Tag Archives: ADA

Disability Rights Take Center Stage at Democratic Convention

Posted on July 28, 2016 by Jon Rehm

Former Sen.Tom Harkin, D-Iowa, called for the elimination of the subminimum wage for certain disabled workers Tuesday afternoon at the Democratic National Convention. Harkin’s remarks followed two speeches about coping with disabilities on Monday night by disability advocate Anastasia Somoza and recording artist Demi Lovato as Democrats chose to highlight the 26^th anniversary of the Americans with Disability Act.

The ADA isn’t normally a hot topic of discussion during political campaigns, but that law, state disability discrimination laws and other related laws will surely be affected by the fall’s federal and state elections. The presidential race will garner the most media attention. The presidential race is important because agencies like the U.S. Department of Labor and commissions like the Equal Employment Opportunity Commission will affect how the ADA is interpreted and enforced. Federal judicial appointments also impact how the ADA and parallel state laws are interpreted.

But disability discrimination laws are also affected by congressional and state races. Here are at four points to keep in mind when thinking about disability discrimination laws during this campaign season:

1. Disability rights have traditionally been a bipartisan issue. Both the Americans with Disabilities Act and the ADA Amendments Act of 2008 were passed by a Democratic Congress and signed by Republican presidents. A reader could assume that because of toxic partisanship that little progress will be made on disability rights, but that you could also infer that disability rights are so important that they could transcend partisanship even in a toxic political environment. This more optimistic view is bolstered by a study done by the Census Bureau, showing one in five Americans has a disability, so there is strong potential support for laws that help that the disabled.

2. Disability discrimination laws are a budget issue. In his speech, Sen. Harkin pointed out that 70 percent of disabled Americans are not working.Part of the reason that Republicans support disability anti-discrimination laws is that they help people maintain employment. Furthermore, the public accommodation sections of the ADA allow for disabled people to access employment through accessing transportation. The expansion of the Social Security Disability Insurance program has been a controversial issue. This increase in SSDI applications has partially been driven by the decline of workers’ compensation protections (see below). However, the purpose of the ADA was undercut in the 1990s and 2000s by the federal judiciary, which necessitated the ADAAA of 2008. It would be reasonable to assume that this misinterpretation of the ADA also helped drive the increase of SSDI applications.

3. Disability discrimination laws impact workers’ compensation laws. The Labor Department has indicated that 80 percent of the costs of work injuries are born either by government programs, private insurance or by taxpayers. In part, this is the result of a bipartisan and sustained attack on workers’ compensation laws in many state legislatures. One benefit that is routinely stripped or attacked is vocational rehabilitation, which allows workers to be retrained if they are unable to do their jobs.

In many workers’ compensation cases, a worker’s injury will give protections to that person under the ADA. This often means state workers’ compensation courts can decide questions of whether an employer could accommodate an injury and/or what duty the employer would have to reassign or retrain an injured worker who would be covered under the ADA. Recently, the 7^th Circuit Court of Appeals held that employers have an affirmative duty to reassign disabled workers. It’s still an open question whether that law would obligate an employer to reassign an injured employee under a vocational rehabilitation program. But seeing that the ADA and workers’ compensation statutes have the same general beneficial purpose of allowing disabled people to maintain employment, such case law could be persuasive.

4. The ADA may affect state disability discrimination laws. States have their own laws prohibiting disability discrimination. States like Nebraska have laws that are more expansive than the ADA when it comes to pregnancy, but provide fewer protections to disabled workers in general. In Marshall v. Eyecare Specialties, the Nebraska Supreme Court held that since Nebraska did not amend its disability discrimination statute like the ADA was amended in 2008, that Nebraska courts should be applying pre-2008 decisions interpreting the ADA to Nebraska’s anti-discrimination laws. State courts generally look to how federal courts interpret discrimination laws when they interpret state fair-employment laws, so federal elections can affect how state laws are interpreted. But state legislatures can enact laws that offer more protections than federal laws. This is the case when it comes to extending fair employment protections to the LGBT community and is increasingly true as more states are starting to view pregnancy like a disability that needs to be accommodated.

Is Your Job Causing Asthma or Making It Worse?

Posted on April 20, 2015 by Jon Rehm

The spring allergy season that also causes asthma concerns is upon us, and this is especially evident in the Great Plains, where the wind blows dust and pollen throughout most days.

