RESNA 28th Annual Conference - Atlanta, Georgia
Sandra Shackelford, BSMSE, Scott Haynes, MBME
As automated manufacturing technology improves, more opportunities are available for people with disabilities to work in this type of environment. As these opportunities become available, however, it is important to consider the safety regulations with which employers must comply and the role these play in the employment of people with disabilities in manufacturing settings. The court cases have consistently ruled that workplace safety should not be compromised to hire a person with a disability. There are several resources available through the Occupational Safety and Health Administration to assist employers and Vocational Rehabilitation professionals as they seek employment for people with disabilities.
Workplace Accommodations; Safety; Manufacturing; OSHA
The Occupational Safety and Health Act of 1970 was signed into legislation to ensure that employers provided employees with safe work environments. Employers are required to submit records of workplace-related injuries, illnesses, and deaths to the Occupational Safety and Health Administration (OSHA) each year unless the type of industry falls under the list of partially exempt industries available online through the OSHA website. If the incidence rate of workplace injuries or accidents exceeds a specific level determined by OSHA, the work site will be inspected for compliance with the safety regulations. If health and safety hazards are found during the inspection, OSHA can fine the employer up to $70,000 per hazard depending on the severity. Because of the risk of fines, it is important for employers to adhere to safety regulations as stringently as possible.
The Americans with Disabilities Act (ADA) of 1990 requires that employers do not discriminate when hiring employees based on disability if the person being considered for the position is capable of performing the functional job duties or would be capable of performing the functional job duties with a reasonable accommodation. The interaction of these two pieces of legislation becomes very important when employment of people with disabilities in manufacturing environments is being considered. Several court cases have demonstrated areas where the ADA and OSHA have seemingly conflicted (1, 2). Because of the emphasis on safety records in manufacturing environments, it is important that employers understand their responsibilities when considering an applicant with a disability. It is also important for Vocational Rehabilitation (VR) professionals to understand the importance of compliance with the existing safety regulations and the need to demonstrate that a potential employee with a disability will not lead to elevated safety risks.
This study sought to identify programs and mechanisms that are currently available to assist employers and VR professionals in making decisions about employing a person with a disability for this type of setting.
Many types of documents were reviewed to address the research question. Applicable sections from the Occupational Safety and Health Act, other Occupational Safety and Health Administration documents including letters of interpretation and variances awarded, literature relating to the topic, and applicable court cases were all reviewed. The appropriate documentations were identified through various database keyword searches for terms such as “disability,” “OSHA,” “manufacturing,” and combinations of these terms. The court cases were identified through similar techniques searching the Lexis Nexis legal database for the terms “OSHA” and “ ADA.” The returned results were then reviewed for content.
There are a number of resources available to those seeking guidance related to compliance with safety regulations. The results section is divided into two categories: assistance VR professionals can seek directly and assistance that must be requested by the actual employers.
The OSHA website is full of helpful information for those searching for answers to safety-related questions. Among the information provided on the website are answers to frequently asked questions, past letters of interpretation (discussed below), and many sections of the Occupational Safety and Health Act. The information on the OSHA web page also includes contact information for the national and local OSHA officials. In addition, the Field Inspection Reference Manual (FIRM) is available on the OSHA web page. This manual is used as a reference tool for OSHA inspectors when inspecting a site and is a good source of information for those who need to know what happens during a site inspection. If an employer or a VR professional has a safety-related question, the OSHA website is good place to start looking for answers.
Compliance Assistance Specialists are usually former enforcement officers and are also available to offer guidance on compliance questions. The Compliance Assistance Specialists are able to offer general guidance on the standards and can refer the employer or VR professional to additional references if necessary. Although the Compliance Assistance Specialist may not be able to answer all of the specific questions, he or she is a good starting point to seeking more information (3).
Letters of interpretation basically explain how OSHA standards need to be applied to the workplace. These letters are generated to respond to questions raised by OSHA, employers, employees, or others affected by the regulations (such as VR professionals). They do nothing to expand or alter OSHA policy, but communicate how the current regulations should be interpreted (4) . Past letters of interpretation relating to people with disabilities have addressed whether a specific accommodation for a person with a disability is permitted under the existing safety regulations, responsibilities of employers who have hired a person with a disability, and suggestions for safe accommodations for a specific type of disability (5) .
OSHA offers consultation services to employers seeking to make their workplaces hazard free. These services are run by the state governments and have to be requested by the employer. OSHA consultants will go to the workplace and help the employer identify work hazards and assist the employer in managing the existing hazards. The OSHA consultants will not cite the employer for any violations uncovered during this time and will not refer violations to OSHA inspectors. Information about each state’s consultation services are available online at the OSHA web page (6).
If an employee needs an accommodation that would not be in compliance with the existing safety standards, employers can seek a variance from OSHA. A variance is basically an exception to a standard for a specific situation; it cannot be applied uniformly across all workplace settings, people, or even across similar machines. In order to request a variance, the employer must show that the accommodation will be equally as safe or safer than the existing standard. OSHA will review the request considering the employer’s evidence and possibly visiting the workplace to confirm the validity of the statements made in the request. If OSHA determines that the request is merited, it can grant the variance. The employer responsibilities and the ways the variance diverges from the OSHA standards will be documented (7).
Adhering to requirements of both the ADA and OSHA can be a daunting task for many employers. However, these tools are available to help employers understand their responsibilities more clearly and assist VR professionals in preparing to respond to the safety concerns of employers when considering a person with a disability for a specific job. The ADA was clear to ensure that employers are under no obligation to hire workers who would impose a direct threat to the safety of others in the workplace.
In the case of Echazabal v. Chevron, the Supreme Court ruled that the direct threat clause of the ADA that protects the employer’s right to not hire an individual whose employment in that position would lead to elevated safety risks applied not only to others in the workplace, but to the person with the disability him- or herself as well (1). In another Supreme Court case, Albertson’s v. Kirkingburg, the United States Supreme Court stated that employers are under no obligation to compromise compliance with other federal regulations when considering the employment of people with disabilities (2). The safety of people with disabilities in the workplace needs to be protected to the same extent as the safety of people without disabilities.
This study was funded by the NIDRR RERC on Workplace Accommodations, Grant #H133E020720.
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