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VOLUME 4.1 ~The Award Winning ~ SUMMER, 1999
DISABILITY NEWS
FURNISHED TO YOU IN OUR FOURTH YEAR BY: THE TENNESSEE ASSOCIATION FOR DISABILTIY RIGHTS
YOU HAVE THE POWER
As a member of the Tennessee Association for Disability Rights for the last few years, I've gained much more insight into what many disabled Americans have come to expect since being given equal rights from their government through the Americans with Disabilities Act.
On one hand their country has given them the legal backing to correct the discriminating habits of the past, but on the other, they usually find themselves in court having to fight for the correct interpretations of the written law.
I'd like to try and reach out to those of you that may have a reluctance to become involved for the latter reason. I'd like to talk about two old sayings that most of us are familiar with. The first is "You can't fight City Hall". Now "City Hall" doesn't necessarily have to represent that big building downtown. It could represent just about any entity with more rules, people and power than the average person could hope to stand against or change.
To the average person, "City Hall", "Big Business", or "Big Money" may very well represent the institution that makes the rules and regulations they must live and work by.
It's the suspicion that maybe those same rules and regulations are purposely being misinterpreted or manipulated that drive people to start asking questions, making sure enforcement is equal and fair. Speaking up can be like jabbing a tired driver to keep them from nodding off while you're in the car. White line fever / white collar fever.
The other old saying I'd like to mention that's been around as long as I can remember is "Justice will prevail". I always believed this meant that no matter how powerful, corrupt or headstrong an entity may be, eventually they'll pay for what they've done. A "comeuppance" if you will.
People can use this saying when they don't believe they have a chance, they can use it in reference to judgement day, they can use it hoping someone else will come along and do the dirty work for them, or they can use this saying as "inspiration".
Inspiration can start the second you decide that you want to be a part of stopping the discrimination. Inspiration will grow as you gather more evidence that something's wrong, inspiration will grow when those around you listen to your story and become inspired themselves.
At first, "City Hall" may be so focused on its business at hand that you may seem only a distraction and inconvenience. With the proper inspiration, facts and voice, one person standing alone can suddenly become a group, maybe even a crowd. It's a lot easier to dismiss one person's idea than it is to dismiss a group of people with the same idea.
My point in discussing these old adages is simple. It's a shame that American's still have to prove over and over in courts of law that discrimination has NO place in the pursuit of increased profit margins. The ADA has empowered the disabled and others to make sure this age-old practice stops. We don’t have to take it anymore.
By James Walden
INSIDE...
THE DISABILITIES ACT IS
CREATING A BETTER SOCIETY
"The Americans with Disabilities Act is not sensitive to the needs of our businesses - large and small - and will subsequently have a negative impact on our judicial system and on our nations productivity as a whole".
As they did when the civil rights bills passed a generation earlier, the political right warned that the Americans with Disabilities Act would undermine the American economy. The legislation passed decisively but not without a huge struggle and vehement opposition. The three current GOP House leaders - Dennis Hasten, Dick Armey and Tom DeLay - all voted against it. But it wasn't just conservatives complaining. Some well-healed Democratic contributors, like real estate, threatened to cut off financial contributions to prominent supporters of the ADA.
These doomsayers were almost totally wrong. In it's seventh year, the ADA, which prohibits bias against the disabled in employment and public accommodations, has won widespread acceptance from the public and most businesses, and has significantly elevated the awareness of and respect for the millions of Americans with disabilities.
Some critics, even reputable ones, still claim the law is backfiring. One study by two prominent M.I.T. economists claims that the costs have been so high to employers that it has resulted in hiring fewer, not more, disabled Americans.
But rival studies by the Census Bureau, the Presidents Commission on Disabilities and by Peter Blanck, a University of Iowa law school professor who specializes in this field, come to a contrary conclusion. Anecdotal evidence suggests they are right. Professor Blanek notes that most firms have found that the ADA is much easier to conform to than initially suspected.
Companies such as Sears, Manpower Inc., Sprint and Hewlett Packard have been at the forefront of making changes and say the ADA has not only not caused economic hardship but is generating a more productive and profitable workforce. The most significant contribution of the ADA is that it clearly has changed the perception of the disabled. This is reflected in modern culture as well as the workforce and public accommodations.
Some of the changes caused by the ADA have benefited more than just the disabled. Kids in roller-blades, delivery people and parents pushing baby strollers use curb cuts. Also, by raising awareness, the ADA has caused other institutions to reach out more for the disabled. Colleges and universities, for example, are making many accommodations for physically impaired students or those with learning disabilities than they were a decade ago.
To be sure, the ADA has fallen short of it's supporters most optimistic dreams; over half of disabled Americans still are unemployed, though sometimes that has more to do with health insurance or Social Security regulations.
Disability, like race or gender, is a natural and normal part of the human experience that in no way diminishes a person's right to live a normal life and participate in mainstream activities. As a society, we aren't there yet. But, because of the Americans with Disabilities Act, we're a lot closer than we were at the start of this decade. J.W
Based on an article by Albert R. Hunt, of the Wall Street Journal.
Editors note: No matter how much progress the ADA has produced, the following two facts are a reminder of how far we still have to go:
a. 90% of all the cases brought to the Equal Employment Opportunity Commission are thrown out.
b. According to the American Bar Association the cases that do get to court, the defendants, (usually businesses), win 98% of the time.
TITLE I ADA CASES HEARD
BY THE SUPREME COURT
These three (3) cases are all covered under Title I of the Americans with Disabilities Act.
