DISABILITY

  • HOW WE ARE FAILING AUTISTIC JOB SEEKERS AND WHAT YOU CAN DO ABOUT IT

    AUTHOR: // CATEGORY: disability, Featured, interviewing, screening

    If you are familiar with the topic of autism and the workplace, you’ve likely noted that extensive time and energy is dedicated to the way in which an autistic job seeker can change their presentation style in effort to get hired. I was recently contacted by a job candidate on the autism spectrum who wrote:

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  • HOW TO TAILOR THE RECRUITMENT PROCESS TO ATTRACT AND RETAIN AN AUTISTIC WORKFORCE

    AUTHOR: // CATEGORY: disability, Featured

    I’m too anxious or unsure to apply, or I take too many days to think over the prospects of what that job would be and entail and how comfortable I would be in the position … and then the application period has closed. I’m not very good at speaking about myself and “selling” myself, particularly in fast-paced job interviews. — Library Media Technician, USA

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  • THE DO’S AND DON’TS OF ADA ACCOMMODATIONS: 3 NEW RULINGS

    AUTHOR: // CATEGORY: ada, ADA accommodation, disability, disability discrimination, Employment Law, Reasonable Accommodation, Special Report

    FMLA fitness for duty certification

    Employers are facing more disability discrimination lawsuits than ever – despite their best compliance efforts. 
    In the past year alone, over 25,000 ADA charges were filed by the EEOC.

    The right way to accommodate

    One area that’s often a point of contention? The accommodation process. Workers and employers can have a very different idea of how a disability should be accommodated.

    And while each disability needs to be evaluated on a case by case basis, several recent court rulings shed further light on employers’ ADA accommodation responsibilities.

    1. In Brumley v. United Parcel Service, a court ruled that ADA accommodations don’t necessarily have to be given to employees immediately.

    Melissa Brumley delivered packages for UPS when she hurt her back lifting a heavy box from her truck.

    She took leave to heal, and her doctor said when she returned to work she could no longer lift packages or drive. Since these were two essential functions of her job, Brumley’s manager put her on leave while waiting on more information from her doctor.

    After beginning the interactive process and considering a reassignment, Brumley’s doctor cleared her to go back to her old job, and UPS ended the process.

    But Brumley sued the company for failing to accommodate her during those weeks she was on leave, which resulted in loss of pay.

    A district court ruled in favor of UPS, and on appeal the 6th Circuit agreed. It said just because the company didn’t accommodate the employee immediately didn’t mean it violated the ADA.

    UPS began the interactive process and only stopped once Brumley was cleared to go back to her old job without an accommodation.

    The key things the company did? Beginning the process and requesting additional info from Brumley’s doctor – this showed the court a good faith effort to comply with the ADA.

    2. In Sharbono v. Northern States Power, a court ruled a company that failed to find an accommodation didn’t fail to fulfill its ADA duties.

    After a foot injury, James Sharbono wasn’t able to wear the steel-toed boots required by his company’s safety procedures.

    HR worked with Sharbono and suggested several accommodations, such as altering his boots and getting a custom pair made, but none worked out. Sharbono was forced to retire, and he sued for ADA violation.

    But the 8th Circuit ruled the company acted in good faith. It worked with Sharbono and suggested several accommodations. It was only after exhausting all options that Sharbono was forced to retire. The court said the company fulfilled its ADA responsibilities, despite finding no accommodation for Sharbono.

    3. In Stokes v. Nielsen, a court decided companies can be required to make accommodations that cover more than just essential job functions.

    Jacqueline Stokes had impaired vision and received multiple accommodations that allowed her to do her job. Stokes then requested special meeting handouts, printed in large letters, that she could read beforehand.

    Despite many promises from HR, Stokes never received her requested handouts. She sued, claiming to be denied a reasonable accommodation under the ADA.

    While the company argued it gave Stokes everything she needed to do her job, therefore fulfilling its ADA responsibilities, the Fifth Circuit disagreed.

    “Our circuit has explicitly rejected the requirement that requested modifications must be necessary to perform essential job functions to constitute a reasonable accommodation,” it said. And Stokes’ request was deemed reasonable.

    This case shows if an employee makes a reasonable request for their job, it’s easier to just grant it.

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  • MAKE DISABILITY A PART OF YOUR 2019 CORPORATE SOCIAL RESPONSIBILITY

    AUTHOR: // CATEGORY: corporate social responsibility, disability, Featured

    It seems like the holiday season gets marketed earlier with each passing year. This year, I had barely closed the door on my last trick-or-treater when I started seeing and hearing ads announcing that the holiday season, or rather shopping season, had arrived!

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  • COURT RULING HIGHLIGHTS WHEN ALCOHOLISM IS AND ISN’T ADA-PROTECTED

    AUTHOR: // CATEGORY: ada, disability, disability discrimination, employer lawsuit, Latest News & Views, Special Report

    A recent ADA lawsuit shows that saying you are disabled and proving it in court are two very different things. 

