Disabled Employees in Dangerous Jobs

Great Debates
1

High Court to Rule on Disabled in Risky Jobs

So on the one hand, a person should have the right to decide for themselves what level of risk they want to take. In this sense, disabled employees are no different than other employees, who sometimes take risky jobs. OTOH, an employer should perhaps be entitled to claim that from a moral perspective they are unwilling to cause the death or injury of someone, even if that person is willing to suffer it. In this sense, the situation would differ from a job that is inherently risky. I would incline slightly in the direction of the employee, but I’m wavering.

I have no idea what the law is - I’m dwelling more on what it would be. Also, I’m unsure to what extent it would open the employer up to lawsuits if the employee is indeed injured - one might think that an upfront agreement would preclude that, but I’m unsure if this is true (“yeah, I assumed the risk but that was because I assumed you would of course follow Procedure X like you should have” etc.)

2

Sorry, that’s “should be”. Meaning what is right, as opposed to a technically correct legal interpretation of the ADA.

3

I don’t think it is fair to demand them to hire people who’s physical limitations prevent them from safely doing the job. It isn’t feasible to cover all the different possible combinations of disabilities and dangerous jobs so I’m not going to try.

So let’s assume that job Y is available and the only life that will be in danger is the handicapped person. There are other factors that I as an employer would have to consider. How much does it cost to train a new employee? Will he be putting any of my equipment at risk? What will he do to my insurance rates?

Marc

4

Any idea of what the job was, what the disability was and what potential danger there was??? I’m having trouble envisioning anything.

Don’t I recall another landmark decision where some employer wished to exclude females 'cause they’d have to work around stuff that could cause infertality in females?

5

I think it is also important to consider that the employer may be sued by the handicapped person’s family if he/she dies on a job that they were not qualified to do.

6

It’s one thing to put your own safety in danger when the only one who could suffer any consequences is you.

It’s another thing altogether to do the same in such a maner that would potentially cause your employer to lose a great deal of money in damaged equipment, time spent training a replacement, and possible lawsuits.

If I’m not mistaken, the ADA mandates “reasonable accomodations”. There is nothing reasonable about being required to hire someone whose presence could mean tons of money down the drain.

7

wring:

From the link in the OP:

8

thanks Robo seems pretty similar in nature, then to the one I half recall with the women.

In each case, the situation seems to be that some sort of exposure to potentially harmful chemicals/smells etc. is the issue.

So, apparently, this man has Hepititus, and exposure to the working conditions may make his condition more serious and hasten his demise, right? and the company seems to not want to hire him in particular since his pre-existing medical condition could get worse through working there, right?

so, the prior objections in this thread about the person being unqualified don’t seem apt. (unqualified to me means you’re unable to fufill the essential job functions, not that fufilling the essential job functions could utlimately kill you). And the concern about employer loosing equipment also seems to not be realistic. They would have to contend with three things it seems:

  1. the potential for loosing a trained employee ‘before his time’ - but there’s no guarentee that any employee will stay with any organization for any specific length of time. Sure, they’d prefer to not have to waste training $$, but that does in fact happen frequently no matter what.

  2. The potential for a lawsuit by the employees heirs for contributing to the employee’s demise. that may be mitigated by having the employee sign statements indicating knowledge of risk, and assumption of risk.

  3. The potential of the employer’s insurance carrier to raise it’s rates - I’d want to see hard core data on this.

there’s a balance that needs to be achieved here - the individual’s right to choose, the employer’s desire/need to have a profitable venture, and general ‘do-goodness’. ( :slight_smile: )

We don’t interfere w/an adults’ right to engage in risky behavior in a number of ways. and certainly, there exist a great number of occupations where there is a great deal of risk (and corresponding high worker’s comp insurance rates) - window washing, movie stunt work, police, fire, soldiers, repetitive tasks etc.). generally speaking, those that include a high degree of risk also are compensated more highly, with the thinking that w/o extra compensation, it’s tough to convince some one to do something risky.

The problem becomes, what to do when a potential employee’s risk is appreciably or perhaps measureably higher for such harm than another potential employee, is that sufficient cause/reason to allow the employer to select one over the other? And where does one draw that line?

