Feds focus on health care employers' ADA compliance

By Leila Narvid, JD; Attorney, Labor and Employment Practice Group, Payne & Fears LLP, San Francisco

The Equal Employment Opportunity Commis-sion (EEOC) has issued interpretive guidelines to help health care employers understand their obligations under the Americans with Disabilities Act (ADA), and the main message is that hospitals and other health care providers must proceed carefully when dealing with disabled employees.

Since the EEOC issued the guidelines, "Ques-tions and Answers about Health Care Workers and the Americans with Disabilities Act" in February 2007, risk managers and attorneys have been trying to understand its lessons. (The document can be found online at www.eeoc.gov/facts/health_care_workers.html.) One thing is clear: These interpretative guidelines and commentary reflect the EEOC's recognition that health care employees are uniquely susceptible to medical conditions and that health care employers must be particularly careful in handling disabled employees. Using examples from actual lawsuits, the EEOC analyzes key legal issues under the ADA as they apply to the health care sector. Risk managers should review the examples provided by the EEOC and its commentary, as they provide practical solutions for a variety of issues that occur in the health care employment setting on an almost daily basis.

Unique issues for health care

The health care industry is the largest industry in the U.S. economy and one with a high incidence of occupational injury. According to the EEOC, health care workers are nearly twice as likely to be injured in the workplace as in any other industry. The EEOC's fact sheet suggests increased scrutiny for health care employers with regard to ADA compliance. The EEOC will be paying particular attention to particular ADA topics in the years to come, according to the fact sheet, and reasonable accommodation is at the top of the list.

The EEOC points out that an employer does not need to provide reasonable accommodation unless asked. However, if a job applicant or employee does ask for an accommodation, it can be an informal request, either written or oral, and it need not use the term "reasonable accommodation" to invoke protection under the ADA. Once an applicant or employee asks for accommodation, the employer is obligated to engage in an "interactive process" to elicit suggestions and discussion about how to best accommodate that employee.

For example, if a nurse has a lifting restriction, according to the EEOC, it may be a reasonable accommodation for a hospital to purchase a lifting device to allow the nurse to lift patients. In this example, the device would cost approximately $1,500 and would require training to ensure it is used properly. The EEOC states that the cost of the device and training would not pose an undue hardship to the hospital.

The EEOC warns that health care employers should not rely only upon their own experiences, knowledge, and assumptions in determining whether to grant or deny an accommodation. They must request and assess medical documentation from the employee's own health care provider if the disability or need for accommodation is not obvious.

Careful with required medical examinations

The EEOC fact sheet suggests strong restrictions on when a health care employee may be required by her employer to undergo a "fitness for duty" medical examination. The EEOC provides the example of a diabetic anesthesiologist who uses an insulin pump and who has never exhibited performance problems at work. Despite the concern over whether he can perform lengthy surgeries due to a possible medical emergency, the EEOC states that requiring a "fitness for duty" examination would violate the ADA since there have been no prior incidents or problems with work performance.

Employers should take special care before requiring a fitness for duty examination to ensure that there are reasonable grounds, and that it is narrowly tailored to the particular situation. The EEOC considers a reasonable basis for belief to include such factors as evidence of current performance problems, complaints by co-workers or patients, or individualized medical information.

Threat to safety must be judged carefully

The EEOC fact sheet suggests that health care employers should not be overly zealous in terminating employees on the basis of threat to public safety. The EEOC provides the example of a HIV-positive phlebotomist who works at a blood bank. The EEOC states that the phlebotomist does not pose a direct threat to the safety of patients and, as a result, his employer should not reassign him or terminate him on the basis of his medical condition.

Don't assume

The EEOC stresses the important of individualized assessments of a particular employee and the danger of categorically assuming that all employees with a certain type of disability are by definition ineligible for a particular job.

While the EEOC's fact sheet does not have force of law, health care employers should nonetheless assume that the EEOC will rely on its guidelines in its ADA enforcement efforts. Risk managers should take this opportunity to review their policies and procedures under the ADA and determine whether they are acting consistently with the statute and the EEOC's guidelines.

Risk managers need to make sure that job descriptions, employment ads, and interview questions will pass EEOC scrutiny. Also, in analyzing future disability accommodation requests, employers in the health care industry should consider any and all possible accommodations before denying a request as unreasonable or unduly burdensome.

[Editor's note: For more information on ADA compliance in health care, contact Narvid by phone at (415) 398-7860 or by e-mail at ln@paynefears.com.]