EEOC Attacks TB Testing Program at Rehabilitation and Nursing Facility

A rehabilitation and nursing company refused to let an employee start working who tested positive on a preliminary Tuberculosis skin test.

In its lawsuit, (EEOC v. Health Partners, Inc., Case No. 2:11-CV-12024), filed in U.S. District Court for the Eastern District of Michigan, the EEOC charged that Health Partners violated the Americans with Disabilities Act (ADA) by refusing to allow an employee to start working after she tested positive for tuberculosis on a preliminary skin test. The EEOC contended that such conduct violates the ADA because Health Partners regarded her as disabled even though she was not contagious and did not pose a direct threat of health risk to patients or co-employees.

Health Partners, Inc., a Southfield, Mich. rehabilitation and nursing company, has agreed to pay $25,000 and conduct training for those employees responsible for hiring in a two-year consent decree.

“The agency’s two-year consent decree provides complete relief to the employee, and also provides protections to future employees,” said Nedra Campbell, the trial attorney who handled the case. “We commend Health Partners for making this commitment to train its hiring personnel at such an early stage in this case.”

Under the Americans with Disabilities Act, blanket policies for all test results are risky, despite CDC recommendations and guidance. To minimize the risk of liability, employers must be able to demonstrate that they have conducted an individualized analysis of the employee's limitations and his/her working conditions and duties. Routinely following "standard" practices or policies may not protect the employer.

In most situations, an employee who tests positive for an infectious condition can likely be excluded from direct patient contact and perhaps from contact with fellow employees. However, if the condition is not infectious or may be handled with "standard precautions," the employer may have no legitimate reason to remove the employee from the workplace.

The best practice to avoid potential ADA claims leads the employer to conduct and document individualized evaluations, not just when it receives requests for accommodations, but when an employee's medical or mental condition appears to be interfering with the safe performance of the employee's duties. Asking the employee for feedback or requests [before a plaintiff’s counsel or the EEOC is involved] can go a long way toward protecting the employer trying to follow CDC guidelines and protect patients and staff.