Posts belonging to Category disability



Momentum Building for Putting Disabled to Work

Nice to see how much attention RespectAbilityUSA has gotten in just a little more than a month since I posted this plea to employers by the Washington-based nonprofit to get more disabled Americans into the workforce.

122470463 -- disabled execThe group — dedicated to empowering people with disabilities — made sure I saw this latest release touting all the big names to have signed on since that plea went out Jan. 13, including BMX bike legend and host of MTV’s The Challenge, T.J. Lavin; Delaware Gov. Jack Markell; U.S. Rep. Pete Sessions, R-Texas; U.S. Rep. Brad Sherman, D-Calif.; and Paralympian Matt Cowdrey.

Yes, the word is getting out. So much so that Lavin is now starring in a new public-service ad for RespectAbilityUSA that started airing Feb. 14. In the ad, he says “whether it is me, you, or someone who just wants to work — we all should have the same opportunity to achieve the American dream.”

Last month’s post included results from a just-completed RespectAbility poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. This latest announcement, one short month later, mentions companies that are starting to get it, such as Walgreen’s, EY and AMC. They “have found people with disabilities to be highly valued employees who drive their company’s productivity as loyal, safe employees,” the release says.

Now, says Respectability President Jennifer Laszlo Mizrahi, “it is time for other companies to open new doors for people with disabilities.”

“The bottom line,” she says, “is that people with disabilities want a hand up, not a hand out. They want to work side-by-side with people who don’t have disabilities, make their contribution to society, pay their taxes and achieve the American dream.”

I like how Lavin puts it, too: “Recognize the disability, respect the ability, but imagine the possibility.”

We’ll keep watching this momentum and where it heads. In the meantime, employers and their HR executives should be bracing for two final rule revisions — issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs and impacting affirmative-action plans for veterans and people with disabilities — that go into effect on March 24. I have a news analysis appearing soon on our website, HREOnline.com, about these new rules and what they mean, and will share a link here when it goes live.

You might say the rules, revising the OFCCP’s Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act, are the government’s way of ensuring this momentum does, indeed, go forward.

Broadening Definitions Under the ADA

In case you missed it, employers were recently given further insight as to what qualifies these days as a disability under the ADA Amendments Act of 2008.

On Jan. 23, the Fourth Circuit Court of Appeals ruled that, as long as a temporary impairment is sufficiently severe, it would qualify as a disability, reversing a district court decision regarding a wrongful-discharge claim.

200249331-001The case involved Carl Summers, who, as a senior analyst for Altarum Institute, fell and injured himself while exiting a commuter train. Summers, who underwent leg surgery and was told by doctors he might not be able to walk normally for at least seven months, was provided with short-term-disability benefits. He suggested that he start working part-time from home and gradually return to full-time work, but representatives from Altarum failed to follow up on Summer’s return-to-work plan or suggest any alternative reasonable accommodation. The firm eventually terminated him, installing another analyst in his position.

In Sept. 2012, Summers filed a complaint under the ADA, alleging he was wrongfully terminated because of his disability.

In its ruling, the Fourth Circuit said “an impairment is not categorically excluded from being a disability simply because it is temporary” and that Summer’s alleged impairment “falls under the amended Act’s expanded definition of disability.”

I asked Paul Mollica, of council with Outten & Golden LLP in Chicago, for his thoughts on what the decision—which many believe could be the first ruling of its kind under the ADAAA—means for employers.

Going forward, he told me, employers are going to need to accept that the “lessons learned up to this point aren’t true anymore” and “retool” accordingly.

The Ever-Expanding ADA

Gavel and JudgeMany employers are already unclear on what employees are protected under the American with Disabilities Act, and unsure of their responsibilities in complying with the ADA.

And, the ranks of the disabled continue to grow, as we recently saw when the American Medical Association issued guidelines classifying obesity as a disease.

An appeals court’s recent decision in the case of Anthimos Gogos v. AMS Mechanical Systems Inc. may broaden the ADA just a bit further, to include individuals with temporary conditions.

