The Real Problem with Brandon McGee/Safe Work Environment Act Report

Community Update

This column appears in the January 22 – 29 edition of the Hartford News… There will be no Hartford News column next week, due to the Hartford Arts and Heritage special edition of the paper. The February 5 – 12 edition will include an analysis of President Obama’s State of the Union address… While Rep. Brandon McGee’s decision to use a parking space reserved for disabled individuals is indicative of the arrogance demonstrated by him and other Black lawmakers at the State Capitol, I’m more ticked off about the fact that McGee’s public policy agenda does not address poverty, racial wage/wealth disparity, Black/Latino unemployment or police containment of low income communities of color.

Last month during an appearance on the WFSB Face the State program, McGee touted the smokescreen of hiring more Black/Latino officers and implementing community policing as ‘solutions’ to police violence in urban neighborhoods. McGee said nothing about the need to dismantle the rigged grand jury process or the zero prosecutions of killer cops by the Obama Justice Department. Like his colleagues Senators Gary Winfield and Eric Coleman, both members of the Judiciary Committee (Coleman is Judiciary co-chair), McGee does not support the Community Party’s Trayvon Martin Act, which has provisions that would include community residents and lawmakers in the process of holding the police accountable. Our bill would also provide whistleblower protection for officers who report corruption/misconduct. McGee is a typical corporatist, elitist Democrat. We need a third party movement that will represent the interests of the working class, the poor and low income communities of color…

House Speaker Brendan Sharkey pushed for the return of tolls to Connecticut during his appearance on Fox CT’s The Real Story last Sunday. Tolls are just another tax on the working class and the poor who already pay more in taxes than the wealthy, according to a report by the Connecticut Department of Revenue Services. http://wnpr.org/post/connecticuts-wealthiest-pay-smallest-share-their-income-taxes A publicly owned bank would generate revenue for the state, without taxing residents. https://www.youtube.com/watch?v=KX8pcADnsEs

REAL Protection Against Workplace Bullying: Safe Work Environment Act

CP’s Safe Work Environment Act would provide workers with more protection against abusive workplace conduct than the Healthy Workplace Bill, which is also being introduced during the 2015 legislative session. Our bill would remove legal barriers that people currently face when they file a lawsuit against their employer. SWA eliminates the HWB requirement that an employee must prove malice and intent by an employer, which is basically impossible. Our language would also remove the HWB stipulation that an employee must provide proof of damage to their physical/psychological health. The federal employment discrimination law does not include either of the HWB provisions, which provide massive loopholes for abusive employers. We will also incorporate language from the Nevada workplace bullying bill (see below), which eliminates the burden of having to prove workplace bullying based on race or gender discrimination. We also want lawmakers to create a workplace bullying advisory board, which would solicit and implement input from public employees when they recommend future legislation. One bill will not stop workplace bullying, which is a constantly evolving issue. Legislation must evolve with it! The creation of a workplace bullying advisory board will ensure that this issue remains active at the State Capitol EVERY YEAR.

In the coming months we’ll share information on the legal aspects of workplace bullying. Workers must educate themselves about the law in order to empower themselves. A study found that 15% of total adult suicides in the U.S.are related to abusive workplace conduct, which the Department of Health and Human Services says is the equivalent of domestic violence. http://www.weeklystandard.com/blogs/hhs-workplace-bullying-domestic-violence_764508.html
This week we’ll share a report from the Undercover Lawyer website (http://www.undercoverlawyer.com/) on how to use the Americans with Disabilities Act (ADA) to request job accommodations from your employer.

How To Request Job Accommodations From Your Boss By Using the ADA

September 23, 2010 By Mary

Mary’s ButterfliesBy Mary, The Undercover HR Director (“OnYourSide” in the Forums)

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified employees with disabilities. For all the kicking and screaming by employers about making accommodations, you’d think accommodations cost them millions of dollars – but it’s not true! Accommodations for people with disabilities are usually extremely low or even no cost. The Job Accommodation Network (JAN) conducted a study recently that showed as many as 56 percent of workplace accommodations cost NOTHING. Of those accommodations that did have a cost, the average one-time cost was $600. What other kind of investment could an employer make in their employees that would buy them so much goodwill?

What conditions are covered as disabilities?

The ADA does not contain a list of specific medical conditions that constitute disabilities. Rather, whether an employee has a disability is considered on a case by case basis, based on how the employee is affected by his or her medical condition. Thus, two employees who have Multiple Sclerosis may be affected totally differently, and one may be considered disabled because their disease is in an exacerbation phase, while the other may not. These two employees may require totally different accommodations as a result of their disabilities because they’re each affected differently by their disease, even though they have the same disease.

How does the ADA define disability?

A person has a disability if s/he “has a physical or mental impairment that substantially limits one or more major life activities.” The two factors considered include: 1. Whether the employee has an impairment, and 2. Whether the employee’s impairment substantially limits one or more major life activities. In addition, a person can meet the ADA’s definition of disability by having “a record of” or “being regarded as” having an impairment or disability.

What special language do I need to use to request an accommodation?

None. According to the Americans with Disabilities Act, an employee need not mention the ADA or use the phrase “reasonable accommodation” in order to request an accommodation. The employee need only use “plain English”. The case that established this was Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (Or. 1994) (“statute does not require the plaintiff to speak any magic words…The employee need not mention the ADA or even the term ‘accommodation.’”) Several other cases in subsequent years mirrored the Schmidt decision, but Schmidt was the first. So – the employee need only say, for example, “The smell and the grease from the cooking bacon is making me physically ill” – and the employer has thus been notified that the employee needs an accommodation. The burden then shifts to the employer to begin the “interactive process” to find a reasonable accommodation that will work for the employee.

What is the “interactive process”?

Contrary to what many employers believe, the interactive process does not mean that they get to automatically dictate the accommodation. But neither does the employee. “Interactive” means talking to one another. The employer should begin by asking the employee what type of accommodation might work best. Frequently, the employee can articulate a fast and inexpensive accommodation. For example, for an employee who has a mobility disability, perhaps s/he requires more time to return to his or her work area from breaks before being considered tardy. The employee may offer the employer a number of possible accommodations and the employer may choose one of them. The employee may suggest that both parties go to a website together such as http://www.askjan.org to explore possible accommodations. More about http://www.askjan.org later. The point is, the employer should TALK with the employee about what accommodations might be helpful, rather than dictating TO the employee what MUST be done. If the employer just takes some action, it will be perceived as retaliation against the employee.

Once an accommodation is in place, can it be changed?

Yes. In fact, the ADA requires that accommodations be monitored for effectiveness. Once an accommodation is in place, the employer should be checking back with the employee periodically to make sure that the employee is still able to perform the essential functions of his/her job with the accommodation, whether the employee continues to require the accommodation, or whether the accommodation needs to be changed or dropped.

Want more information?

A terrific resource exists for both employees and employers, in a website called http://www.askjan.org. This website is sponsored by the Job Accommodation Network, and is an arm of the Department of Labor. The website has a searchable database of recommended accommodations for various disabilities, access to training materials, links to the law itself, the ADA’s Compliance Manual, and information on filing an EEOC complaint. It’s kind of the one-stop-shopping resource for anyone with disabilities.

Follow CP on Twitter for state, national and global headlines and updates on the status of our Trayvon Martin and Safe Work Environment Acts, including action alerts. https://twitter.com/CommunityParty1 Listen to WQTQ 89.9 FM for CP’s public service announcements on our racial justice initiatives. https://www.facebook.com/wqtqfm Contact us at 860-206-8879 or info.community.party@gmail.com

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