    Discrimination, harassment claims

    James Johnson, an addiction counselor assistant at New York State Office of Alcoholism and Substance Abuse Services (OASAS), filed a disability discrimination suit under the ADA against his employer. He claimed that because he was a recovering alcoholic, he was discriminated against and harassed.

    Johnson alleges that he was passed over for a promotion, denied a transfer and assigned jobs “nobody wants to do,” because of his disability.

    Johnson said he received negative performance evaluations because of his alcoholism, which created a hostile work environment.

    Not a disability

    The plaintiff’s claim failed for two reasons. The first was that Johnson couldn’t prove a connection between the alleged harassment and his alcoholism. In fact, the plaintiff couldn’t even show that OASAS was aware of his condition.

    But the second — and more important — reason Johnson’s claim failed was that he couldn’t prove his alcoholism was considered a disability under the ADA.

    To meet the ADA’s definition of a disability, the plaintiff would’ve had to show that:

    • he suffered from a physical or mental impairment that substantially limited one or more major life activity
    • he had a record of such impairment, and
    • the company regarded him as having that impairment.

    It wasn’t enough to support his claim that Johnson considered himself a recovering alcoholic.

    The court said:

    “Although alcoholism is considered an impairment under the ADA … more than a physical or mental impairment is required to satisfy the definition of a disability.”

    This case is important for employers because it shows that the bar is set fairly high for an employee to prove that they have a protected disability and that an ADA violation occurred.

    Cite: Johnson v. New York State Office of Alcoholism & Substance Abuse Services, Dist. Crt. S.D. NY, No. 16-cv-9769, 3/13/18.

     

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  • 4 TIPS TO HELP YOU RECRUIT PEOPLE WITH DISABILITIES

    AUTHOR: // CATEGORY: disability, diversity, Featured, Legal, Compliance & Policies, recruiting

    Every business seeks improvement, whether that’s through bottom-line improvement or finding the best candidates to fill certain positions. Sometimes the two objectives go hand-in-hand, and actively seeking diverse candidates can help businesses improve both of these objectives. Diversifying your staff has been proven to lead to positive outcomes for multiple aspects of a business, but has your team ever thought about diversity in broader terms than a person’s race or gender? Recent trends have shown that businesses are beginning to embrace people with disabilities as a group to retain for a competitive advantage.

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  • U.S. AGENCIES GET NEW RULES ABOUT DISABILITIES

    AUTHOR: // CATEGORY: Americans With Disabilities Act (ADA) (ADAA), disability, Featured, Legal, Compliance & Policies

    ramp

    In the U.S., the government is out with new rules related to hiring people with disabilities, guidance that currently applies only to government agencies, not the private sector.

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  • CAN YOU REFUSE TO HIRE SOMEONE BECAUSE THEY’RE FAT? COURTS SAY ‘YES’

    AUTHOR: // CATEGORY: ada, ADAAA, disability, Employment Law, lawsuit, medical exams, obesity, Special Report

    ADA, disability, Obesity

    In an era in which just about everything is regarded as a disability, at least two courts have stepped forward and labeled one major condition as NOT being a disability. Which means employers have some freedom on how to deal with it. 

    The condition in question: obesity.The U.S. District Court for the District of Nebraska – Omaha recently ruled that Melvin Morriss’ obesity didn’t qualify him for protection under the ADA because his obesity wasn’t a disability.

    And when Morriss appealed, the U.S. Court of Appeals for the Eighth Circuit upheld that ruling.

    Job offer rescinded, lawsuit filed

    Morriss applied for a machinist position with BNSF Railway Company and was extended a conditional offer of employment.

    But because the position was safety-sensitive, BNSF said Morriss had to pass a medical review before he could officially get the job.

    Note: The fact that this was a safety-sensitive position is very important, because under the ADA you can’t require individuals to undergo medical examinations unless they are “job-related” — and are required of everyone in the same position. And generally speaking, requiring exams of those in safety-sensitive positions tends to satisfy the “job-related” requirement.

    One of the medical exam’s requirements was that applicants for a safety-sensitive position could not have a body mass index of 40 or higher — because it would lead to the risk of developing other medical conditions (and, potentially, safety risks). The exam revealed Morriss, whose measurements came in at 5’10 tall and 281 pounds, had a body mass index of 40.4.

    As a result, BNSF rescinded his job offer, saying in an email he was:

    “[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).”

    Morriss then sued BNSF claiming the employer had violated the ADA because it denied him employment due to his disability.

    BNSF fought to get his lawsuit thrown out, arguing obesity wasn’t a disability under the ADA (or, for that matter, the ADAAA). The district court — and later the appeals court — agreed with BNSF and threw out Morriss’ lawsuit.

    The courts said that for a condition to be an ADA-qualifying disability, it must be the result of some physiological disorder that affects a major body system.

