LIEB BLOG

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Showing posts with label disability discrimination. Show all posts
Showing posts with label disability discrimination. Show all posts

Monday, January 10, 2022

New Workers' Compensation Law Allows for Attorneys' Fees

A new law seeks to reduce bias against injured workers in low-income brackets who cannot afford attorneys' fees.


New York's Workers’ Compensation law has been amended to include awarding attorneys’ fees for the following services:

  • 1/3rd of one week’s compensation for awards made directing the continuation of weekly compensation benefits for temporary total or partial disability;

  • 15% of the increased compensation when an award is made that increases the amount of compensation awarded or paid for a previous period(s) of temporary total or partial disability;

  • 15% of the compensation due in excess of the employers/carrier’s previous payments when an award is made for loss of use or permanent facial disfigurement;

  • 15% of the compensation due in excess of the employer or carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for permanent total disability or permanent partial disability;

  • 15% of the compensation due in excess of the employer/carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for death benefits; and

  • 15% of any benefits to be paid by the employers/carrier when an award is made under a waiver agreement.


The law became effective on 12/31/2021. 


Thursday, December 16, 2021

Americans with Disabilities Act Update: COVID-19 Considered a Disability for Purposes of Employment Discrimination

Thousands of Americans who have contracted COVID-19 may now qualify for disability under the Americans with Disabilities Act (ADA).


The Equal Employment Opportunity Commission (EEOC) passed new ADA guidelines to cover individuals with COVID-19 disabilities.


There are three ways a person can be deemed to have a COVID-19 disability under the ADA.

  1. A person with COVID-19 has an Actual Disability if the person’s medical condition or any of its symptoms is a "physical or mental" impairment that "substantially limits one or more major life activities." An individualized assessment is [required] to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination.
  2. A person who has or had COVID-19 can be an individual with a Record of a Disability if the person has "a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on an individualized assessment.”
  3. A person is Regarded as an Individual with a Disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has [COVID-19].”

In some cases, regardless of whether an individual’s initial case of COVID-19, itself, constitutes an actual disability because the case-by-case evaluation does not result in such a determination, that individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA.


If you meet either the “actual" or “record of” definition of disability you may be eligible for a reasonable accommodation at the workplace.


It is unlawful for employers to discriminate against employees or applicants based on a COVID-19 disability. Further, it is unlawful for employers to refuse to provide reasonable accommodation for those with COVID-19 disabilities if it does not place an undue hardship on the employer.


If you believe you’ve been the target of COVID-19 Disability Discrimination by an employer then you should seek the counsel of an attorney to determine the extent of your injuries. Your attorney can assist you filing a legal complaint with EEOC. If the employer is found to have acted unlawful according to the ADA, then your attorney can leverage your position so you are awarded compensatory damages, penal damages, penalties, and attorney fees.


Also, don't forget that state and local anti-discrimination laws have lower standards to qualify for protection so even if you don't qualify under the ADA, check your state, county, city, or town / village. 



Tuesday, August 25, 2020

Discrimination: Disabled's Right to Reasonable Accommodation to Eliminate Possible Exposure to COVID in the Workplace

A must read for all employers, both public and private, is the US Equal Employment Opportunity Commission's publication "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."

In plain English, if you have an employee with a pre-existing disability that either "puts her at greater risk during this pandemic" or, if such disability will be "exacerbated by the pandemic," and such employee requests a reasonable accommodation, then, you better either grant that request or engage in the "interactive process" to avoid getting sued.  

Be warned - the lawsuits are coming.


Thursday, August 13, 2020

HIV Patients Have Right to Cosmetic Surgery

The Federal Courts, in the Southern District of New York, awarded $125,000 to each individual who was denied cosmetic surgery due to their HIV-Positive status in interesting discrimination case. 

The case was brought under Title III of the Americans with Disabilities Act of 1990 (ADA) and the New York City Human Rights Law.

The penalty was based upon the HIV-Positive individuals' traumatic experiences, resulting in significant feelings of humiliation, shock, and worthlessness, as well as anxiety, stress, sleeplessness, and feelings of stigma and humiliation.

Again, $125,000 was awarded to each victim of discrimination who experienced emotional distress.

What do you think the award should have been?

  1. Nothing
  2. $20,000
  3. $125,000
  4. $1,000,000

Thursday, July 02, 2020

5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate

A recent New York State, Appellate Division case (Hosking v. Memorial Sloan-Kettering Cancer Center) serves as a reminder to employers and landlords that they may be exposed to disability discrimination lawsuits if they do not engage in an "interactive process" prior to denying a reasonable accommodation request, even if the ultimate decision denying the accommodation is legal. As detailed in the above referenced case, a court will not even reach the step of determining whether the denial of the accommodation is legal if the employer/landlord fails to follow the proper process in evaluating the request.

To mitigate exposure to disability discrimination lawsuits (for failure to accommodate), employers/landlords should follow these steps:

1) Disseminate Policy: Employers/landlords should inform employees/tenants, in writing, that reasonable accommodations are provided to qualified individuals and of the process to request a reasonable accommodation. Employers should include its reasonable accommodation policy in its employee handbook and landlords should include its reasonable accommodation policy in its application and/or make the policy available onsite.

2) Provide Reasonable Accommodation Request Form: Employers/landlords should prepare a form for individuals requesting an accommodation to complete. Questions on the request form should include:
  • General information of employee/tenant (i.e. name, contact information)
  • Nature of the disability
  • Requested/suggested accommodation(s) 
3) Review and Discuss with Employee/Tenant:
  • Review accommodation request
  • Request supporting medical documentation if necessary from employee/tenant to properly evaluate request 
  • Discuss effectiveness/feasibility/reasonableness of potential accommodation(s) with employee/tenant  
4) Analyze Whether an Undue Hardship Exists: Employers/landlords are not required to provide an accommodation if providing such accommodation would present an undue hardship. Elements an employer/landlord should analyze include:
  • Cost of the accommodation
  • Resources of the employer/landlord
  • Impact on operation of workplace/facility
5) Draft Determination Letter and Submit to Employee/Tenant: The letter should include:
  • A summary of the interactive process
  • The accommodation provided
  • If an accommodation is denied, provide a detailed explanation (e.g. absence of an accommodation that would permit employee to perform essential functions of position, undue hardship)
  • If accommodation request is granted, a date to follow up on effectiveness of accommodation