Source: Matthew Brock, The Conversation, September 28, 2018
On Sept. 20, the U.S. Department of Education released a new framework to “rethink” how the department oversees special education services for students with disabilities.
As part of this framework, the department plans to provide states with “flexibility” and to “acknowledge” that states are “in the best position to determine implementation of their programs.”
This flexibility relates to how states satisfy the provisions in the Individuals with Disabilities Education Act – a federal civil rights law known as IDEA meant to ensure all students with disabilities receive a free and appropriate education.
In my opinion, the assumption that states are in the best position to determine implementation of their programs related to the IDEA law is a faulty one. So is the notion that relaxing enforcement of these provisions would have a positive impact on students.
Source: John O’Neil, Bloomberg, August 21, 2018
The U.S. ordered the state to remove a cap that wrongly deprived hundreds of thousands of kids. Now the question is who will pay.
Source: Maureen Minehan, Employment Alert, Vol. 35 No. 14, July 11, 2018
Is terminating an employee with depression a recipe for trouble? Do you need to go “above and beyond” to avoid any appearance of discrimination? …. While the Greenleaf case is just beginning its journey through the courts, it offers employers a reminder that depression can be a covered disability under the Americans with Disabilities Act (ADA) and the many state laws that mirror it. This means employers are permitted to terminate employees with depression if they aren’t meeting performance standards, but only if the proper steps have been taken first….
Source: Charles E. Mitchell, Employee Relations Law Journal, Vol. 43, No. 3, Winter 2017
Congress created the Americans with Disabilities Act to eliminate discrimination against citizens with disabilities. The Act covered employment, housing, accommodation, voting, and more. The U.S. Supreme Court issued decisions that weakened employment provisions in the Act. Congress amended the Act to negate those decisions. The author of this article provides an analysis of court and administrative decisions following the amendments, which reveals that private litigation and administrative rulings by federal agencies show an increase in favorable rulings for victims of employment disability discrimination.
Source: Nathaniel M. Glasser, Employee Benefit Plan Review, Vol. 72 no. 2, October 2017
In an important recent decision, the Massachusetts Supreme Judicial Court recently held that a qualifying patient who has been terminated from employment for testing positive for marijuana as a result of her lawful medical marijuana use may state a claim of disability discrimination under that state’s anti-discrimination statute. Much like a similar decision in Rhode Island, this holding has significant implications for employers that drug test for marijuana use because 29 states plus the District of Columbia have enacted legislation legalizing medical or recreational marijuana use, or both.
Source: Ashley Dejean, Mother Jones, August 8, 2017
Chris Wilson is 33 years old and has Down syndrome. For the last three years, he’s worked at Kandu Industries, a packaging and assembly factory in Janesville, Wisconsin. He usually makes between $2 and $3 an hour, depending on whether he is packing brackets used in playground equipment or packaging food.
…. Kandu Industries can pay Chris and roughly 150 other workers substantially below the federal minimum wage of $7.25 an hour because of a 1938 provision in the Fair Labor Standards Act that permits employers, who apply to the Department of Labor for a waiver, to pay lower wages to people with disabilities. According to the department, about 20 percent of people with disabilities participate in the workforce, and of that group, about 3 percent, or approximately 195,000 workers, are being paid subminimum wages. These workers typically make well below the minimum wage, sometimes as low as “pennies per hour,” according to the Department of Justice…..
Source: U.S. Census Bureau, Facts for Features, Release Number: CB17-FF.11, June 6, 2017
From the press release:
On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services.
This Facts for Features provides a demographic snapshot of the U.S. population with a disability and examines various services available to them. The statistics come from various Census Bureau censuses and surveys, covering differing periods of time.