1. The first case involves two (2) sisters who applied for employment with United Airlines and were denied employment based on their extreme near sightedness. The sisters argue that their poor vision is protected under the Act. The lower courts involved in this case ruled their poor vision was fully correctable with glasses or contact lenses.
2. The second case also involves poor eyesight, the employee was employed by Albertson's as a driver. The applicant performed well on his DOT road test although being almost totally blind in one eye. The employee after failing the DOT vision test standards, was issued a waiver to return to work from the DOT. Albertson's in turn refused to return the employee to work, so the employee filed suit.
3. The third case involves a mechanic for UPS, whose job required road testing trucks; he was fired in 1994 because his high blood pressure exceeded federal regulations for drivers. UPS attorneys argue that the plaintiff is not entitled to the advantages that the statue reserves for people who are disabled.
The Supreme Court is scheduled to offer rulings on all three (3) cases by July 1999.
By Bob Millage
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WORKPLACE LAW
By Stephen Crofford and Mary A.Parker
Workers Compensation
The most common cause of action that occurs in the workplace is a lawsuit seeking benefits under the Tennessee Workers Compensation Law. There are essentially three benefits provided by Tennessee law. They include: (1) complete medical benefits, both immediately after the injury, and for the remainder of your life, if needed; (2) temporary total compensation benefits, and, (3) permanent partial or total compensation benefits. If an employee is incapable of returning to work and is totally disabled, the employee would be entitled to permanent total disability benefits.
Most employees are aware of the basic statutory rights that are available to them, but are frustrated when statutory benefits are not provide & Reasonable steps an employee can take to insure that the injured employee receives his/her statutory rights will be discussed in this article.
The first thing the employee needs to do is to make sure that a notice of work related injury is filed. The notice must be filed within 30 days of the injury or within 30 days of learning that the injury is related to work. A copy of this document should be kept by the employee. This will prevent the employer from arguing that they were never notified of the work-related injury. The failure to give notice is commonly used as a defense by employers to defeat a Workers Compensation claim.
Secondly, the employee must make sure that he has chosen a physician from among those approved by the employer for work related injuries. According to the stature, the employer must provide a list of at least three doctors who are in three different practices not associated with one another, from which the employee must choose. if the employee chooses to use his/her own physician, neither the Workers Compensation carrier nor the health insurer will be responsible for payment of those medical bills. It will be the employee's own responsibility.
Another problem area arises when the employee fails to inform the treating physician about the source of the injury, so that the physician can develop an opinion about the medical causation of the employee's condition. It can be helpful if the employee takes the notice of work related injury form to the doctor and leaves a copy of that form with the doctor's office. Generally the physicians provided by the employer on their panel, are very conservative and are inclined to follow the desires and expectations of the employers, in order to keep the business from that employer. Many employees are surprised when their doctors' depositions are taken in preparation for trial and the physicians seem to have no recollection of the employees telling them that they were injured while on the job. if the notice of work-related injury form is in the doctor's file, the problem of the doctors' memories is alleviated
Of critical importance to the success of the Workers Compensation claim, is the physicians' opinion as to the degree of permanent impairment The amount of permanent impairment that the doctor assesses, can make the difference between whether a case is won or lost, or can be the primary factor in the valuation of the case. Since most people, especially those who have worked in factories for the majority of their lives have some type of prior back trauma or degenerative disc disease by the time they hit their 30's, many of the conservative, employer-selected doctors will not say "to a reasonable degree of medical certainty" that the work incident caused or aggravated the underlying condition. Those physicians may indicate that they cannot be sure; or, that the condition possibly was aggravated; or, that the condition could have been aggravated by the work-related incident. That type of equivocal testimony can be fatal to a workers compensation case. The doctors know it, the insurance companies and / or employers know it, and the employee may or may not know it. Even if the doctor assigned a permanent impairment rating due to the injury or surgery, if he cannot, or will not, testify that the condition was caused by work, the case can be lost.
The only remedy available to the employee is an independent medical examination. An independent medical examination is essentially a second opinion, however, it should not be an examination conducted by a doctor on the panel offered by the employer. The doctor should be one recommended by your attorney, or someone whose opinion you can trust, in order to find a doctor who will be fair in evaluating your condition.
If an independent physician gives the opinion that the injury was not caused or aggravated by the work-related accident, you can rest assured that you will not be able to maintain a successful workers compensation case. If' on the other hand, the independent physician is of the opinion that the condition was caused by work, the claim is still alive. The judge at the trial will have to make a determination as to which doctor to believe. The Court will, of course, listen to all of the lay evidence in conjunction with the medical proof giving you an opportunity to explain why you believe it was the work-related injury that caused or aggravated your condition.
These are just a few of the pitfalls that an employee needs to be aware of when they are injured on the job. These points should never be taken to replace the advice of your counsel, but are intended to alert you to the kind of problems that may arise if you are injured on the job.
Attorneys Stephen Crofford and MaryA. Parker's practice focuses on representing injured workers. Their offices are located at:
Parker and Crofford
209 Tenth Avenue South, Suite # 511
Nashville, Tennessee 37203
Phone # 615-244-2445
THE DREAM OF A GOOD JOB
CAN NOW BE A REALITY
The Rehabilitation Services Administration (RSA), which funds state Vocational Rehabilitation Agencies, now requires those agencies to approve vocational goals along with services such as equipment and education to meet those goals which "maximize the employment potential of people with disabilities."
