• The Healthy Employer: Miracle Drug or Overdose? The EEOC's New Treatment of Healthcare Workers and the Americans with Disabilities Act
  • March 6, 2007 | Author: Mark W. Peters
  • Law Firm: Waller Lansden Dortch & Davis, LLP - Nashville Office
  • On Feb. 26, 2007, the Equal Employment Opportunity Commission issued "Questions and Answers about Health Care Workers and the Americans with Disabilities Act." Revealing a significant bias against healthcare employers, the EEOC's Q&A Fact Sheet takes an aggressive stance interpreting the ADA and its reasonable accommodations requirements, thereby signaling its intent to increase enforcement efforts in the healthcare industry. Why does the EEOC focus on healthcare employers and what does it mean for your facility?

    Healthcare is the largest industry in the American economy, employing more than 13 million individuals. Ironically, despite their focus on making people well, healthcare workers are nearly twice as likely to be injured in the workplace - and therefore potentially protected under the ADA - than workers in any other industry. At least one regional attorney for the EEOC diagnosed healthcare employers as having "special knowledge about disabilities that puts them in leadership roles among employers, and they should be especially sensitive to this."

    According to the EEOC, certain impairments more commonly occur in the healthcare field or, regardless of cause, present particularly challenging accommodation issues in the healthcare context. The RN who cannot lift more than two pounds but wants to work in the OB/GYN department, the LPN who is depressed and forgets to chart timely in the MAR and the pharmacist whose eyesight makes it difficult to read the pharmacological charts correctly are all too common examples of situations that arise in the healthcare work place. Resolving the attendant disability and accommodation issues of each, literally, can mean the difference between life and death for a patient.

    While much of the Q&A is consistent with prior EEOC Enforcement Guidance, there are several areas where the EEOC provides new treatment:

    Job Descriptions and Essential Functions

    Recognizing that an employer's judgment and a written job description prepared before advertising or interviewing for a job position will be considered as evidence of essential job functions, the EEOC Q&A notes that "lifting" may not be "essential" to a registered nurse position if it is nearly always accomplished with the assistance of others.

    Practical Tip: Review job descriptions to ensure that they describe accurately the essential functions of the job. If lifting is performed only occasionally and with the help of others, be wary of disqualifying an individual with lifting restrictions.

    Reasonable Accommodations

    The majority of the Q&A focuses on accommodations, using a number of examples of what is and what is not reasonable. Notably, the EEOC takes the position that a healthcare employer may be required to purchase a "portable mechanical lifting device" as an accommodation to an employee with lifting restrictions to enable her to perform the essential function of lifting patients. The EEOC concludes that purchasing such a device and the costs of associated training would not pose an "undue hardship" on the facility.

    Practical Tip: Before denying a requested accommodation as unreasonable or unduly burdensome, engage in an interactive, good-faith discussion with the employee by exploring the costs of the requested accommodation, the effects on patient care and safety, the interruptions in business and whether other less-costly or less-intrusive accommodations are reasonable alternatives.

    Direct Threat to Safety

    In its Q&A, the EEOC recognizes the "unique safety questions and concerns" that can arise in the healthcare workplace from the disability of an applicant or employee. It notes, however, that supervisors in the healthcare industry often rely upon their own experience and knowledge as medical professionals in determining whether a direct threat exists or whether to grant or deny an accommodation.

    Practical Tip: When determining whether a direct threat exists or a requested accommodation should be granted, healthcare employers should obtain and assess medical documentation from the employee's own healthcare provider. Employers should avoid making decisions based upon the supervisor's perceptions that the employee should follow a different treatment regimen or does not need a requested accommodation.

    The EEOC's Q&A Fact Sheets and Enforcement Guidance do not have the force of law. The EEOC, however, will view them as the law and we can expect to see an increase in the number of "reasonable cause" determinations. Employers should consider taking the issuance of the new Q&A Fact Sheet as an opportunity to review ADA procedures. Compliance with the ADA is a complex process and there is no doubt that the EEOC, the Department of Labor and various unions are treating healthcare employers differently and with more scrutiny than ever before. Taking the time now to review procedures and to understand what is being prescribed for the healthcare industry will save healthcare employers time and money in the future. Otherwise, the warning signs of a potentially harmful poison may be missed.