Social Security Disability and the Americans With Disabilities Act

August 21, 2015 by

social security disabilitySocial Security disability and the Americans With Disabilities Act. The Americans With Disabilities Act (ADA) requires many employers to provide reasonable accommodations for employees with disabilities. It also prohibits employers from discriminating against qualified individuals with disabilities. Many people are familiar with the basic provisions of the ADA, without actually understanding how it defines the term “disability.”

One likely source of confusion is the Social Security Disability program, which has a very different standard for determining who is disabled. Social Security Disability provides benefits for individuals who have worked in the past, but are no longer able to work because of disabilities. Anyone who has applied for Social Security Disability benefits can tell you that the Social Security Administration has extremely strict standards for qualification.

What many people don’t realize is that not all government agencies use the same standard for what constitutes a disability – and the ADA’s standards for a disability are far less strict than those of the Social Security Administration. In order to qualify for Social Security Disability benefits, an applicant must demonstrate that their disability is so severe that it prevents them from working altogether. The ADA, on the other hand, applies to people who are capable of working, so its definition is far broader.

The Language of the Americans With Disabilities Act

Under Section 12102 the ADA, the term “disability” means, with respect to an individual:

  • A physical or mental impairment that substantially limits one or more of an individual’s “major life activities”;
  • A record of such an impairment; or
  • Being regarded as having such an impairment.

The expression “major life activities” includes a wide variety of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, thinking and working.

It can also refer to what the ADA calls “the operation of a major bodily function.” Section 12102 includes the following examples: “Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

It is important to note that, as stated in the third bullet above, an individual can be protected by the ADA even if he or she does not have a disability that meets these requirements. The ADA prohibits discrimination based on the belief that an individual has a disability. This means that, for example, if an employer incorrectly assumes that an applicant for a typist position is HIV-positive, and refuses to hire him or her on that basis, this would violate the ADA, regardless of whether the employee actually is HIV-positive. If the applicant was regarded as having a disability, and was denied the job on that basis, then it does not matter whether the employer’s assumption was correct.

Violations of the Americans With Disabilities Act

If an employer has discriminated against you on the basis of a disability (or perceived disability), or is refusing to provide you with reasonable accommodations, you may have a valid ADA claim.

You may also have recourse at the state level. California has its own laws prohibiting discrimination, which are some of the strictest in the country. If you live or work in the Santa Rosa, Petaluma, Ukiah or Lakeport area, contact our experienced labor law attorneys at Beck Law P.C.,  to schedule a consultation and learn more about your legal options.

Filed Under: Americans With Disabilities Act Tagged With: , , , , , , ,

Is It Discriminatory to Fire an Employee for Substance Abuse?

May 20, 2015 by

fire and employee for substance abuseIs it discriminatory to fire an employee for substance abuse? Most employers and employees would probably agree that it’s reasonable to fire an employee for getting drunk on the job. But what about firing an employee because you learned that she belongs to Alcoholics Anonymous?

Under both the Americans With Disabilities Act (ADA), and California’s Fair Employment and Housing Act (FEHA), the latter would be considered a form of employment discrimination. It is discriminatory to fire an employee (or subject an employee to any adverse employment action) because of the employee’s alcoholism and/or drug addiction. However – and this is a very important “however” – these statutes only apply if the employee is in recovery. They do not apply if the employee is currently abusing drugs and/or alcohol.

Past Substance Abuse vs. Current Substance Abuse

Generally speaking, these statutes prohibit employment discrimination that is based on an employee’s past substance abuse. This may sound simple and straightforward – but like so many aspects of the law, it can get rather complicated.

For example, can an employee be fired for legally using medical marijuana? What if an employee fails an employer’s drug test, and then applies for a position later? What if an employer finds out that an employee used drugs a few weeks ago – does that count as current substance abuse? Or could the employee argue that he’s now in recovery, and he was fired for his past substance abuse? These are the kinds of issues that federal courts, and California courts, have been trying to resolve for years.

Medical Marijuana: While California allows the use of medical marijuana, the language of the FEHA makes it clear that it does not prohibit employers from discriminating on the basis of medical marijuana use. The ADA does not protect the use of medical marijuana, either.