RSA's old policy set a standard of "suitable employment" That standard allowed states to refuse approval of "uppity" goals, especially if they required advanced degrees or useable equipment. Vocational rehabilitation's counselors often saw people with disabilities as suitable only for entry-level positions. The RSA now backs up the idea that everyone is entitled to dreams and can prepare for genuine careers, even adults and especially children with disabilities.
The National Council for Independent Living and Technical Express urges you to take a copy of the new Policy Directive (RSA-PD-97-04) to meetings with your vocational rehabilitation counselor. For copies call the MTCIL at: 615-292-5803.
Individual Education Plan (IEP) teams who are planning transition services also should know about the new directive but probably don't. Kids with disabilities can now dream as "BIG A DREAM AS THEY CAN HOLD"
Compiled by Marge Palmer
Source: Voice of the Disability Nation
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YEAH, BUT...
You have, on average, 23 seconds to tell your physician what your concerns are before he or she interrupts or "redirects", according to a report in a recent edition of the Journal of the American Medical Association.
A survey of 264 patient/ physician interviews revealed that only 28% of physicians allow patients to air the full spectrum of their health concerns before they begin to focus on just one concern. It was also discovered that most physicians do not return to the list of concerns, leaving patients either to leave out their concerns altogether, or to bring them up late in the office visit when they can't be properly addressed, such as when leaving the office.
The authors determined that if given a mere "six" seconds more, most patients were able to complete their full list of health concerns. Within this small fraction of time, the physician would have been given the complete information for the most efficient and accurate diagnosis and treatment. J.W.
Reference point - 1999,281:283-287
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MEDICARE SCAMS
Recently a senior citizen living in a Memphis neighborhood called the Medicare Customer Call Center to report a door-to-door salesman who wanted $60 in cash to "change over" her Medicare. The Mid-South Foundation for Medical Care, Inc., (MSFMC), the non-profit organization that staffs the Customer Call Center urged her to call the police.
The MSFMC has since had similar calls from other seniors and their children. We have also heard of another door-to-door scam in East Tennessee and a similar telephone scam in rural areas of West Tennessee. Because of this, the organization is concerned that this scam is statewide.
"No one from Medicare will come door-to-door asking you for cash. And they won't ask you for your credit card. These people are crooks," said Donna Kyle, MSFMC's VP of Communications. The man told the senior that he needed the money to "change over her Medicare," and said Social Security had taken too much from her check.
"I'm afraid he was after the senior's Social Security and Medicare numbers," explained Kyle. She wants to remind seniors to not give out their Medicare numbers to strangers and to protect their Medicare number as they would their credit card number.
"When a thief gets your Medicare number, they may bill for services you didn't receive and cheat the government out of hundreds or thousands of dollars."
The MSFMC operates a toll-free hotline at, 1-800-489-4633, to answer questions about the quality of care that Medicare beneficiaries receive in Tennessee. J.W.
Source: Volume 6, Number 4
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ADA DEFINITIONS
Title II: Covers all activities of state and local governments, requiring that they give people with disabilities an equal opportunity to benefit from all of their programs, services, activities and facilities.
Title III: Prohibits discrimination against people with disabilities by public accommodations. It requires that new construction and alterations comply with the ADA Accessibility Guidelines.
Public Accommodations: Anywhere the public goes. Under the ADA, any such places are prohibited from excluding people with disabilities, segregating, or providing unequal treatment
ADA Accessibility Guidelines (ADAAG): Written guidelines, which tell how public accommodations should be made accessible. Examples: how steep ramps can be, where Braille should be placed in elevators, etc...
By Gary Merryman, Source: The 'Mouth"
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ADA PERSPECTIVE
WHAT'S THE PRIMARY PROBLEM WITH THE ADA?
People don't know their rights! It is amazing the large number of people with disabilities who don't know what the ADA means, or what the regulations say or how to use these laws. Its been eight plus years since the enactment, and its frightening to know that disabled people still do not know their rights! We need to do massive education and advocacy training. One of the best ways to enforce the disability rights law, will be through education. Like any other law, if you don't enforce it, it’s not worth the paper it’s written on.
WHAT’S THE BEST PART OF THE ADA ITSELF?
Most people trivialize disability rights. They are not even considered civil rights by many people. The fact that a person using a wheelchair cannot get up two steps into a store is not looked at as a violation of that person's civil rights. The fact that people can't get on a bus, that movies aren't captioned, that elevators are not Braille, those are not looked on as violations of civil rights. These kinds of issues, along with many others, are perceived by the public as inconveniences or technological difficulties.
But there are barriers to access and they are, by Congress's definition, Civil Rights violations. Depending on which label you put on them, a different consequence in our society will follow.
Congress says, "Individuals with disabilities are a discrete and insular minority faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, relegated to the position of political powerlessness in our society"
BUT VIOLATORS ALWAYS SAY IT WASN'T INTENTIONAL...
Under the ADA, Congress found discrimination in such critical areas as access to services and access to public accommodations that made those two steps, that curb without a curb cut, violations of civil rights. Pre-1990 it might have been unintentional, but when Congress passed the ADA law, it became the law Period!
Can you imagine what this country would have been like eight years after 1964 if we still had bathrooms marked "WHITES ONLY" and "COLORED ONLY" ? The separation of the bathrooms and water fountains is historic and it was "segregation". Back in the fifties many would say they weren't discriminating. They would say, "That's just the way things were".
In 1964 Congress passed a law saying access must be equal, if the restaurants and bus stations had continued to keep separate bathrooms and separate water fountains, there would have been a bloodbath in this country. It's the same thing with women's rights. Can you imagine passing Title Ix and eight years later a college says to you or your daughter, "Well we have the football team for the boys, and the basketball team for the boys, and the baseball team for the boys. We'll get around to giving the girls a swim team sometime." Women would have gone crazy'.
