, that applicant is not
qualified
6Statutory Basis
- Americans with Disabilities Act of 1990 prohibits
discrimination in employment based on disability - Vocational Rehabilitation Act of 1973 prohibits
discrimination based on disability in receipt of
benefits under any program receiving Federal funds
7Disproving Old Barriers
- Groups with disabilities not covered under Title
VII - Many employers refused to hire disabled
applicants - Disabled applicants had to prove themselves far
more than those not disabled - Employers should strive to be disability-blind
and evaluate based on competence
8Regulation
- Vocational Rehabilitation Act of 1973
- Applies to government and any firm doing business
with government - Section 503 requires affirmative action on the
part of federal contractors and agencies - Did not protect private sector employees
9- Americans with Disabilities Act (ADA)
- Became effective in 1992
- Applies Rehabilitation Act standards to most
private employers - Protects disabled from three types of barriers
- Intentional discrimination
- Neutral standards with disparate impact
- Discrimination based on barriers that could be
overcome with accommodation
10AMERICANS WITH DISABILITIES ACT
- In order to be covered by the employment
provisions of the Americans with Disabilities
Act, both of the following must be true of the
employee - The employee has a DISABILITY because one of the
following is true - S/he has an impairment that SUBSTANTIALLY LIMITS
a MAJOR LIFE ACTIVITY, - S/he has a RECORD of having such an impairment,
OR - S/he IS REGARDED by the employer as having an
impairment, - AND
- The employee is a QUALIFIED
INDIVIDUAL because the - following are true
- S/he can perform the ESSENTIAL FUNCTIONS of the
job either - With or without REASONABLE ACCOMMODATIONS that do
not impose an UNDUE HARDSHIP.
11- Employers must be proactive
- To claim discrimination, employee must prove
- That he or she is disabled
- That he or she is otherwise qualified
- That any accommodation required is reasonable
- That he or she suffered an adverse employment
decision
12- ADA defines disability as a physical or mental
impairment that substantially limits one of more
major life activities of an individual a record
of having such an impairment being regarded as
having such an impairment - Mental impairments and contagious diseases may be
included - EEOC gives guidelines for major life activity
and substantially limits - Including perception of impairment protects
disabled employees from prejudice
13TERMS
- Disability
- Substantially limits
- Major life activity
- Record or is regarded
- Qualified individual
- Essential functions
- Reasonable accommodations
- Undue hardship
14- See Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 534 U.S 184, 122 S. Ct. 681, 151
L.Ed.2d 615 (2002)
15- Disabled employee must be otherwise qualified for
position - Must be able to perform the essential
(fundamental) functions of the position - Employee may require and request reasonable
accommodation - The removal of unnecessary restrictions or
barriers - Does not place undue hardship on employer
- Disability harassment is also prohibited under ADA
16Reasonable accommodations interactive process
- 4 steps
- 1.The employer analyzes the job to determine its
purpose and essential functions. - 2. The employer and employee work together to
identify what barriers exist to the employees
performance of a particular job function. - 3. The employer, working with the employee,
should identify a range of possible
accommodations. - 4. The employer should assess the effectiveness
of each accommodation and the preference of the
employee, and then determine if any of the
accommodations would impose an undue hardship
17- See Karraker v. Rent-A-Center, Inc., 411 F.3d
831, 2005 U.S. App. LEXIS 11142 (7th Cir. 2005)
18Effect on the Actions of Employers
- Potential liability of employer based upon tort
theory - Employer has a duty to protect employees
- Employer must not disclose unnecessary medical
information - Employers engage in genetic testing at their own
risk
19Parental Leave Policies The Family and Medical
Leave Act
- Entitlement to leave
- FMLA guarantees employees who have been on the
job at least a year up to 12 weeks of unpaid
leave per year for - A birth
- An adoption
- Care of sick children, spouses, parents or their
own illness - Requirements
- Employer
- Vacation
- Medical confirmation
- Affects about 5 percent of U.S. employers and
about 40 percent of U.S. employees - Employer confusion
20Workplace Safety
21Workers Compensation
- State law
- Benefits for work-related injuries and illnesses.
- Benefits might be paid by
- Insurance company
- Employer
- State
22Work-related injury or illness
- Must occur within the scope of employment
- Must not be intentional self-inflicted
- Employee must not be drugged or intoxicated
23Workers Compensation statutes began being passed
in the early 1900s
- Before that employers had a number of defenses if
an employee was injured - Contributory negligence
- Assumption of risk
- Fellow-servant rule
24What does Workers Compensation typically cover?
- Medical bills
- Lost income (2/3 of salary. Not subject to income
tax.) - Recovery for loss of use of body parts.
- Rehabilitation
- Death benefits for dependents
25Who is covered?