A recent study from the Centers for Disease Control and Prevention (CDC) showed that 16 percent of American adults had asthma that was either caused or aggravated by conditions at work. According to the National Institutes of Health, workers who are regularly exposed to chemicals and dust, such as millers, bakers, woodworkers and farm workers, are most vulnerable to work-related asthma. The Asthma and Allergy Foundation of America states that adults lose 14 million work days per year because of asthma.

In terms of Nebraska, this means that approximately 134,400 days of work are missed in Nebraska due to work-related asthma. In Iowa, that number is closer to 224,000 days of work that are missed because of work-related asthma. This is an estimate of missed days nationwide in proportion to the population of the states.

Workers should make sure their employers are providing safety equipment that protects against respiratory injury. Employees should make sure they are carrying inhalers in the workplace if they have been prescribed them by a doctor for asthma.

But if a worker suspects their work is causing breathing problems or making pre-existing asthma worse, they should report that as a workers’ compensation injury and seek treatment with a specialist in treating breathing conditions. Medical bills for treating asthma should be covered like any other work injury, and any lost time because of work-related asthma should entitle an employee to temporary disability for lost time and permanent disability for permanent breathing problems.

Work-related asthma would also be a disability under the Americans with Disabilities Act (ADA) and under similar state laws. Further, an employee has protection against retaliation under most states’ laws, including Nebraska and Iowa, as well as under federal law, for reporting work conditions that cause asthma and/or from claiming workers’ compensation benefits for work-related asthma.

Here’s the Reality of Workers’ Compensation, the ADA, and Going Back to Work

Posted on April 16, 2015 by Jon Rehm

As shown by a recent post from LexisNexis Legal Newsroom, workers’ compensation insurers and employers are finally starting to understand the Americans with Disabilities Act (ADA). Hopefully the days of employers firing employees after their 12-week FMLA leave when the employee can’t come back to work “full duty” and/or “with no restrictions” are behind us. But just because most employers and workers’ compensation insurers are now complying with basic requirements, doesn’t mean that injured workers will be able to successfully defend their rights under the ADA and their ability to maintain employment.

Employers and insurers understand the importance of the “interactive process” and how it should involve the employee and the employer. But this is too simple. The process involves a doctor who may or may not know the employer’s true job restrictions. The insurer/employer can also be represented by a nurse case manager who is familiar with medical terminology, practice and might even have a pre-existing relationship with the doctor. That nurse case manager could also be in communication with an employer and have an idea of a job that the employee can be placed into.

In this situation, the employee is at a disadvantage. The employee usually doesn’t understand medical terminology or know the doctor. In addition, an employee probably won’t have a job description to present to the doctor so they will be at a disadvantage in return to work. This situation can be made worse if an employee appears to a doctor as if they don’t want to go back to work.

So what can an employee do?

1. Ask for actual copies of job descriptions. This way an employee is armed with the facts about the job. Furthermore, they can tell the doctor if the job description is accurate. Assuming the employee is credible in what they tell the doctor, they will have more basis than a nurse case manager in being able to describe the job.

Next, an employer has an obligation to engage in a “good faith interactive process.” If management decides that they won’t give out written job descriptions to injured workers who request them for the purpose of determining work restrictions, then that would be evidence of bad faith on the part of the employer.

2. If you can, pick your own doctor or surgeon. Unfortunately, some doctors are generally unwilling to give injured workers a fair break and can be way too cooperative with insurers or major employers. In Nebraska, employees can pick their own treating doctor and can pick their surgeon even if they give up their initial right to pick their doctor. Exercising doctor choice at least gives employees some control over their medical care and it makes it more likely that they will find a doctor who will be cooperative in regards to the ADA.

Offered Severance? Questions for Hurt Workers to Ask

Posted on October 10, 2013 by Jon Rehm

Getting hurt at work and getting fired are two of the most stressful occurrences for an employee. Oftentimes, these stressors are combined when an injured worker receives a severance agreement. This article provides five questions an injured worker who gets a severance agreement should ask:

Does signing a severance agreement settle your workers’ compensation claim? Connecticut courts recently ruled that a severance agreement does not release a workers compensation claim. However, Florida courts have held the opposite. My state of Nebraska generally does not allow workers’ comp claims to be released in severance agreements. Consult with a lawyer in your state to get a good answer. Most lawyers who do workers’ compensation work on a contingent fee basis are generally happy to spend a reasonable amount of time answering questions from injured workers faced with a severance agreement. Don’t let fear of cost deter you from contacting a lawyer.
What does your state’s workers’ compensation act cover? Some workers’ compensation statutes, like Ohio and Texas, also cover retaliatory discharge cases. My state of Nebraska makes wrongful discharge a separate civil claim. The consequence of that for injured workers in Nebraska and other states with so-called “common law” retaliatory discharge causes of action: a severance agreement would close out that case along with most other claims under fair employment statutes like the ADA, FMLA and Title VII. If you are in a state where retaliatory discharge is covered under your workers’ comp statute, then that case may not be released in a severance agreement in a comp claim if your state doesn’t allow comp claims to be settled in severance agreements.
What are your chances for receiving unemployment benefits? Finding out your chances of receiving unemployment is critical – again, especially if you are forced to choose between severance and workers’ compensation. The key questions to ask for eligibility for unemployment are 1) whether you earned enough wages to be covered 2) whether you quit without good cause or were fired for misconduct and 3) whether you are able and available for work. Of course, if you have an ongoing workers’ compensation claim, the fourth question is how receiving unemployment would affect your workers’ compensation claim. If you chose to negotiate your severance agreement, either by yourself or with a lawyer, try to include a provision where the employer chooses not to oppose your application for unemployment benefits.
Do you get benefits like vacation pay, even if you don’t sign a severance agreement? In some states, including my state of Nebraska, an employee should receive vacation pay or paid time off regardless of whether they sign a severance agreement or not. Again, if you live in a state where an employer can release a workers’ compensation claim through a severance agreement, your eligibility for vacation pay along with unemployment benefits should help you decide whether it make sense for you economically to pursue your workers’ compensation claim if you have to pick between severance and workers’ compensation. This also holds true for severance agreements in general if you an employer is asking to you to release a strong fair-employment claim for a low-ball severance amount.
Did you contact a lawyer who is knowledgeable about workers’ compensation? This is a critical period and critical especially if you live in a state where comp claims can be released by severance agreements. An experienced workers’ comp lawyer can value your comp claim. Some ways to evaluate whether a workers’ compensation lawyer is knowledge is to check whether they are a member of the Workers’ Injury Law & Advocacy Group (WILG). Another is to see if you can search them on your state’s workers’ compensation court website or through free legal research services like FindLaw and Google Scholar. A knowledgeable workers’ compensation lawyer in your state should also be able questions 1-4.

Legal Avenues Exist for Dealing with Workplace Bullying

Posted on December 6, 2012 by Jon Rehm

Bullying isn’t limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human-resource professionals. One study states that 35 percent of employees are bullied at work. In general, if you are being bullied at work, you should document the bullying, try to constructively confront the bully and speak with HR if the bullying continues. If bullying is persistent, you should also consider looking for other employment.

Currently there are no state or federal laws in Nebraska that specifically address workplace bullying. However, in many situations, there are laws in place that employees can use to protect themselves against workplace bullying, from a legal perspective. Exercising your rights under these laws may not stop the bullying. But by exercising your rights under the laws described below you could force a smart employer to take some action against a bully. And by using these legal tools, you could also possibly expose your employer to a retaliation suit if you are fired after trying to stop a workplace bully.

1. Title VII and the Nebraska Fair Employment Practices Act: Both of these laws make it unlawful to harass a worker based protected classes such as sex, race, nationality, disability, age, and religion. If you are being harassed based on one of these factors, the law forces you to address these complaints with management in order for you to successfully bring suit. While it is difficult to win a harassment case in Nebraska, the fact that you must bring the harassment to the attention of management at least forces management to address the situation. If management is smart they will realize that they need to address the harassment or else they could be subject to legal liability. If management is enlightened, they will realize the cost of employee turnover and address the situation regardless of any potential legal liability.

Many people believe that harassment based on sexual orientation is not against the law in Nebraska. However, gays and lesbians in Nebraska may be protected from harassment in some situations under the legal theory of “sex plus” discrimination.

So what if workplace bullying is not based on a protected class? Even then, employees might have legal protections under three laws: the National Labor Relations Act; the Americans with Disabilities Act; and the Family and Medical Leave Act.

2. The National Labor Relations Act. The NLRA protects workers’ rights to act together to address workplace conditions. The NLRA applies regardless of whether a workplace is unionized. If a boss or co-worker truly is a bully, then other people will likely believe they are being bullied as well. By acting collectively, employees stand a better chance of remedying the situation. For example, in the case of Teetor v. Dawson County Public Power District, employees essentially forced management to fire a longtime supervisor who was notorious for bullying subordinates. The supervisor’s bullying was one of the reasons why employees tried to unionize. Since the employer did not want their employees to unionize, they fired the bullying supervisor.