It’s been eight plus years since the passing of the ADA laws and we still have separation and segregation that continues to be directed towards people with disabilities.
IT SEEMS LIKE THE ADA WORKS BEST IN EMPLOYMENT CASES.
Employment? Employment is a losing battle. Since 1973, under Section 503 of the Rehabilitation Act, every single business that gets a contract with the Federal Government was suppose to have an affirmative program for hiring persons with disabilities. The U.S. Department of Labor has never, ever, enforced the Rehabilitation Act. It's not quotas! Example: when Boeing gets a Federal contract for billions of dollars how many people with disabilities have they hired? How many will they hire? What are they doing? If Boeing has 60,000 employees and 20 are disabled that's not an affirmative plan. The U.S, Department of Labor has an affirmative program and they must implement it! The Department of Labor has not done its job!!! Congress passed the law the Federal Agencies are suppose to be enforcing it, and they don't!
"The ADA is our law and the only way we're going to keep it, is to insist that it be enforced."
Compiled by Gail Farmiloe & Sandi Robbins. Source - The Mouth, Voice of the Disability Nation.
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STROKE CONNECTION
Stroke Connection is a free patient support service of the American Heart Association that helps families learn about stroke - what it is, where to go and what to expect before and after diagnosis.
This service is especially useful as lifestyle changes occur during recovery and rehabilitation. Families receive information on a wide range of topics.
The Stroke Connection warmline (non-emergency) phone number is: 1-800-553-6321.
Write: Stroke Connection - The American Heart Association
7272 Greenville Avenue
Dallas, TX 75231-4596.
E-mail: < Strokeaha@heart.org >
Or visit The American Heart Association web site at: < www.americanheart.org > J.W.
DISABLED WORKERS' SUITS MADE EASIER
The Supreme Court has now made it easier for disabled workers to sue their employers over alleged discrimination after they apply for or receive Social Security disability benefits.
The justices, voting unanimously in a Texas case, said courts cannot presume that people who apply for such benefits are in essence, admitting to be unqualified to hold a job and therefore cannot invoke the protection of a key anti-bias law, the Americans with Disabilities Act.
The ruling is a victory for Carolyn Cleveland, a stroke victim who was fired after attempting to return to work. This decision reinstates her lawsuit.
Writing for the court, Justice Stephen G. Brier said a lower court that threw out Cleveland’s lawsuit "thought, in essence, that claims under both acts would incorporate two directly conflicting propositions, namely 'I am too disabled to work' and 'I am not too disabled to work." Breyer said claims filed under both laws do not necessarily conflict.
"There are too many situations in which... (a Social Security disability) claim and an ADA claim can comfortably exist side by side," he said Some people who sue under the ADA contend they could work if provided reasonable accommodations, he noted.
However, Breyer said people who sue under the ADA after seeking Social Security disability benefits must provide a "sufficient explanation" why the two do not conflict.
A federal trial judge initially threw out Cleveland's lawsuit, and the 5th U.S. Circuit Court of Appeals upheld the dismissal. Disagreeing with most other federal appeals courts, the New Orleans-based 5th Circuit court ruled that people who apply for or receive Social Security disability' benefits have to overcome a "rebuttable presumption" that they are not a qualified individual as defined by the ADA
Cleveland's ensuing appeal to the nation's highest court was supported by the Clinton administration and the Equal Employment Opportunity Commission whose lawyers voiced concern for those workers who confront discrimination when seeking to return to their jobs after temporary disabilities.
Writing for the court, Justice Stephen G. Breyer said the 5th Circuit court was wrong in presuming Cleveland was not qualified under the ADA. Nonetheless, he said, in such cases "the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim."
Excerpts from an AP article by Laurie Asseo
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# H133D60018
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DEPARTMENT OF JUSTICE AND EEOC COURT SETTLEMENTS AND AGREEMENTS
1. A Memphis Tennessee collection agency has agreed to change their policies, practices. and procedures to accept calls from hearing-impaired individuals using the TDD system through the local relay service.
2. A child care center located in Smyma, TN recently reversed their policy of not administering medicine to any of the children under their care. Their original policy was to call E.M.S. units in emergency situations and wait for them to administer any necessary medications.
One of the children in their care had asthma and if an attack had occurred the administration of their inhalant would have been needed immediately.
Under Title III of the ADA, the Attorney General deemed that the existing policy was discriminate toward this qualified individual with a disability under ADA guidelines. To avoid unnecessary and costly litigation, the childcare center agreed to change its prior policy and allow for the administration of an asthma inhalant if and when needed.
3. A frozen food manager was injured and eventually given a 16% permanent impairment to his right ankle. His employer discharged him for not performing the essential functions of the management job or any other available job.
The 3rd Circuit Court ruled that although the plaintiff did not have a disability by ADA definition, the employer had still regarded him as having one. The employer had considered the plaintiff to be incapable of performing any of the employer's jobs, with or without reasonable accommodation.
The Court made it clear that, "An employer can rely on an employee's information about restrictions. but it has to be right when it decides those restrictions are permanent and that they prevent the employee from performing a wide class of jobs, as opposed to one particular job."
"To successfully claim that he was wrongly regarded as disabled from working, a plaintiff need not be the victim of negligence or malice" An employer's mistake (which may be the function of 'Goofs' or miscommunications) is sufficient to subject it to liability under the ADA.