    And because Morriss had no physical limitations of any kind (as he indicated during the medical exam), and no underlying condition associated with obesity — such as diabetes, hypertension, cardiac disease, etc. — he wasn’t disabled.

    The courts also added the fact that Morriss’ obesity may cause a “predisposition to illness or disease” didn’t qualify him as disabled under the ADA either — as the ADA doesn’t regard predisposition as a factor in determining whether or not someone is disabled.

    Buyer beware

    Although BNSF’s case is clearly a win for employers’ rights, companies would still be wise to take it with a grain of salt.

    Yes, BNSF won, and two courts clearly ruled that obesity, on its own, isn’t a disability. But BNSF still had to deal with the legal mess caused by its actions to automatically disqualify individuals it deemed too obese to be in safety-sensitive positions.

    And employers who disqualify individuals for being obese risk having to do the same — and some courts may interpret the ADA more leniently than these did. Plus, the EEOC has been quick to rush to the defense of people like Morriss, who’ve been declined employment because of their weight.

    Bottom line: This issue is far from settled, although employers now have a better basis for defending actions they take against employee due to weight issues.

    Cite: Morriss v. BNSF Railway Company

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  • MEET 2 NOMINEES FOR WORST MANAGER OF THE YEAR

    AUTHOR: // CATEGORY: disability, Management, Special Report, workers compensation

    What employees hate most

    You may have dealt with pranksters in the past, but you’ve probably never dealt with what these two managers made their employees endure. 

    Imagine someone bringing a potato gun into your office and firing it at coworkers without consequence — or setting off homemade bombs.

    Uncompahgre Valley Water Users Association’s supervisor, Aaron English, was found to have pulled similarly styled “pranks” while he worked for the Colorado organization. And not only was he not punished for any of his stints, he was promoted by his general manager, Steve Fletcher.

    Much of the so-called “pranks” came to light during a workers’ compensation disability hearing for former employee Bill Bailey.

    Bailey had been fired last May after he answered “How does one get promoted around here?” by retorting, “Apparently by blowing sh*t up.” English overheard the conversation, and Bailey was fired less than a week later for “insubordination.”

    Bailey later filed for workers’ comp and disability due to injuries he sustained while at work. The court needed to determine whether his disability was the association’s responsibility. It seemed like a pretty standard hearing — until the court got into just how Bailey had been injured.

    Turns out Bailey had been the victim of several of English’s “pranks,” which included:

    • putting his feces in employees’ lunch boxes (which English claimed was “okay” because he put it in plastic baggies first)
    • attempting to defecate on an employee working in a ditch below English
    • building a potato gun with company resources, and then firing it in the direction of employees working
    • constructing makeshift bombs out of accelerant — like acetylene — and glass milk jugs, and then hiding them throughout the property where they were most likely to explode (more on that later), and
    • rerouting water from Bailey’s service line so he’d receive complaints from customers and be blamed for poor work quality.

    English admitted to all of his behavior while on the stand, even after the judge reminded him of his Fifth Amendment rights (protecting a person from being compelled to be a witness against himself). So English kept providing details on his work exploits — like how he hid his makeshift bombs in trucks that would explode upon ignition. One force was so powerful, it reportedly buckled the hood of a vehicle.

    Other times English hid his bombs in brush that was to be burned, so when workers went to clear the area with torches the milk jugs would go off.

    It was one of these explosions that reportedly damaged Bailey’s hearing, making him eligible for disability work benefits, according to the ruling.

    For his part, Bailey lodged several complaints against the behavior, dating back to 2009. He was also seeking treatment for his anxiety, likely brought about by the fact that bombs were hidden throughout his workplace and he had to avoid his boss’ excrement.

    In court, the judge also found the comment that got Bailey fired for “insubordination” wasn’t nearly as bad as English’s behavior, so Bailey would’ve had no reason to believe he’d be disciplined for it.

    Therefore, the water association was responsible for Bailey’s termination and on the hook for his disability pay, the court ruled.

    But by the end of Fletcher and English’s testimonies, barely anyone was paying attention to the point of the case.

    Fletcher’s testimony revealed how English’s behavior was allowed to go on, as the general manager didn’t find these jokes to be fireable offenses. This was just a part of the work culture, he claimed. He did, however, issue English a verbal warning to stop building bombs after several complaints were lodged and Bailey lost his hearing. But according to Bailey, the behavior didn’t stop.

    After the ruling, Fletcher said the court order was entirely one-sided and sought to paint the association in a poor light. Much of the order consisted of his and English’s testimonies.

    Both English and Fletcher resigned after the story took hit media outlets.

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  • DISABILITIES: TOUT THEM, OR HIDE THEM?

    AUTHOR: // CATEGORY: disability, Featured

    123RF Stock Photo

    Should a person with a disability include that on his/her resume (CV)?

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