The details, according to the lawsuit:

Anthimos Gogos began working as a welder and pipe fitter for AMS in December 2012. The following month, Gogos’ blood pressure spiked significantly, and he experienced intermittent vision loss. Soon after arriving for work on Jan. 30, 2013, Gogos discovered redness in his right eye. With his supervisor’s permission, Gogos left to seek medical treatment, but encountered his general foreman before he left the building. According to court records, Gogos told the foreman he was heading to the hospital because “my health is not very good lately.” The foreman “immediately fired” Gogos.

Gogos sued the company, alleging disability bias. A lower court initially ruled that high blood pressure didn’t qualify as a disability, as it is a “transitory” condition. An appeals court recently disagreed, however, overturning the ruling in favor of Gogos.

In its decision, the appeals court explained that an impairment may qualify for ADA protection even if it is “transitory and minor” or episodic. In this case, the employee’s high blood pressure and recurrent blindness significantly impaired his circulatory function and eyesight. The case now heads to trial.

The court’s ruling that the plaintiff’s spikes in blood pressure and intermittent vision loss satisfied the definition of disability “wasn’t surprising,” says Ellen McLaughlin, a partner in the Chicago office of Seyfarth Shaw and past national chair of the firm’s labor and employment law department.

“The [ADA] Amendments Act made it clear that, if an impairment substantially limits a major life activity, an employee will be determined to be disabled,” says McLaughlin, “even if the impairment is transitory or minor.”

The difficulty for employers and HR, she says, “lies in determining how long an impairment must last to be considered a disability under the Amendments Act.”

HR must be “very cautious” in making judgments that impairments of short-term duration are not disabilities, says McLaughlin.

“Instead, [HR] should look to see how the case law is developing in this area. It’s always easier to have bright-line tests, but, unfortunately, for the time being this area is for the most part very grey.”

Disabled Americans Want Jobs, Not Benefits

Linking a Jan. 8 release with Jan. 7 news that the Social Security disability system may have been bilked out of hundreds of millions of dollars by 9/11 responders and others 183174586 -- disabled at workfaking disabilities, RespectAbilityUSA made a special plea to employers to turn some numbers around and get more disabled Americans into the workforce.

In the release, RespectAbility — a Washington-based nonprofit focused on empowering people with disabilities — included results from its latest poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. (Here is a link to the final poll announcement made on Friday, with slides.)

“Too many people with disabilities are prevented from having a real job at a real wage because of employer misconceptions and because the structure of the benefit system prevents people from working more,” says Jennifer Laszlo Mizrahi, the company’s president. “Republican, Democrat, Independent — what comes across clearly in the poll is that people with disabilities want to work, pay taxes and be full members of our society.”

Addressing the 9/11 scandal — involving New York cops and firefighters allegedly making fraudulent claims of depression and anxiety to their doctors for lucrative awards — Mizrahi says her organization is “disgusted by the actions of individuals [that make] the rest of us with real disabilities and those who care about them look guilty, and it makes it more difficult to have important conversations about our hopes, aspirations and dreams of entering the workforce and being active, contributing members of society.”

The release cites findings that 70 percent of working-age Americans with disabilities are outside the workforce, compared to 28 percent of people with disabilities. It also includes data showing the disability community gives President Obama, Congress and their governors failing grades in how much they trust them to increase their employment opportunities.

This certainly isn’t the first time we at HRE have covered the merits of attracting, hiring and retaining people with disabilities. Three of my recent favorites are this recent blog post by Senior Editor Andrew R. McIlvaine about a disability summit co-hosted by the U.S. Chamber of Commerce highlighting companies that are doing those things right, our December benefits column by Carol Harnett about disability’s power to instruct and how she learned early on that everyone deserves a fair chance, and this November feature by Julie Cook Ramirez about a company — Innotrac — going the distance to give disabled workers just such a chance.

I like the numbers RespectAbility provides though, even though they sadly underscore a huge discrepancy between what disabled Americans want and what they’re currently getting.