Bv Bob Millage
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J. ANTHONY ARENA
ATTORNEY AT LAW
SCHULMAN, LEROY, AND BENNETT
501 UNION BUILDING SUITE 701
P.O. BOX 190676 615 –244-6670
NASHVILLE, TENNESSEE 37219 FAX: 615 - 254-5407
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WHERE ARE THE DEADLIEST WORKPLACES?
According to recent figures from the National Census of Fatal Occupational injuries, an average of 17 workers are fatally injured at work every day in the U.S. Annually more than 6,000 workers are killed and another 50,000 to 60,000 workers die from occupational diseases. In addition, 7 million workers are injured on the job each year.
Unfortunately, the United States ranks the worst in workplace injuries compared with 15 other industrialized countries. We have the highest occupational injury rate among these 15 and a fatality rate of 5.9 deaths for every 100,000 workers compared with Great Britain and the Netherlands which average only 1.1 deaths per 100,000 workers.
Norway invests the most money on job safety and health activities about $11.36 for every citizen. By contrast, the U.S. spends only about $1.00 per citizen. Great Britain reports having one health and safety inspector for every 2,354 workers. America has one inspector for every 54,435 workers. What's going on here?
In 1971, the U.S. government enacted the Occupational Safety and Health act, (OSHA). Though extremely limited, the law subjected most private employers, for the first time in U.S. history, to safety inspections and penalties for violations. According to some estimates, over 187,000 lives have been saved and millions of injuries prevented because of these elemental protections.
From the initial enactment, however, these regulations have been bitterly opposed by big business. Over the last few years a number of bills have been lobbied and introduced in Congress to make compliance with OSHA standards voluntary, to limit OSHA standards, and cut funding for safety training by 90%.
With the current allotment of 2,140 federal and state OSHA inspectors responsible for enforcing the law at more than 7 million workplaces, it would take OSHA 109 years to inspect each workplace just once.
In many cases, even when OSHA inspections occur, they are largely ceremonial. Management is usually well informed on when an inspection is expected. Penalties are usually nominal for this reason. Even if serious violations, defined as posing a substantial probability of death or serious physical harm to workers are discovered, the average penalty in the U.S. is only $681.00. The lowest is Wyoming with an average is only $125.00. The highest is Delaware with an average of $1,332.00
In addition to the erosion of health and safety protections, there have been widespread changes in state workers' compensation programs. These measures, pushed by the employers and insurance companies, have reduced company payment and medical coverage to injured workers, restricted a victims right to recover damages from negligent employers, and allowed employers to force injured workers back to the job as soon as possible.
According to the AFL-CIO, employer premium costs for workers' compensation fell by at least $1 billion between 1996 and 1997. Workers' compensation has become the most profitable line of insurance in the property & casualty field.
Permanent Partial Disability Benefits QPD), which are supposed to compensate a worker for the economic loss, diminished wage earning capacity, or impairment resulting from a permanent, but not totally disabling condition, are just 40 to 50 percent of pre-injury income. A surprise to some is the fact that some collective bargaining agreements between corporations and their unions can't do any better.
OSHA is a small agency that needs more money not less. Although big business's influence, (power, money, etc...), may seem to be the controlling factor in the timing, frequency and penalty cost of the inspection, it's still our responsibility to make sure the safety rules are adhered to after the inspectors leave. J.W.
Based on a report by Jerry White at < www.wsws.org >
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HOW DOES THE ADA EFFECT UNIONIZED EMPLOYERS?
Federal Labor Law imposes a duty of fair representation on unions, they must act reasonably, in a non-discriminatory fashion and in good faith with respect to the employees they represent.
This duty of fair representation may include assisting an employee in obtaining a reasonable accommodation or cooperating with an employer in attempting to determine a reasonable accommodation within the bargaining unit and the terms of the collective bargaining agreement.
Private sector employers who have unionized employees are subject to the National Labor Relations Act (NLRA). The NLRA provides, among other things, that the union is the exclusive representative of the employees and that the employer is prohibited from dealing directly with employees concerning terms and conditions of employment.
Furthermore, the NLRA prohibits employers from implementing any change in terms and conditions of employment without first negotiating that change with the union. The ADA prohibits employers from entering into collective bargaining agreements that discriminate against individuals protected by the ADA.
By Gail Farmiloe
Resource: ADA Regional Disability and Business Technical Assistance Center
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QUESTIONS FOR THE DOC
A lot of times people scheduled for surgery don't realize until the last minute questions they should have asked before the day of the surgery.
In my own case and in talks I’ve had with various other people, this sudden burst of clarity usually happens between the time you check into the hospital and the moment they're wheeling you into the operating room.
That's why when I came across this list in a USA Today supplement, I thought I might pass it along to our readership.
While there is a chance you might learn something you didn't want to know, you'll probably feel a lot better knowing all the facts beforehand
Consider asking the following:
1.. Do you have written materials or videotapes about this surgery that I can review?
2. How much improvement can I expect from the surgery?
3. What is your experience doing this type of surgery, and how many have you done?
4. Are you Board Certified?
5. Approximately how many of these surgeries are done each year at this hospital? Is there any outcome data available?
6. What type of anesthesia will be used? What are the risks?
7 Will I have to stop taking any of my medications before surgery?
8. When may I leave the hospital?
9. How much pain is normal to expect and how long will it last? Will I receive medication for it?
10. When will I start physical therapy? Will I need home or outpatient therapy?
11. Will I need to arrange for some assistance at home? If so, for how long?
12. What limits will there be on my activities - such as driving, bathing, climbing stairs, eating, sex, etc...?
13. How long will I need to be out of work?
14. How often will I have follow-up visits?
15. What complications can arise after surgery? What are the signs of complications?
16. What risks are involved? How likely are they?
J.W.