Source: A Better Balance, June 2017
From the summary:
Walmart is proud of its heritage as a family-founded company. Ironically, while the Walton family touts its family values, Walmart’s absence control program punishes workers who need to be there for their own families. Walmart disciplines workers for occasional absences due to caring for sick or disabled family members and for needing to take time off for their own illnesses or disabilities. Although this system is supposed to be “neutral,” and punish all absences equally, along the lines of a “three strikes and you’re out” policy, in reality such a system is brutally unfair. It punishes workers for things they cannot control and disproportionately harms the most vulnerable workers.
Punishing workers for absences related to illness or disability is not only unfair, it’s often against the law. Based on our conversations with Walmart employees as well as survey results of over 1,000 current and former Walmart workers who have struggled due to Walmart’s absence control program, Walmart may regularly be violating the federal Family and Medical Leave Act (FMLA) by failing to give adequate notice to its employees about when absences might be protected by the FMLA and by giving its employees disciplinary points for taking time to care for themselves, their children, their spouses or their parents even though that time is covered by the FMLA.
Similarly, we allege that Walmart’s policies and practices of refusing to consider doctors’ notes and giving disciplinary points for disability-related absences is a violation of the Americans with Disabilities Act (ADA). The ADA protects workers with disabilities from being disciplined or fired because of their disabilities. It also requires employers to engage in a good faith interactive process to determine an appropriate accommodation for workers with disabilities. Unfortunately, as detailed in this report, this is too often not Walmart’s practice. Other federal, state and local laws such as pregnancy accommodation protections, and sick time laws, could also be at play. Walmart’s policies and practices are not in compliance with many of these laws.
Simply put: Giving a worker a disciplinary “point” for being absent due to a disability or for taking care of themselves or a loved one with a serious medical condition is not only unfair, in many instances, it runs afoul of federal, state and local law.
Source: Deborah A. Widiss, Indiana University Maurer School of Law, Indiana Legal Studies Research Paper No. 369, Last revised: April 25, 2017
From the abstract:
Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under the PDA. This Article fills that gap, updating analysis from an earlier article I wrote on this subject to incorporate the Court’s holding in Young and to discuss how lower courts are applying Young.
The PDA mandates that pregnant employees be treated “the same” as other employees “similar in their ability or inability to work.” Young established that employees who receive accommodations pursuant to the ADA or workers’ compensation laws may be used as comparators in PDA analysis, rejecting lower court decisions to the contrary. The Court stated that evidence that an employer routinely accommodates other health conditions but refuses to provide support for pregnancy is strong circumstantial evidence of discriminatory bias.
The ADAAA magnifies the importance of this holding; it also largely resolves the Young Court’s concern that the PDA not be interpreted to confer a “‘most-favored-nation’ status” on pregnant employees. Under the ADAAA and its implementing regulations, employers must provide reasonable accommodations for impairments that substantially limit an individual’s ability to lift, bend, walk, or stand, even on a temporary basis. Thus workplace accommodations for health conditions that cause limitations like those caused by pregnancy should now be commonplace (and many conditions associated with pregnancy may qualify as disabilities themselves). Robust enforcement of the PDA’s “same treatment” mandate does not create a danger that pregnant employees will be treated better than other employees; rather, it helps ensure that pregnant employees are not consistently treated less well than other employees.
Source: Labor Project for Working Families, AFL-CIO, SEIU, A Better Balance, and the Center for WorkLife Law at the University of California, Hastings College of the Law, 2016
…This manual provides shop stewards the tools they need to effectively represent pregnant workers. It provides practical tips for counseling them about critical workplace issues. It explains the laws and common contractual provisions that may assist pregnant women who have been discriminated against or who need reasonable accommodations to continue working while maintaining a healthy pregnancy. And it provides guidance on grieving contractual violations on behalf of pregnant workers. Last, it provides contact information for organizations that can provide free advice if you need more information.
The laws and contractual provisions discussed in this manual provide legal rights, but pregnant workers benefit from these protections only when they are enforced. It’s the job of the shop steward to empower workers and demand employer compliance. This manual is meant to guide you in educating pregnant workers and enforcing their hard-won rights….