A Broader Definition of ‘Reasonable Accommodation’

Meanwhile …

As the nation stays riveted on Washington’s dramatic avoidance of a default/continued-shutdown guillotine, I’ll venture to point out that legal events impacting employers have 93424272-- handicap parkingbeen rumbling along in other rings of this governmental circus.

A posting about this recent case, for instance, caught my eye — a ruling from the Fifth Circuit Court of Appeals that further broadens the Americans with Disabilities Act’s definition of “reasonable accommodation” to include — well, sort of — granting a free on-site parking space so an employee has an easier time getting to the door.

The ruling in the case, Feist vs. State of Louisiana, essentially takes employers beyond the ADA requirement that an employee be accommodated so he or she can accomplish the essential functions of the job to now include a guidance from the U.S. Equal Employment Opportunity Commission saying reasonable accommodation must include anything that enables workers “to enjoy equal benefits and privileges of employment.”

In this case, yes, a free parking spot — which Assistant Attorney General Pauline Feist requested of her employer, the Louisiana Department of Justice, due to osteoarthritis in her knee. (According to the case, she was denied the spot by her employer, filed a discrimination charge with the EEOC, was later fired for poor performance, and filed suit in the Fifth Circuit’s district court, claiming disability bias and retaliation. The district court ruled in favor of the Louisiana DOJ, but the appeals court took her side, essentially saying there was more to her accommodation than simply allowing her to do the essential functions of the job.)

“In short, the court said, there doesn’t need to be a link between an employee’s essential functions of a job and a request for reasonable accommodation,” writes HRMorning.com‘s Dan Wisniewski in his post.

He cites this HR takeaway from Christopher Ward, writing on the Labor & Employment Law Perspectives blog:

The Fifth Circuit’s decision … follows a clear trend suggesting that employers must take a broad view of their obligations with respect to disabled employees. Following the Court’s conclusion, an employer’s accommodation analysis is not limited to an evaluation of whether a potential accommodation is reasonable as measured against an employee’s job functions; instead, the focus should be simply [on] whether the potential accommodation is reasonable … . Prudent employers should thus focus their accommodation analyses more on the reasonableness of potential accommodations themselves and put less emphasis on the accommodation’s impact on the employee’s ability to perform his or her job functions.

Just more to focus — or refocus — on as you let out the breath you’ve been holding, wondering if there’d be a government looming over you at all.

RA and the Workplace

RAMany of us — myself included — know someone who suffers from rheumatoid arthritis. The disease, an autoimmune disorder characterized by progressive joint destruction that can leave hands and feet gnarled and misshapen and afflict its sufferers with chronic pain and discomfort, affects approximately 2.1 million Americans (the overwhelming majority of them women). In addition to the physical pain it inflicts, people with RA can also suffer from lost earnings and ruined careers: Twenty percent to 30 percent of people with RA can become permanently disabled within two to three years of diagnosis if they aren’t treated.

Thankfully, recent advances in medicine have enabled many people with RA to lead lives of relative comfort and stay in the workplace. So-called DMARDs (disease-modifying anti-rheumatic agents) can slow the disease and alleviate and even prevent many of its symptoms. Of course, these drugs are also very expensive. Employees who have RA may forgo some of the necessary treatments if they’re forced to choose between, say, paying the rent and this month’s injection. Situations such as these will ultimately cost the employer as well, according to a new report from the nonprofit Integrated Benefits Institute.

Inadequate coverage and treatment for the disease can lead to increased costs associated with missed work and lost productivity, according to the study, conducted by IBI president Tom Parry and IBI’s research director, Kimberly Jinnett. However, so-called Value-Based Insurance Plans can “encourage early and aggressive use of disease-modifying anti-rheumatic agents,” according to the study. VBIPs are designed to increase medication and treatment adherence among sufferers of chronic diseases like diabetes and RA by eliminating certain deductibles and copays. You can read more about them here.

Parry elaborates further:

Employees who shy away from treating their illness early and aggressively because of higher deductibles and co-pays may experience poorer health and a greater likelihood of short-term disability. Time away from work — particularly with episodes of longer-duration STD — has significant consequences for employers in the form of lost productivity.”