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THE HOUSE OF GOD SHOULD WELCOME ALL
The foundation of the house of God is weakened for all if barriers of attitude, communication, or architecture prevent people with disabilities from participating fully in the worship, study, service and social activities of their congregation.
The National Organization on Disability (N.O.D.) promotes the acceptance and Ml participation in all aspects of life, of America's forty-nine million men, women and children with physical, sensory or mental disabilities.
The N.O.D. Religion and Disability Program is an interfaith effort urging local congregations, national denominational groups and seminaries to identify and remove the obstacles to worship that alienate people with disabilities, so that all may worship.
Opening hearts, minds and door's challenges America's congregations to welcome people with disabilities. This is a campaign to enhance greater religious opportunity for Americans with disabilities.
Known as the Accessible Congregations Campaign, N.O.D.'s Religion and Disability Program seeks the commitment of 2,000 congregations of all faiths to welcome people with disabilities as full and active participants by the millennium This is the only disability pro-gram in the United States addressing interfaith issues. True religious access is about opening those hearts, minds, and doors to millions of Americans with disabilities who seek a full life of faith.
People with disabilities have gifts and talents to share with their congregations. Is your congregation willing to meet this commitment?
By Gail Farmiloe
For more information, please contact the...
Religion and Disability Program
National Organization on Disability
910 16th Street, NW, Washington, DC 20006
PHONE - 202-293-5960 ; TDD -202-293-5968;
FAX - 202-293-7999 ; E-MAIL – religion@nod.org
Note: The TADR has the book, "That all may worship", an interfaith welcome for people with disabilities available for free loan to local congregations. Please call us if interested.
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OSTEOPOROSIS CONFUSION
Many women believe that osteoporosis and Arthritis are related, so much so that they may be waiting for the swollen joints, stiffness and pain associated with arthritis to occur before they become concerned about this bone-thinning disease.
The National Osteoporosis Foundation has issued a Public Health Advisory in hopes that more women will learn about the difference between the two diseases. A recent study found that sixty percent of women think that osteoporosis has warning signs or symptoms, such as pain, stiffness, or swollen joints, which are actually associated with arthritis. A bone density test is currently the only way to check for osteoporosis and the risk of future fractures.
By Gail Farmiloe Source: Arthritis Today
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RECOVERING FROM NATURAL DISASTERS AND OTHER TRAUMATIC EVENTS
Due to the recent amount of tornadoes in and around the Middle Tennessee area, we thought we would include an article on the hidden and sometimes overlooked aspect of a disaster, the trauma to those that live through the ordeal.
Emotional trauma isn't just limited to natural disaster victims though. A person involved in a serious automobile accident or a crime victim can also suffer sudden and overwhelming emotional tolls. Understanding the normal responses to these abnormal events can aid people in coping effectively with their feelings, thoughts, and behaviors.
The following information was provided by the American Psychological Association:
What happens to people after a disaster or other traumatic event?
Shock and denial are typical responses. Both are normal protective reactions. Shock is a sudden and of intense disturbance of your emotional state that may leave you feeling stunned or dazed. Denial involves your not acknowledging that something very stressful has happened or not experiencing fully the intensity of the event. You may temporarily feel numb or disconnected from life.
Reactions vary from one person to another. The following, however, are normal responses to a traumatic event:
Feelings become intense and sometimes are unpredictable. You may become more irritable than usual, and your mood may change back and forth dramatically. You might be especially anxious or nervous, or even become depressed.
Thoughts and behavior patterns are effected by the trauma. You might have repeated and vivid memories of the event. These flashbacks may occur for no apparent reason and may lead to physical reactions such as rapid heartbeat or sweating. You may find it difficult to concentrate or make decisions, or become more easily contused. Sleep and eating patterns also may be disrupted.
Recurring emotional reactions are common. Anniversaries of the event as well as reminders such as sirens can trigger upsetting memories of the experience. These "triggers" may be accompanied by fears that the stressful event may be repeated.
Interpersonal relationships often become strained. An increase in arguments with family members and co-workers, is common. On the other hand, you might become withdrawn and avoid your usual activities.
Physical symptoms may accompany the extreme stress. For example, headaches, nausea and chest pain may result and may require medical attention. Pre-existing medical conditions may worsen.
How should I help my family and myself?
There are a number of steps you can take to help restore emotional well being and a sense of control following a traumatic experience, including the following'
Give yourself time to heal. Allow yourself to mourn the losses you have experienced. Try to be patient with changes in your emotional state.
Ask for support from people who care about you, people who will listen and empathize with your situation. But, keep in mind that this support system may be weakened if those who are close to you have experienced or witnessed the same trauma.
Engage in healthy behaviors to enhance your ability to cope with excessive stress. Avoid alcohol and drugs.
Avoid major life decisions such as switching careers or jobs if possible because these activities tend to be highly stressful themselves.
How do I take care of my children's special needs?
Spend more time with children and let them be more dependent on you. Physical affection is very comforting to children who have experienced trauma. Allowing a child to cling to you more often is helpful.
Provide play experiences to help relieve tension. Younger children in particular may find it easier to share their feelings about the event through non-verbal activities such as drawing.
Encourage older children to speak with you. Reassure them repeatedly that you care about them and that you understand their fears and concerns.
Keep regular schedules for activities. Eating, playing and going to bed at regular times helps restore a sense of security and normalcy.
