Mental disabilities under the ADA: a management rights approach

While numerous sources have focused on employee rights and employer obligations under the Americans with Disabilities Act, this article will emphasize employer rights with respect to mental disabilities under the ADA. Specifically, it addresses the ADA's definition of "mental disability," the right of employers to screen job applicants in spite of the ADA, the conditions under which an employer may require an employee to undergo a "fitness for duty" examination, and the limits of the duty to "reasonably accommodate" an employee with a mental disability.     

EEOC guidance on psychiatric disabilities: many problems, few workable solutions

The EEOC recently issued "Enforcement Guidance" on psychiatric disabilities under the Americans with Disabilities Act. Although the Guidance provides clarification of a few issues involving mental disabilities under the ADA, in most respects the Guidance is problematic. For example, the Guidance suggests that the inability to get along with a supervisor or coworkers may constitute a disability under the ADA, that an employer may have to "accommodate" a disabled employee's misconduct, that an employer cannot require an employee to follow doctor's orders as a condition of employment, and that an employer may be obligated to modify work rules and procedures to accommodate a mentally disabled employee but is prohibited from explaining to coworkers why it is making such modifications. As the EEOC's Guidance exceeds or conflicts with the ADA in some respects and is largely unworkable in many respects, it remains to be seen how many courts will actually follow it.     

Disability,Reasonable Accommodation and the Employer's Obligations: Nano Nagle School v Daly

The duty on employers to provide reasonable accommodation is a well-established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job. The case also addressed the question of what procedures should be followed by an employer when considering the provision of reasonable accommodation, as well as the need for courts to justify awards of compensation. The issues in Irish law were intertwined with obligations arising from EU and international law instruments. Therefore, the decision is pertinent for other jurisdictions confronting similar challenges.     

Employer remedies for work stoppages that violate no-strike provisions

An employer faced with a work stoppage that violates a contractual no-strike provision has several alternatives: the employer can seek an injunction against the strike, discipline employees involved in the strike, or attempt to recover damages for violations of the collective bargaining agreement. Each of these remedies, however, presents practical problems in terms of employer-employee relations as well as legal questions regarding the extent of relief available. In the following article, the author examines the remedies available to an employer when employees engage in activity that violates a no-strike provision. He also examines the impact of recent cases on an employer's ability to enforce a no-strike pledge.     

Nondiscrimination on the basis of disability in state and local government services--Department of Justice. Final rule

This rule implements subtitle A of title II of the Americans with Disabilities Act, Public Law 101-336, which prohibits discrimination on the basis of disability by public entities. Subtitle A protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. It extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of State and local governments, including those that do not receive Federal financial assistance, and incorporates specific prohibitions of discrimination on the basis of disability from titles I, III, and V of the Americans with Disabilities Act. This rule, therefore, adopts the general prohibitions of discrimination established under section 504, as well as the requirements for making programs accessible to individuals with disabilities and for providing equally effective communications. It also sets forth standards for what constitutes discrimination on the basis of mental or physical disability, provides a definition of disability and qualified individual with a disability, and establishes a complaint mechanism for resolving allegations of discrimination.     

Cumulative injury or disease claims: an attempt to define employers' liability for workers' compensation

The workers' compensation systems of several states have been expanded in recent years to include injuries and diseases caused by cumulative injury and occupational stress. This expansion has placed a financial burden on the respective systems, on employers, and on consumers, who ultimately must pay the cost of claims through higher priced products or services. This expansion may not be justified from a social perspective, however; extant medical and sociological evidence is not conclusive as to whether occupational-stress injuries or diseases--such as coronary heart disease, hypertension, stroke, and neuropsychiatric illness--are the direct result of stressful work environments. Using the California workers' compensation system as a model, the authors submit that the underlying premises of liability governing the expanded systems should be reassessed based (1) on economic factors, specifically, the increasing costs of workers' compensation; (2) on the capacity of the system to process an ever-increasing number of claims; and (3) on the principle on which workers' compensation systems were established, that of equity between the employer and the employee. On the basis of these three factors, the authors evaluated three legislative approaches to restructuring the expanded system: presumption of compensability, apportionment of liability, and threshold of compensability. The first recognizes that although certain health problems are related to the workplace, the degree of causation is difficult to prove; under this approach, therefore, causation is presumed, and injury compensated, for all diseases and injuries that the system defines as work related. The second holds that where a causal relationship between the work and the injury can be proved, the employer nevertheless should be responsible only for that portion of the disability actually caused by the workplace. The third directs that the injured employee be compensated only when a direct causal link between the job and the injury or disease can be proved. The authors recommend that legislators implement this third alternative. For one reason, it is feasible economically; for a second, it would not burden the system or increase litigation; for a third, it is equitable to both employees and employers.     

Genetic Testing and the Future of Disability Insurance: Ethics, Law & Policy

Predictive genetic testing poses fundamental questions for disability insurance, a crucial resource funding basic needs when disability prevents income from work. This article, from an NIH-funded project, presents the first indepth analysis of the challenging issues: Should disability insurers be permitted to consider genetics and exclude predicted disability? May disabilities with a recognized genetic basis be excluded from coverage as pre-existing conditions? How can we assure that private insurers writing individual and group policies, employers, and public insurers deal competently and appropriately with genetic testing?     