Discrimination Based on Previous Failure of an Employer’s Drug Test: The Court of Appeals for the Ninth Circuit (which includes California) ruled on this issue in the case of Lopez vs. Pacific Maritime Association. The case involved a man who applied for a job in 1997, and was given a drug test. He failed the test, and wasn’t hired. In 2004, after becoming sober, the man applied for a job with the same employer, and was rejected because of the drug test he failed in 1997. The employer had a “one strike” rule, meaning that it refused to hire anyone who had ever failed a company drug test.

The Court ruled that the employer was within its rights to reject the applicant. The ruling held that the discrimination was based on his failure of the drug test, not his drug addiction itself.

How recent “current” drug use can be: The Equal Employment Opportunity Commission has clarified that the ADA has no specific rule regarding how much time must elapse before an employee’s substance abuse can be considered “past” substance abuse. These matters must be decided on a case by case basis. However, substance abuse that has taken place less than a month ago is generally considered to be current.

Ensuring Compliance

If you are an employer, and you ask your employees if they have ever been treated for substance abuse, you may be violating both state and federal law. If you have any concerns that you may not be in full compliance with the ADA and the FEHA, you may wish to speak to an attorney. The employment and labor law attorneys at Beck Law P.C., in Santa Rosa, will be able to answer your questions. You can call or email our office today.

Filed Under: California Labor Law, Employee Rights Tagged With: , , ,

Workers’ Compensation Fraud for Employees Who Caused Their Accidents

April 27, 2015 by

workers' compensation fraudWorkers’ Compensation fraud. A memorable scene from the television series Shameless featured William H. Macy’s character – who was desperate for money, but too lazy to work for a living – taking a job just so that he could intentionally injure himself with a staple gun, and collect workers’ compensation benefits. The scene reflects a fear held by many employers about employees taking advantage of the workers’ compensation system. It also reflects a fear held by some employees who are injured on the job – a fear that they’ll be accused of abusing the system in such a manner.

A No-Fault System

In California, workers’ compensation is a no-fault system. This means that an employee can be compensated for an injury resulting from a work accident, even if the accident was the fault of the employee.

For example, let’s say a factory worker is carrying a heavy object improperly, and as a result, the employee accidentally drops the object on his or her foot. If the worker’s employer has workers’ compensation insurance, the injury will be covered. It will be considered irrelevant that the employee was at fault for the accident.

But what if the injury wasn’t an accident at all? If the employee intentionally caused the injury, then the situation will be treated quite differently. In this case, the employee would not only be considered ineligible for workers’ compensation benefits – he or she would be guilty of workers’ compensation fraud.

California Laws Prohibiting Workers’ Compensation Fraud

Under Section 1871.4 of the California Insurance Code, it is unlawful to “make or cause to be made a knowingly false or fraudulent material statement or material misrepresentation for the purpose of obtaining or denying any compensation.” This means that it is not only illegal for an employee to make a false statement in order to collect workers’ compensation – it is also illegal for an employer (or anyone else) to make a false statement in order to prevent someone from collecting workers’ compensation.

The California Penal Code also prohibits workers’ compensation fraud. Under Section 550, it is illegal to:

  • Knowingly make or cause to be made any false or fraudulent claims for payment of a health care benefit.
  • Knowingly submit a claim for a health care benefit that was not used by, or on behalf of, the client.
  • Knowingly present multiple claims for payment of the same health care benefit with the intent to defraud.
  • Knowingly present for payment any undercharges for health care benefits on behalf of a specific claimant – unless overcharges for the same client are present for reconciliation at the same time.

The Code specifically states that for the offenses described above, the term “health care benefit” includes workers’ compensation benefits.

If You Have Questions

As you can see, both employees and employers can face legal penalties if they are found to have committed workers’ compensation fraud. If you have any concerns about whether you are handling a workers’ compensation claim properly, you may wish to consult an attorney. If you are located in the Santa Rosa area, you can call or email the employment and labor law attorneys at Beck Law P.C., who can answer your legal questions.

Filed Under: Employee Rights Tagged With: ,

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