Thursday, October 29, 2020

Mumbai High Court declares BMC circular illegal, directs payment of full salaries to disabled employees for absence during pandemic period

Dear Colleagues,

Please refer to my earlier post  'NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown' detailing the public interest litigation filed by the National Association of Blind after the civic body did not pay full salaries to the 268 visually impaired employees.

Accepting the petitioner's contention that the country’s richest civic body had shown “its inhuman an insensitive face, much to the detriment and prejudice of its physically disabled employees” the Division Bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni of the Bombay High Court, in their 63-page judgment passed on 28th October 2020 (Wednesday),  has held that the BMC's circular and its action of withholding pay during the pandemic were illegal and said, "we direct the corporation to ensure that none of the physically disabled employees, who did not report for duty during the pandemic are denied pay benefits “which they would have been entitled to, but for the pandemic and had they reported for duty”.

On 27 March 2020, the central government through an OM issued by DoPT exempted all government employees with disabilities from reporting for duty during the lockdown saying, "“All ministries and departments are advised to exempt persons with disabilities (PwD) from duties while drawing up roster of employees required to attend to essential services”.

Similar directions were issued by the Maharashtra government on 21 April 2020 exempting disabled employees from attending offices and that the period of absence may be treated as Special Leave without loss of pay. 

On May 2, the BMC announced that its disabled staffers were entitled to a special leave without loss of pay. But, on May 26, it issued a circular  that it was not a special leave, but a permissible leave which requires sanction and involves a pay loss. The circular directed that its disabled employees be given leave which is permitted under the Municipal Services Act. Under this, if these employees have used up sanctioned leaves, they will not get a salary if they don’t report for work. The BMC has nearly 1,150 physically disabled employees, including 278 visually impaired.

The judges noted that while the BMC initially favoured exemption, a “change of mindset resulted in revision of its earlier decision” and it was not backed by tangible evidence of physically disabled employees not facing inconvenience or discomfort while travelling to their workplace or “reference to any incident that could act as a trigger for such decision”. “If the civic body was not inclined to offer financial benefits, like pay physically disabled employees who do not report for duty, it was its duty as a model employer to make special arrangements for public transport or special measures to ensure hassle-free travel for these employees...”

The judges added that the right to free access is a right guaranteed by the Right of Persons with Disabilities Act 2016. Although it casts a duty on the state, nothing prevented the BMC as local authority from taking suitable measures for its physically disabled employees.

The judges said the BMC’s ‘flip-flop’ has intrigued them and there was no explanation for it. “This volte-face deserves to be viewed seriously and disapproved strongly.” 

The court said, “The circular requires judicial intervention. The circular and its action of withholding pay is held illegal.”  The Bench said that the payment must be made in two instalments, the first must be paid before Diwali and the second must be paid within 45 days from the date of the first instalment.

Watch out this space for the PDF Judgement soon...

Wednesday, October 21, 2020

Manhattan Federal Judge Paul Engelmayer rules "NYC has violated the ADA by not installing accessible pedestrian signlas for the blind."

Dear Colleages, 

A federal lawsuit, brought by the the American Council of the Blind in 2018, sued NYC Govt. on behalf of plaintiffs Michael Golfo and Christina Curry, claiming that out of the city’s 13,000 pedestrian traffic signals, just over 2 percent conveyed information in a way that is accessible to blind pedestrians. 

The lawsuit argued that the city’s Department of Transportation violated the Americans with Disabilities Act by neglecting to add audible features to crosswalk signals that let visually impaired people know when they have the traffic signal. There are about 205,000 blind or otherwise visually-impaired people who live in the city and face this inaccessible and hostile environement. 

The arguments have found favour with the District Judge Paul A. Engelmayer and on 20 Oct 2020, the court ruled  the current “near-total absence” of accessible crossing information violates the ADA and the Rehabilitation Act of 1973, the federal disability law that preceded the ADA.

The tuesday ruling notes that blind pedestrians in New York will typically stop at the curb and assume they are at a point where they can cross the street. Without any accessible indicator of a crossing, however, blind pedestrians cross somewhere other than the crosswalk 30 percent of the time. This leaves them to rely on other auditory cues, which is prohibitively difficult with New York’s level of ambient noise. 

In particular, Engelmayer ruled the city had failed to equip traffic signals with accessible pedestrian signals — APS for short — which include alarms or other audible alerts. The Court held that the absence of non-visual crossing information at more than 95% of the City’s signalized intersections denies plaintiffs meaningful access to the City’s signalized intersections and the pedestrian grid, in violation of the ADA and Rehabilitation Act,” Engelmayer wrote.

“The Court further holds that some, but not all, of the City’s projects with respect to traffic signals gave rise to a duty under these statutes to add APS [Accessible Pedestrian Signals]—a duty that the City has largely breached.”

The Court ordered  the NYC lawyers to seek an agreement with petitioners to make more intersections safe for pedestrians who cannot see. The two sides must submit a letter to the court by Oct. 30 laying out a path forward to come to a resolution, which could include benchmarks and deadlines for adding APS to street signals.   Though, the court's ruling itself does not specify how many signals must be installed.

Mayor de Blasio spokeswoman Laura Feyer said the city is already working to expand accessibility for blind people at crosswalks — but declined to provide a timeline for the installation of more infrastructure to make good on the judge’s ruling. 

“The city is dedicated to making our streets more accessible to all New Yorkers with and without disabilities, including those who are blind or have low vision,”  “We will continue to install APS across the city and are consistently working to increase access for the blind and low vision community in all facets of life.”  said Feyer.

Sources: 

1. pressfrom dot info

2. NYDailyNewsdotcom