Employer comparable contributions to health savings accounts under section 4980G. Final regulations

This document contains final regulations providing guidance on employer comparable contributions to Health Savings Accounts (HSAs) under section 4980G in instances where an employee has not established an HSA by December 31st and in instances where an employer accelerates contributions for the calendar year for employees who have incurred qualified medical expenses. These final regulations affect employers that contribute to employees' HSAs and their employees.     

Using decision science to gain insight into ethical issues: an example involving thresholds in workers' compensation.

Systematically analyzing and comparing the ethical dimensions of policy-decision alternatives is remarkably difficult. The ethical implications of a set of decision alternatives, as well as the ranking of that set, are subject to any number of quantitative and qualitative variables, not the least of which is differing individual interpretation. In spite of this, decision science offers a consistent, transparent framework from which to analyze the ethical components and implications of policy decisions. Workers' Compensation insurance programs are state-governed systems of insurance in which workers, in exchange for giving up the right to sue their employer and their coemployees, receive some compensation if they are injured on the job, without regard as to who was at fault. Importantly, Workers' Compensation does not compensate workers for all losses. Thus, injured workers often sue those who provide goods and services to their employer's production system. Different states set different thresholds relating to who can be brought into such a lawsuit and under what conditions a sued means-of-production entity can, in turn, bring the injured party's employer into the suit as a third-party defendant. Forensic engineers are often involved in such lawsuits to evaluate whether or not a given component of a production system is or is not defective. Using Workers' Compensation as an example, this paper explores the methodology and the difficulty of quantifying the ethical implications of policy decisions by examining the concept of thresholding a policy variable. Thresholding will be defined and the ethical effect on the various parties of varying a policy threshold will be discussed.     

Electronic personhood for artificial intelligence in the workplace

There are several legal and ethical problems associated with the far-reaching integration of man with Artificial Intelligence (AI) within the framework of algorithmic management. One of these problems is the question of the legal subjectivity of the parties to a contractual obligation within the framework of crowdworking, which includes the service provider, the Internet platform with AI, and the applicant's client. Crowdworking is an excellent example of a laboratory of interdependence and collaboration between humans and artificial intelligence as part of the algorithmic management process. Referring to the example of crowdworking platforms, we should ask whether, in the face of the rapid development of AI and algorithmic management, AI can be an employer equipped with electronic personhood? What characteristics does a work environment in which AI and algorithmic governance mechanisms play a dominant role? What kind of ethical implications are associated with the practical application of the concept of electronic subjectivity of AI in employment relations? This paper analyses the legal and ethical implications of electronic AI subjectivity in the work environment. The legal construction of electronic personhood is examined. The legal entity that uses AI, which manages the work process through algorithmic subordination, bears the risks resulting from such use (economic, personal, technical, and social) and full material responsibility (individual liability regime with the application of the presumption of guilt rule) in case of damage to an employee. Liability provisions can be complemented by a mandatory insurance scheme for AI users and a compensation fund that can offer support when none of the insurance policies covers the risk. A compensation fund can be paid for by the manufacturer, owner, user, or trainer of the AI and can compensate all those who suffer damage as a result of its operations. This is the direction proposed by the European Parliament, which has progressively called for robots to be given an electronic personality. The personalistic concept of work excludes the possibility of AI becoming a legal entity. Alongside legal arguments, ethical questions are of fundamental importance. The final part of the article presents the ethical implications of AI as an employer endowed with a legal entity (electronic personhood).     

Anatomy of an ADA case. Chatoff v. City of New York

This article addresses plaintiff and defense strategies in the context of an ADA case and is intended to serve as a ready reference to employer's counsel when faced with ADA litigation. In an ADA case, it is essential that counsel humanize the employer by keeping the "Our Business Supports Diversity" theme before the trier of facts at all times. This theme should be accompanied by the proposition that plaintiff's demands are not reasonable because they impose an undue burden on the employer or a risk to the safety of the employee or others in the workplace. It is also crucial for defense counsel to become familiar with the plaintiff's attorney's strategic considerations. ADA litigation strategy is illustrated by reference to Chatoff v. City of New York, a landmark ADA case instituted on behalf of the approximately 200,000 hearing-impaired residents of the City of New York, demanding equal and direct access to Emergency 911 services.     

Claimant identification pilot projects. Final rules

We are revising our regulations that pertain to the processing of initial claims for disability benefits under title II (Social Security Disability Insurance) and title XVI (Supplemental Security Income) of the Social Security Act (the Act). We will be conducting pilot projects wherein we will request photographic identification from individuals filing for title II and title XVI disability and blindness benefits in specified geographic areas covered by the pilot projects. In addition, we will require individuals to allow us to take their photograph and we will make these photographs a part of the claims folder. We will permit an exception to the photograph requirement when an individual has a sincere religious objection. This process will strengthen the integrity of the disability claims process by helping to ensure that the individual filing the application is the same individual examined by the consultative examination (CE) physician.     

