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HR and Tax Newsletter - October 2005

OSHA Commission Rules Newspaper Distributor, Not OSHA Employer

The OSHA Safety and Review commission has determined that a newspaper distributor was not an employer of newspaper street vendors for OSHA purposes. Because it was not an employer the distributor was not responsible for failing to provide street vendors with reflective vests. Patrick McDonough was struck by a car and killed while selling newspapers at an intersection in Boca Raton, FL. The applicable OSHA standard states that personal protective equipment must be provided to employees who are exposed to workplace hazards that could cause injury through physical contact.

In reaching its decision the commission determined that the newspaper distributor did not control the means and manner by which the street vendors sold the newspapers. The distributor did not bar the vendors from selling newspapers for other distributors. Although the street vendors were guaranteed $26.50 a day, which amounted to the proceeds of 53 newspapers, the vendors could sell as many newspapers as they wanted to, for as long as they chose. The distributors did not provide the vendors with leave or retirement benefits and did not pay workers' compensation or Social Security taxes for the vendors. Secretary of Labor v. AAA Delivery Services.

Eleventh Circuit Requires Reasonable Accommodation for Employees Regarded as Disabled

The Eleventh Circuit has decided that the Americans with Disabilities Act requires the reasonable accommodation of employees regarded as disabled. Cris D'Angelo was fired after ConAgra determined that the symptoms of vertigo she experienced while watching conveyor belts rendered her unqualified for her job. The court concluded that the plain language of the ADA yields no statutory basis for treating individuals differently who are disabled in the actual-impairment sense and those who are disabled only in the regarded-as sense.

Although it recognized that a majority of circuits have held that "regarded as" employees are not entitled to reasonable accommodation, the Eleventh Circuit concluded that under the plain language of the ADA, employers are obliged to provide reasonable accommodations for individuals falling within any of the ADA's definitions of disabled, including those " 'regarded as' being disabled." It concluded that the statutory language of the ADA offered no grounds for differentiating between the types of disability defined in the Act.

The court drew support from a 1987 U.S. Supreme Court case decided under the Rehabilitation Act of 1973 and the ADA's express incorporation of many of that Act's implementing regulations. It reasoned that "Since the Rehabilitation Act required employers to accommodate employees who were disabled in the regarded-as sense, we can find no principled basis for concluding that the more expansive ADA does not." It regarded as unpersuasive rationale used by courts that took a contrary view--that requiring employers to accommodate individuals they merely regard as disabled would produce anomalous results. It concluded that this rationale ignored the principle that courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement. It also questioned whether the results might be as "bizarre" as suggested. D'Angelo v. ConAgra Foods Inc. d/b/a Singleton Seafood Fla.