In other words, shouldering the bulk of the costs for DMARDs can not only alleviate the pain of those with RA, but the pain caused to the organization when a skilled and valuable employee departs for good.

Disabled Shouldn’t Mean ‘Unemployed’

“Just because a man lacks the use of his eyes doesn’t mean he lacks vision.” That’s a quote from Stevie Wonder, who didn’t let lifelong blindness stop him from becoming one of the most successful pop musicians in the world. However, given that his fellow disabled Americans currently have a labor force participation rate of only 20 percent (compared to 70 percent for non-disabled Americans) and an unemployment rate of 14 percent (compared to 7.6 percent for their non-disabled counterparts), it’s a good bet that there’s a lot of talent going to waste due to a lack of outreach and accommodation by companies that may never know what they’re missing out on. The U.S. Chamber of Commerce is trying to change this via its partnership with the U.S. Business Leadership Network to highlight “inclusion practices related to disability employment.”

Last week, the two organizations hosted their second annual disability summit, which highlighted companies that can serve as models for the rest of the business community for their efforts in attracting and retaining disabled employees. “Leveraging the skills, talents and experience of workers with disabilities is not only essential to our workforce competitiveness, but it’s also the right thing to do,” said Chamber CEO Thomas J. Donohue, in announcing a new report (titled Leading Practices in Disability Inclusion) that summarizes what those companies are doing.

The report doesn’t contain anything truly groundbreaking, but it does serve as a good reminder of the importance of reaching out to organizations that work with disabled people to ensure they know about job opportunities and the resources available to help them succeed in those jobs. The companies profiled include Florida Blue, Florida’s Blue Cross/Blue Shield health insurer, which since 2006 has participated in Disability Mentoring Day. During the event, disabled participants are paired with a mentor to experience a “day in the life” of working at the insurer and are then matched with recruiters who provide them with career advice to assist them in their job search. Florida Blue also provides various internship programs for people with disabilities and tries to help its non-disabled employees understand what it’s like for their disabled counterparts via a voluntary program where they experience having a disability in a simulated work environment.

IBM, meanwhile, partners with the American Association for the Advancement of Science to provide internships and full-time job opportunities for the disabled and provides its recruiters, employees and managers with disability awareness training. It also provides consulting services to other companies that seek to “integrate accessibility solutions” into their corporate activities. Microsoft, like many of the companies profiled, offers an employee resource group that serves disabled employees as well as the parents of disabled children. The technology company also developed a “disability tool kit” for its recruiters to ensure they engage in effective and respectful communication when working with disabled job candidates. Here at HRE, we’ll also be focusing on disability in the workplace with a three-part series beginning with our November issue that will profile companies that are standouts for going the extra mile to reach out to disabled workers.

One More Try for Pregnant Workers Bill

pregnantAlthough it’s been 35 years since the Pregnancy Discrimination Act was signed into law, pregnant women can still face a tough time in the workplace, particularly in occupations where being on your feet most of the day and/or lifting heavy objects are part of a regular day’s work. Although it met with little success last year, Senators Robert Casey (D.-Pa.) and Jeanne Shaheen (D.-N.H.) are reintroducing the Pregnant Workers Fairness Act in the Senate — just two days after Mother’s Day, not coincidentally — while several of their counterparts in the House are reintroducing it in that chamber as well.

More than three in five pregnant women in the United States (62 percent) are in the labor force, according to the National Partnership for Women & Families, which is actively promoting the legislation.

The PWFA would make it an unlawful employment practice for certain public and private employers to not make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a job applicant or employee, unless a covered entity can demonstrate that the accommodation would impose an undue hardship on its operations or business. It would also prohibit employers from requiring pregnant workers to take leave from their jobs if another reasonable accommodation is available that would allow them to continue working.

Proponents say the PWFA is necessary because, although existing laws prohibit organizations from discriminating against pregnant workers, the laws do not recognize pregnancy as a disability and do not compel employers to provide accommodations for expectant mothers. The new law would offer pregnant workers the same protection that other disabled employees — such as those who’ve injured their backs or suffered heart attacks — currently enjoy, supporters say.