Overexposure to sunlight can raise the risk of skin cancer. Should an employer then be able to screen potential employees out based on other factors that would also raise their risk ? etc.

The ADA requires employers make reasonable accomodations if the person can perform the essential job functions. I don’t see where performing the ‘essential job functions’ is the issue here. The issue seems to me to be that the employee desires a more highly compensated but riskier position, and the employer is countering that it’s an unacceptable level of risk for that particular person.

9

Actually, in most cases, no lawsuit would be permitted against an employer for an employee death on the job. Rather, the employee’s heirs would receieve workers compensation benefits. These cannot be signed away.

Many states have a “second injury fund” that pays a portion of the benefits when an already-injured employee has a further injury which has a more severe impact due to the first injury. E.g., if an employee is already blind in one eye and loses sight in the other eye. However, the 2nd injury fund would not come into play when an employee has a greater-than-normal exposure to some risk.

All medium to large employers pay workers comp insurance rates that are partially based on their own claims history. So, the employer could eventually pay a higher premium in response to the higher claims.

Also, the safety experts who used to work for me preached a message that WC benefits are only 20% of the loss to a company. The additional cost of substitute workers, retraining, recruiting, etc. were 80% of the cost. Our moral was that it was worth money and effort to become as safe as possible.

Although the injured worker or decedant’s heirs couldn’t sue the worker’s employer, they could sue others whose negligence contributed to the accident. E.g., I have read that one tragic death in the WTC was a wheel-chair bound worker who was unable to evacualte. His heirs have the same right to sue as heirs of other employees. They could sue the airlines, the building managers, the building owners, OBL, etc. (At least one suit against OBL has already been filed.)

In principle, these suits could take the disability into account in allocating blame. E.g., the building owner could claim that the disabled employee assumed the risk of working in a building knowing that he couldn’t evacuate. However, the impact of the disability could also go the other way. E.g., the wheelchair user’s heirs might ask for extra damages to punish the building owner for failing to have emergency exits for the disabled.

10

Why is this?

11

This is a key principle of workers compensation laws, which were mostly enacted in the period of 1914 to 1920. The worker’s right to sue his employer was taken away; in exchange the worker becane entitled to compensation based on degree of injury, regardless of fault.

The reason I wrote, “In most cases” was because there are fairly uncommon exceptions, whereby a worker may be able to sue his employer

12

I disagree w/your assesment december given that in the case in point, the (presumable) death of the employee would likely not happen on the job at all, and not because of an ‘accident’, but likely be caused by an illness the employee already had, and may have been exacerbated by certain working conditions.

And to claim that worker’s comp mean no lawsuit isn’t particularly correct, either IME, since there’s a whole lotta attorneys locally who advertise that they sue over w/c claims (ie that it was denied, etc.) this one would most likely end up in court to determine the relative damages (original illness vs. percentage relative to issues at work, assumption of risk as a mitigating factor).

13

Wring, I have a lot of WC experience. In the mid 1970’s I was responsible for calculating WC premium rates for all companies in the State of California. Later, I was the #2 person in a workers compensation specialty company, which also sold liabililty insurance.

WC covers illnesses as well as accidents. If the conditions at work contributed to an illness, then WC benefits apply, rather than tort liability.

As I said, there are fairly uncommon exceptions, whereby a worker may be able to sue his employer. In Illinois, if the employer hasn’t provided a “safe place to work”, then the employee can sue. In certain rare cases, the worker may be able to sue her employer indirectly via an outside employer. Asbestos has tended to be covered outside of the WC system.

Also, if the employment is offshore, then different laws apply. Maritime workers fall under the Jones Act, which does permit suits against the employer.

Wring, the ads you see are probably lawyers who want to sue for WC benfits; these are not lawyers seekng to sue under tort liability law.

In principle, WC is supposed to work without lawyers or lawsuits. Benefits are paid according to a precise schedule. For minor injuries, this system works just fine. However, for more major injuries, a lawyer may well be helpful in securing WC benefits. Also, there are cases of uncertain causation where a good lawyer might be able to show that work conditions contributed to the injury or illness. Of course a lawyer naturally wants to get hired. Even if the worker she represents could have gotten the same benefits without lawyer, she still receives a fee.