Please feel free to pass the above information along to anyone you feel may benefit from it.
For futher information on this topic you can contact the American Psychological Association toll-free at 1-800-964-2000 ; or contact the National Organization for Victims Assistance toll-free at: 1-800-TRY-NOVA. J.W.
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MOST ACCESSIBLE CITIES IN THE UNITED STATES
According to New Mobility Magazine, the following cities lead the Country in affordable and accessible housing, quality medical care and transportation:
(1) Denver, Colorado; (2) Berkeley, California: (3) Seattle, Washington; (4) Sioux Falls, South Dakota; (5) Raleigh, North Carolina; (6) San Jose, California; (7) Salt Lake City, Utah; (8) Rochester, Minnesota; (9) Madison, Wisconsin; (10) Albuquerque, New Mexico.
By Melinda Bradberry
HIS FATHER'S EYE'S
This teenager lived alone with his father, and the two of them had a very special relationship. The son loved to play football and his father always made a point of attending his son's games sitting in the stands and cheering. Even though the son was always on the bench, his father was always there. He never missed a game.
This young man seemed the smallest in the class when he entered high school, but his father continued to encourage him. He also made it very clear to his son that he did not have to play football if he didn't want to. But the young man loved football and decided to hang in there. He was determined to try his best at every practice, and perhaps he'd get to play when he became a senior.
All through high school he never missed a practice or a game, but remained a bench warmer all four years. His faithful father was always in the stands, always with words of encouragement for him. When the young man went to college, he decided to try out for the football team as a "walk-on". Everyone was sure he could never make the cut, but he did. The coach admitted that he kept him on the roster because the boy had always puts his heart and soul into every practice and, at the same time, provided the other members with the spirit and hustle they badly needed.
This persistent young athlete never missed practice during his four years at college, but he never got to play in the game. It was the end of his senior football season, and as he trotted onto the practice field shortly before the big play-off game, the coach met him with a telegram. The young man read the telegram and became deathly silent. He swallowed hard. He mumbled to the coach, "My father died this morning, is it all right if I miss practice today?" The coach put his arm gently around his shoulder and sail "Take the rest of the week off son. And don't worry about the game on Saturday, we'll get by".
Saturday arrived, and the game was not going well. In the third quarter, when the team was ten points behind a silent young man quietly slipped into the empty locker room and put on his football gear. As he ran onto the sidelines, the coach and the players were astounded to see their faithful team mate back so soon. "Coach, please let me play. I've just got to play today," said the young man. The coach pretended not to hear him. There was no way he wanted his worst player in this close playoff game. But the young man persisted, and finally feeling sorry for the kid, the coach gave in. "All right," he said. "You can go in."
Before long, the coach, the players and everyone in the stands couldn't believe their eyes. This little unknown, who had never played before was doing everything right. The opposing team couldn't stop him, He ran, he passed, blocked and tackled like a star. His team began to triumph. The score was soon tied.
In the closing seconds of the game, the kid intercepted a pass and ran all the way for the winning touchdown. His teammates hoisted him onto their shoulders. The fans broke loose with amazing cheers. Finally, after the stands had emptied and the team had showered and left the locker room, the coach noticed that the young man was sitting quietly in the corner all alone. The coach went over to him and said, "Kid, I can't believe it. You were fantastic! Tell me what got into you? How'd you do it?"
He looked at the coach, with tears in his eyes, and said. "Well, you know my dad died, but you probably didn't know that my dad was blind! The young man swallowed hard again and forced a smile. "Dad had always came to all my games, but today was the first time he could really look down and see me play, and I just wanted to show him I could do it!"
Submitted by Jennie Tront of Snohomish, WA
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Scanning software was used to reproduce this e-mail version of the Disability News 4.1. While we’ve made an effort to correct the errors that generally occur during this process, we may have missed one. If a typo seems evident, please feel free to contact us for clarification. Thank you.
LEASING AGENCY CAN NO LONGER DISCRIMINATE AGAINST THE DISABLED
An out-of-court agreement resolved allegations that the Canadian-based TrizecHan Corporation violated the American with Disabilities Act by not leasing office property to a non-profit corporation.
The owner of the Commercial Real Estate Corporation who had refused to lease space to a non-profit organization that serves people with disabilities will no longer discriminate against people with disabilities and will take corrective action to ensure that it doesn't happen in the future.
"Refusing to lease to organizations merely because they serve people with disabilities if a flagrant ADA violation and will not be tolerated." Said Bill Lana Lee. Acting Assistant Attorney, General for Civil rights.
"Leasing agents who engage in this kind of conduct should be put on notice that the Justice Department will vigorously enforce the laws that protect business and organization from this kind of discrimination.
Under the terms of the agreement. TrizecHan will;
Individuals interested in finding out more about the ADA can call the Department's toll-free information line at 800-514-0301 or 800-514-0383.
By Saudi Robbins, Source: AOL News
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TAKING AN AIRPLANE TRIP WHEN CONFINED TO A WHEELCHAIR
In November of 1998, my wife and I where going to Washington, D.C on a business trip. Although I had flown many times since my accident in 1995, this trip would prove to be my worst travel experience.
When flying by air, people confined to wheelchairs are usually the first on the plane. The best way I've found to get to and into my seat has been to roll the wheelchair to my assigned seat and transfer over myself. This is usually done fairly quickly with no delay to other boarding passengers.
On this flight in November, I discovered that this particular flight on United Express would have to be on a plane that was barely handicapped accessible.