Also by acting collectively, employees give themselves legal protections against retaliation by complaining against a bullying boss. Employees have no protection if they complain individually against a boss. The absence of other people complaining about a workplace bully could also lead a court to believe that what one person views as workplace bullying is really just evidence of a personality conflict or oversensitivity on the part of the employee.

3. The Americans with Disabilities Act and the Family and Medical Leave Act. If bullying is severe enough to either cause or aggravate a mental illness, an employee may be able to invoke the ADA and the FMLA. The ADA forces employers to make reasonable accommodations to employees with disabilities. In theory, an employee should be able to suggest an end to bullying on the part of the co-worker or boss as the reasonable accommodation. Also, by asking for an accommodation, an employee gives themselves legal protection against retaliation by their employer. Under the FMLA, an employee can take job-protected leave to treat a serious medical condition. Asking for FMLA leave can leave your employer open to legal liability if they wrongfully deny you FMLA leave or retaliate against your taking FMLA leave.

I hedge a little bit on the use of the ADA and the FMLA as anti-bullying tools. Employees who use the ADA and FMLA as an anti-bullying tools need to be confident that their situation is more than just a personality conflict with a boss or co-worker. An honest counselor or psychologist should be able to tell you this. It would also be helpful to get some confirmation of the bullying from co-workers and trusted friends. Employees also need to make sure that they aren’t using the ADA as an excuse for unsatisfactory performance and poor attendance. Defense lawyers are expert at sniffing out people using the ADA and the Family Medical Leave Act to cover up for bad attendance and poor performance.

But if an employee can clear those hurdles, it can make sense to ask for an end to bullying as a reasonable accommodation under the ADA. I think the NLRA is a better tool to deal with workplace bullies than the ADA, but sometimes co-workers are too afraid to support a colleague who confronts management.

Not every incidence of bullying can be remedied by these laws. Also, if you work for a small employer, your employer may not have to comply with fair-employment laws. However, before a bully forces you to quit, or before you do something out of anger that causes you to get fired, you should consult with a knowledgeable employment-law attorney.

How the ADA and Injured Workers’ Protections Interact

Posted on June 14, 2012 by Jon Rehm

If an injured worker has documented and permanent work restrictions or even long-term work restrictions, thanks to the Americans with Disabilities (ADA) Amendments Act of 2008, that worker can likely invoke the protections of the ADA, unlike the injured worker in the recent St. Martin v. City of St. Paul case. He was found not to be disabled despite being permanently restricted to light-duty work.

However in Nebraska, employers are not obligated to put an injured worker in a light-duty job like they are in other parts of the country.

Injured workers have to reach out to their employers to help themselves stay employed. This reaching out could include suggestions about modifying the job or changing work hours. It’s good practice to be able to document these attempts to reach out to an employer via e-mail. If employers ignore these suggestions, then the employee has a good case for a failure-to-accommodate claim. However in Nebraska, employers are not obligated to put an injured worker in a light-duty job like they are in other parts of the country. Employers can force employees to apply for re-assignment. The employee then needs to be diligent about applying for open jobs. Otherwise, they can jeopardize an otherwise-strong ADA claim.

One trap disabled workers fall into is assuming that their employer is trying to get rid of them and failing to apply for jobs after a reasonable assignment. Courts in Nebraska take this behavior from workers as being unreasonable and use such behavior to justify dismissal of ADA claims.

Sometimes doctor-given restrictions do not match what an employee can actually do. Employees may be tempted to quit if an employer adheres rigidly to doctor-given restrictions. Technically an employer has to take an employee’s explanation of their own disability into account when setting a work restriction. However, courts in Nebraska usually require the employee to give something more than complaints of pain in order for an employer to modify doctor-given restrictions. The wisest move for an employee in such a situation is to try to do the job for a week or so and if the pain continues to consult with a doctor again about changing the restrictions. Employees might want to consider getting a second opinion if they believe their current doctor isn’t cooperating with work restrictions. However, employees should probably consult with a competent workers-compensation attorney if they are switching doctors in the context of a workers-compensation claim.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: ADA

Disability Rights Take Center Stage at Democratic Convention

Is Your Job Causing Asthma or Making It Worse?

Here’s the Reality of Workers’ Compensation, the ADA, and Going Back to Work

Offered Severance? Questions for Hurt Workers to Ask

Legal Avenues Exist for Dealing with Workplace Bullying

How the ADA and Injured Workers’ Protections Interact

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