PWFA advocates point to incidents in which pregnant workers have been denied bathroom breaks or compelled to take unpaid leave as examples of why the new law is needed.

“In a country that claims to value family and fairness, having a baby should not mean losing a job and jeopardizing family financial stability,” said NPWF president Debra L. Ness in a statement supporting the Act.

 

Largest Verdict in EEOC History Just Awarded

149796345--juryA Davenport, Iowa, jury awarded the U.S. Equal Employment Opportunity just yesterday the largest-ever verdict in the agency’s history — more than $240 million — in a case involving the long-term abuse of workers with intellectual disabilities.

The class-action case against Hill Country Farms Inc., doing business as Henry’s Turkey Services, was actually covered by me back in April 2011 in this news analysis. Here, too, is the ruling by the U.S. District Court for the Southern District of Iowa, Davenport Division, in September 2012, granting the EEOC partial summary judgment to move forward and also ordering the Goldthwaite, Texas, company to pay the workers $1.3 million for unlawful disability-based wage discrimination.

Coupled with yesterday’s awards of $2 million and $5.5 million for each of the 32 mentally disabled turkey processing-plant workers, for punitive and compensatory damages, respectively, the total judgment — to be exact — comes to $241.3.

The links above, along with this release by the EEOC, spell out all the sad, sordid details of this now-historic case. But just to recap here, the EEOC lawsuit says that, for many years, the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment, such as requiring them to live in deplorable and substandard living conditions, and failing to provide adequate medical care when needed.

The EEOC also claims verbal abuses, including frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Members of the class reported acts of physical abuse as well, including hitting, kicking, at least one case of handcuffing, forcing the men to carry heavy weights as punishment and being dismissive of complaints of injuries or pain.

“The verdict sends an important message that the conduct that occurred here is intolerable in this nation, and hopefully will help to restore dignity and acknowledge the humanity of workers who were mistreated for so many years,” says EEOC Chair Jacqueline A. Berrien.

According to this Fox News account, an attorney for Henry’s didn’t respond to a message seeking comment. But the company’s president, Kenneth Henry, told the Quad-City Times after the trial  that he planned to appeal, calling some of the evidence “terribly exaggerated.”

The news account also says it’s highly unlikely the now-defunct Henry’s Turkey Service has anywhere near enough remaining assets to cover the $7.5 million in damages each man was just awarded.

“Do you think I can write a check for that?” Kenneth Henry, 72, the company’s president, told the newspaper.

But federal officials are vowing to recover every last cent they can for the men, who had been “virtually enslaved” for many years, according to developmental psychologist Sue Gant, who  interviewed them at length for the EEOC, the account states.

 

Dillard’s Settles Sick-Leave Class-Action Suit

Dillard’s Inc., the Little Rock, Ark.-based retail chain, has agreed to pay $2 million and commit to “extensive, company-wide injunctive relief” to settle a class action brought by the Equal Employment Opportunity Commission over what the agency said was an employee sick-leave policy that violated the Americans with Disabilities Act.

Under the policy, Dillard’s employees were required to disclose personal and confidential medical information to the retailer in order to be approved for sick leave. The EEOC filed its original lawsuit against Dillard’s in 2008 in federal district court on behalf of Corina Scott, a former cosmetics counter employee at a Dillard’s store in El Centro, Calif., and other employees who were required to disclose the exact nature of their medical conditions to be approved for sick leave since 2005. Although Scott and others had verifications from their doctors confirming they were absent for medical reasons, they did not feel comfortable disclosing this level of information to Dillard’s and, in fact, were advised against doing so by their doctors.

The EEOC argued that Dillard’s policy violated the ADA, which prohibits employers from making inquiries into the disabilities of their employees unless it is job-related and necessary for the conduct of business. The district court ruled that Dillard’s policy was “facially discriminatory” under the ADA. The EEOC also argued that Dillard’s policy limited the amount of health-related leave an employee could take and did not regularly engage in “an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation of the employee’s disability.”

The EEOC said it expects to identify “thousands” of victims from across the U.S. through the claims notice process.