- In some states, employers do not have to provide
coverage if they have fewer employees than a
certain number. (In GA, it is 3.) - Some workers are covered under similar federal
laws - Federal Employers Liability Act
- Longshore Harbor Workers Compensation Act
- Merchant Marines Act (Jones Act)
26Advantages to Workers Compensation
- Employer is strictly liable
- Do not care who is at fault
- Less for employee to have to prove. Should be
paid faster
27Disadvantages to Workers Compensation
- Employees collect less than in a lawsuit
- Workers Compensation is the exclusive remedy
against the employer. The employer can not be
sued in negligence. - What additional damages could an employee collect
if s/he could sue in negligence? - 100 lost income (unlimited)
- Pain and suffering
- Punitive damages
28- Employee cannot sue the employer in negligence,
but what about a third party? - Employer/insurance carrier usually have a right
of SUBROGATION.
29What defenses can an employer raise?
- Worker is not an employee. S/he is an independent
contractor. - Not work related. Not within the scope of
employment. - Employee is actually able to work.
30- Georgia State Board of Workers Compensation
31- See SMB Stage Line, Inc. v. Leach, 204 Ga. App.
229, 418 S.E.2d 791 (1992) - See Collie Concessions, Inc. v. Bruce, 272 Ga.
App. 578, 612 S.E.2d 900 (2005)
32Statutory Basis
- The Occupational Safety and Health Act requires
employers to provide a place of employment free
from recognized hazards and to comply with other
standards under the act - It also requires employees to comply with health
standards and rules applicable to his or her own
actions
33Safety at Work
- Prior to the act in 1970 there was no
comprehensive requirement for employers to
provide safe working conditions - Three common law defenses often allowed employers
to escape liability - Contributory negligence
- Assumption of risk
- Fellow servant rule
34- Act covers any employer that is in a business
affecting commerce - Requires employers to comply with standards set
by Department of Labor - Compliance requirements
- Requires employers to provide workplace free from
recognized hazards - General duty clause
- Workplace death rate cut in half since act
35Excluded from Coverage
- All Governments
- Family business
- Self-employed
- Rail Roads
- Mining
- Nuclear
- Farms employing 25 people or less
36Procedure for Enforcement
- Occupational Safety and Health Administration
(OSHA) administers act - Inspects workplaces without prior notice
- Penalties may be assessed
- Standards set by National Institute for
Occupational Safety and Health - Managers may be held personally liable for
offenses
37 Compliance Provisions
- Some specific regulations apply to nearly all
types of employers - Adequate ventilation, emergency exits, safety
nets, guard rails - Proper training for employees
- Continual-training requirement
- Medical exams for exposure to toxic substances
- Driver training, seat-belt usage, vehicle
inspection
38When why does OSHA inspect?
- Imminent danger
- A death or 5 or more employees are hospitalized
- Legitimate employee complaint
- Special program or projects
- Random
- Re-inspection
39- Does OSHA need a search warrant?
40- Developing and enacting new standards can take
some time. - Emergency temporary standards may be set when
employees are exposed to grave danger from
exposure to substances and the standards are
necessary to protect the employees from danger
41General Duty Clause
- Requires employers to provide each employee
employment and a place of employment free from
recognized hazards that cause or are likely to
cause death or serious physical harm - Recognizable hazards may actually be known by the
employer or recognized by the industry
42- Likely to cause serious physical harm or death
has been construed to mean possible - Since OSHA has not addressed HIV/AIDS exposure
with a specific standard, the general duty clause
may apply - OSHA does not hold employers liable for
employees home offices, but considers cars
virtual worksites
43- Employers have been held liable for repetitive
use injuries although there are no specific
standards - Employees may refuse to work in an unsafe work
environment without fear of retaliation - OSHA has guidelines, but no rules, on workplace
violence - General duty clause may apply
44How serious a fine should OSHA impose?
- OSHA will consider
- Number of same violations
- Severity of hazard
- Number of employees exposed
45Penalty Adjustments fines can be reduced by a
percentage
- OSHA will consider
- Good faith
- Size of the business
- History (safety record)
- Abatement period was too short
46Appeals
- Employers can appeal citation, fine or abatement
period - Employees can appeal only abatement period
47Employer Reporting Responsibilities and Employee
Rights
- OSHA has strict reporting requirements
- Work-related incidents must be reported within 6
days - Work-related accidents resulting in
hospitalization or death must be reported within
48 hours - Employees also have rights which must be posted
or communicated to them by their employers
48Employer Defenses
- Reckless behavior by employees may minimize
employer liability - Physical or economic impossibility of compliance
may apply if OSHA has issued a variance - Employee reduction of risk may apply if the
workplace cannot be made safe - Greater hazard defense applies when compliance is
more dangerous than noncompliance
49Guidance?
- Employers should have standard procedures for
accident investigation - Efforts should be made to remove actions leading
to injury or accident - Employers should implement training programs to
teach proper usage of materials or machines