Thursday, July 03, 2008

Note on the ADA and Second Injury Funds

Just out: Zachary D. Schurin, Note, Monkey-Business: Connecticut's Six Billon Dollar Gorilla and the Insufficiency of the Emergence of the ADA as Justification for the Elimination of Second Injury Funds, 7 Conn. Pub. Int. L.J. 137 (2007). From the introduction:

Existing in forty-nine states and Washington D.C. as late as 1991, SIFs have been steadily eliminated over the last fifteen years. Called superfluous by academics, business interests, and lawmakers, the essential criticism is that the purpose of SIFs was rendered obsolete by enactment of the Americans with Disabilities Act of 1990 (ADA) and complementary state law anti-discrimination provisions.

Connecticut's decision to close its SIF to new claims is emblematic of this trend. The wealthiest state, Connecticut has not only the highest per-capita income in the country, but the highest manufacturing sector pay as well. A solidly “blue” state, Connecticut is generous in terms of workers' compensation benefits, ranking fourth highest among the states for maximum weekly benefit cap. For these reasons, the elimination of Connecticut's SIF was a curious public policy decision. A state with tremendous fiscal resources and a generous compensation system, Connecticut would seem an unlikely candidate to repeal a disabled workers' benefit program.

With a particular focus on Connecticut, this article attempts to show that elimination of SIFs premised on the mere existence of the ADA is an insufficient policy justification. While the ADA represents both a more comprehensive approach to the problem of disabled employment, and includes strong punitive measures, the ADA, in and of itself, cannot eradicate hiring discrimination against the disabled. State elimination or closure of SIFs is a premature abandonment of a governmental mechanism that is well suited to supplement the ADA and similar state law.

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