First, I discovered that the plane wasn't going to have any type of ramp. Second, the way United Express accommodates a wheelchair user is to have them transfer over to an "aisle cart," outside the airplane. I then had to be strapped onto the cart and then carried onto the plane manually, cart and all. My wheelchair was stowed somewhere. I suddenly found myself quite aware of the other passengers waiting to get on after me.
I knew from previous flights that the first one on is usually the last one off, but this time I also had to wait for airline personnel to come and manually carry me off of the plane. I was still strapped to the aisle cart sitting outside the plane, waiting for my wheelchair to be unloaded and set up. It was a bad experience for both me and my wife.
My suggestion for any wheelchair user who's about to take any airline trip is to get ALL the information about your flight, making sure every part of your trip is handicapped and/or wheelchair accessible. It might save you some unexpected and unnecessary humiliation.
By Tony Harris
JUDGE RULES "PLAY BALL" FOR AUTISTIC GIRL
Anna Inskip of Astoria, OR. won the right recently to play softball for Astoria High School. Anna, an 18 year old special education student, was diagnosed with Autism when she was 12. The school allowed her to practice with the team but she would never be allowed to play in a regular game. Anna stated that she wouldn't care how long she got to play as long as she got to play.
Anna's case is being handled by the Oregon Advocacy Center; they on her behalf are seeking $200,000 in damages. In the meantime, U S District Judge Garr King in Portland granted a restraining order against the district, giving Anna the right to play. Judge King ruled that by benching her unfairly, they discriminated against Anna under the Americans with Disabilities Act.
The school district in their defense described Anna as unaware of her surroundings, ducking when the ball came, and being a danger to others. Anna who catches one handed and can throw over-handed, has previously played basketball in the Special Olympics and was a member of the school swim team last year.
School officials said they would comply with the court order, with a caveat. "We’re going to try to play as many people as we can," Principal, Steve Giere said. "Regardless of her handicap, we're going to play whoever allows us to win in a highly competitive situation."
The court decision was heralded as monumental for those disabled athletes who want to compete in the mainstream.
Another notable case along this same point was the 1997 case of Casey Martin vs. the PGA tour. Martin, who has a leg disability that prevented him from walking long distances, wanted to use a motorized cart during the tour. The PGA refused; Martin challenged in Federal Court and won the right to use the cart.
By Richard Benavides
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JOBS FOR THE DISABLED, or
( JUST BECAUSE I CAN'T WALK DOESN'T MEAN I CAN'T THINK )
A few statistics: of the 40 million Americans with some sort of disability, only about 15% were born with it. According to reliable estimates, one in six of us will be disabled (temporarily or permanently) at some time in our lives, often after gaining considerable work experience. Among people with disabilities, the unemployment rate is a stunning 85% --in part because executive-search firms fear the disabled will be just too hard to place.
But here's one idea: Get in touch with an employment agency called Diversity Services. Started three years ago by a long time human resource executive named Jeff Klare, the firm has offices in New York City, Chicago, and Dallas, with plans to open Atlanta and San Francisco branches by the end of May, 1999. So far, Diversity Services has found work for about 4,000 disabled people nationwide with dozens of companies, including Chase Manhattan, Philip Morris, and Time Warner. Many of these positions start out as temporary but very often turn into permanent jobs.
Diversity Services, which won an Arthur Andersen Enterprise Award for best business practices in 1997, is "a win-win" deal. Employers having trouble finding qualified job candidates, with overall unemployment so low, often find that the disabled represent an enormous untapped pool of talent. For more information about Diversity Services, go to: <www.diversity-services.com. > . J.W.
Excerpt from a column by Anne Fisher of Fortune Magazine.
BULLETIN BOARD
TENNESSEE SPECIAL OLYMPICS
112 21st Avenue South, Suite 101
George Peabody College, Vanderbilt University
Nashville, Tennessee 37203
Alan Bolick, Director
Phone : 615-322-8292 Fax : 615-343-9473
TENNESSEE VOICES FOR CIIILDREN
2200 21st Avenue South, Suite 2031
Nashville, Tennessee 37212
Charlotte Bryson, Director
Phone : 615-269-7751 Fax : 615-269-8914
E-mail: < tnvoices@isdn.net >
KIDS FIGHTING AIDS, INC.
317 West 8th Street
Columbia, Tennessee 38401
Phone : 931-840-3533 Fax : 931-381-8913
THE ASSOCIATION FOR REPETITIVE
MOTION SYNDROMES (ARMS)
P.O. Box 471973
Aurora, Colorado 80047-1973
Stephanie S. Barnes, Founder and Executive Director
Phone : 303-369- 0803
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THE TENNESSEE ASSOCIATION FOR DISABILITY RIGHTS
P.O. Box # 8021 COLUMBIA, TN 38402
Internet: http://www.tadr.org E-mail: millage@djis.net
931-540-0100 (V); 615-292-7790 (TTY)
BOB MILLAGE, GAIL FARMILOE, SANDY ROBBINS,
JIM WALDEN, JEFF KIPHART
CONTRIBUTING BOARD MEMBERS:
RICHARD BENAVIDES, TONY HARRIS
MELINDA BRADBERRY, PARKAY SAMPSON,
GARY MERRYMAN, JUDY ORR, STEPHANIE BLAIR,
BRANDY WHITE, AND KATHERINE FUCHS
WE ARE A NON-PROFIT ORGANIZATION. ALL DONATIONS ARE TAX-DEDUCTABLE. AS ALWAYS, YOUR IDEAS AND COMMENTS ARE WELCOME.
Patience, Persistence. and Perseverance! These are the things that prevail.