The Human Rights Review Tribunal and the rights of health and disability consumers in New Zealand

In New Zealand where there is a statutory bar on the right to sue for compensatory damages arising out of personal injury, and therefore injury arising out of negligent health care, the Human Rights Review Tribunal, in certain circumstances, provides relief for people who are aggrieved by the care they have received from a provider of a health or disability service. That relief may range from a declaration that the provider has breached the Code of Health and Disability Services Consumers' Rights to awards of compensatory and exemplary damages. The article explores the use of this tribunal by the Director of Proceedings of the Office of the Health and Disability Commissioner in holding providers of health and disability services accountable and obtaining relief for consumers and their families.     

Cross-Jurisdictional Differences in Punitive Public Attitudes?

With more information the Dutch public becomes less punitive. However, recent studies showed a remaining punitiveness gap between the general public and judges, despite the provision of detailed case information. Moreover, it has been demonstrated that the Dutch public overestimates the courts’ punitiveness. This is not in line with studies abroad. These contradictions raise questions, on the one hand, about the possibility of actual cross jurisdictional differences, on the other hand, about methodological explanations. A limited set of survey questions from studies abroad was therefore replicated with a new Dutch public sample. It focused on questions and methodologies that produced findings most directly at odds with earlier studies in the Netherlands. Using the same measurement approach, findings abroad were reproduced with the new Dutch sample for perceptions of punitiveness of judges and the courts. Thus using a different methodology new findings support conclusions that are opposite to our earlier conclusions. On the other hand, also with methodologies that have produced opposite conclusions abroad, the Dutch public does remain more punitive than judges. In the discussion it is argued that some of the remaining contradictions may be perfectly reconcilable, as long as conclusions are stated in a qualified manner.     

Disability, disparate impact, and class actions

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act (ADA), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law. Moreover, the class action device has been virtually nonexistent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions in which individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts on challenging race- and sex-based discrimination. Future workplace policies should plan for "all jobs to include some physical activity" unrelated to job qualifications in order to "dissuade unhealthy people from coming to work at Wal-Mart."     

Medicaid program; coverage of personal care services--HCFA. Final rule

This final rule specifies the revised requirements for Medicaid coverage of personal care services furnished in a home or other location as an optional benefit, effective for services furnished on or after October 1, 1994. In particular, this final rule specifies that personal care services may be furnished in a home or other location by any individual who is qualified to do so. This rule conforms the Medicaid regulations to the provisions of section 13601(a)(5) of the Omnibus Budget Reconciliation Act of 1993, which added section 1905(a)(24) to the Social Security Act. Additionally, we are making two minor changes to the Medicaid regulations concerning home health services.     

Educational saliency and careers in criminal justice: The case of Louisiana

While there is little consensus as to the exact form and structure of an academic criminal justice program, the traditional model of higher education, with its emphasis on qualified and productive faculty, has gained popular acceptance in the past decade. Concurrently, graduates of criminal justice programs have often found that prospective employers do not value their degrees. This article explores the relationships between student evaluations of their educational experiences, the structural characteristics identified as essential to an educational program, and the mechanisms used by ex-students to reduce dissonance caused by employer rejection or a poor job market.In 1980 a total of 411 recent graduates of eight criminal justice programs in Louisiana responded to a questionnaire designed to measure their attitudes toward and evaluations of their educations. Several key structural variables frequently associated with quality higher education failed to predict student evaluations. Two exceptions were ration of senior faculty and ratio of ex-police as faculty, and the effects of these variables on student evaluations were inverse. Overall, the best predictor of the saliency of one's educational experiences was the student's evaluation of the current job market in criminal justice. This variable was followed, in descending order by sex, ratio of faculty with senior rank, years since graduation, type of degree granted, and ratio of ex-police as faculty.     

COBRA's draconian penalties.

In June 1987 the Internal Revenue Service issued proposed regulations clarifying the penalties to be imposed for noncompliance with the Consolidated Omnibus Budget Reconciliation Act (COBRA). These regulations met with ardent objections from employers because of the scope of the sanctions. Not only does a noncomplying employer lose its tax deduction for health plan contributions, for example, but so does any successor employer or member of a multiemployer plan to which the offending employer belongs. The IRS has also been criticized for neglecting to differentiate in the regulations between significant and minor violations and for neglecting to define what it means when it refers to a violation being corrected. In the following article the author explores these problems and their effect on employers as well as Congress's recent efforts to ease the COBRA penalty burden.     

Medicare program; electronic submission of cost reports. Final rule

This final rule amends regulation by requiring that, for cost reporting periods ending on or after December 31, 2004, all hospices, organ procurement organizations, rural health clinics, Federally qualified health centers, community mental health centers, and end-stage renal disease facilities must submit cost reports currently required under the Medicare regulations in a standardized electronic format. This rule also allows a delay or waiver of this requirement when implementation would result in financial hardship for a provider. The provisions of this rule allow for more accurate preparation and more efficient processing of cost reports.