14

december is correct on worker’s comp, wring. The basic idea is that if you suffer an injury due to your job, you (more or less) automatically receive worker’s comp benefits, regardless of whose fault it is–yours, your employer’s, you co-worker’s, pretty much anybody’s. You can still sue third parties if it’s their fault, but the employer gets paid back out of any recovery before you see a dime of that award.

Worker’s comp damages are generally a lot less than tort damages, but their big advantage is that they’re certain to be awarded. To win a tort suit, you generally have to prove fault, and in the bad old days before worker’s comp, that was next to impossible to do w/r/t an employer. Worker’s comp ameliorated that problem in a classic policy trade off: certain recovery, but only for limited damages.

15

My point is that in the example being discussed (worker has pre-existing illness/condition that may be made worse by certain work conditions), that should the employee die as a result of the illness/condition, the following is likely:

  1. The heirs of the employee would file a worker’s comp claim, claiming that the working conditions contributed to the worker’s death.

  2. The w/c company would pay out the claim, offer some reduced benefit or deny the claim. Should they offer a reduced benefit and/or deny the claim this situation would land in court.

I see upon review that december used the phrase ‘cannot sue the employer’, which led to some of the confusion. Litigation itself is not a remote possability,
tho’ litigation against the employer may well be. The way december phrased it, it seemed the heirs did not have any potential for redress of grievence.

In the case cited, it would seem to me likely that it would end up in court, assuming the underlying cause of death would be the condition. The degree of responsability (contributing factors of work environment).

The question to me, is 'is the potential employee allowed to increase their own personal risk (compared to general population)" (and it seems clear that we routinely allow people to increase their own personal risk), and then “should the person take on a greater than average risk, does this mitigate/lessen potential payout of insurance benefits, and become binding on both the heirs and insurer?”

I believe in auto insurance for example, if one is partially at fault for an accident, (ie raised their own personal level of risk) that can indeed lower the obligation to the insurer and/or other party.

should this extend to workers’ comp claims as well?

On the one hand, the company should be able to minimize their future costs (as december correctly points out the w/c insuror can raise rates).

On the other hand, who is ultimately responsable for making decisions for the individual regarding ‘acceptable risk’?

should an employer whose employees are at greater risk of skin cancer (for sun exposure) be allowed to screen out applicants who run a higher than average risk w/o sun exposure? Can an employer in a factory w/heavy fumes screen out smokers since they may be at higher risk of developing asthma or other breathing difficulties? etc.

16

That sounds about right.

This type of situation is a tough nut for the WC system. WC law is based on the idea that an injury or illness has one single cause. If it’s caused by work, the employee gets full benfits. If not, the employee gets nothing. Of course, this assumption is often not realistic.

Under California law, worker and insurer are permitted to compromise a claim when there is uncertainy over its compensibility. This situation can work pretty much like wring’s first paragraph. However, if it goes to court, there’s no legal basis for allocating causation. It’s all or nothing.

Almost 30 years ago I chaired a committee of the California WC Institute, with the goal of finding a sensible way for the workers comp system to handle illnesses of uncertain etiology. I regret to say that we got nowhere.

Disclaimer - I’ve been much less involved with the WC field for the last 16 years. FAIK some state may have enacted a system to deal with this situation that I might be unaware of.

Answering the second part, there doesn’t seem to be a practical way to mitigate the payout by the insurer. In any event, the total cost to the employer if a worker becomes disabled is supposedly 5 times the cost of just the WC benefits. Even if the WC benefits could be adjusted, the employer has valid finacial reasons not to hire a worker who is likely to become disabled.

From my POV, the employee should be allowed to refuse to hire a worker for any reason or for no reason. Actually, that is the case, with certain exceptions. However, the list of exceptions has grown long. An employee is still permitted to not hire someone for no reason. But, the employee cannot decline to hire an worker because of race, disability, etc., etc.

I really don’t know how the ADA would apply to the various situations listed by wring.