Americans with
Disabilities Act & Health Care Workers –
Guidance from the EEOC
The
Equal Employment Opportunity Commission (EEOC) has recently published a
question and answer fact sheet to help the health care industry apply the
federal Americans with Disabilities Act (ADA) in the health care setting.
While
the ADA applies to employers (with more than 15 employees) in all
industries, the fact sheet is intended to provide guidance for what the
EEOC notes is the largest industry in the U.S. economy, and one with a high
incidence of occupational injury and stress.
In
California,
employers with five or more employees must also abide by the Fair
Employment and Housing Act (FEHA), which has similar but stricter rules
governing disability discrimination.
Topics
discussed in the EEOC fact sheet include:
- Employee versus
independent contractor coverage.
- Defining an
"individual with a disability."
- Determining if a
health care job applicant or employee with a disability is qualified
under the ADA.
- The types of
reasonable accommodation a health care worker with a disability might
need, and limits on employer obligation.
- How to inquire
about medical conditions and the rules governing medical examinations.
- Handling applicant
and employee safety.
Employees versus Independent Contractors
While
federal and state law applies to applicants and employees, it does not
cover independent contractors. However, while many health care workers are
referred to as "independent contractors," the law may view them
as employees or may view you as a "joint employer," giving these
workers all the privileges of disability discrimination law.
Therefore,
it is vital to classify your workers correctly, so as not to open yourself
up to a lawsuit claiming you failed to offer a job or provide reasonable
accommodation when the law says you should have.
The
fact sheet references the EEOC Compliance Manual for an analysis of who is
an employee, provides issues to consider when making the determination, and
examples to in the health care. For more information, visit http://www.eeoc.gov/policy/docs/threshold.html#2-III-A.
Individual with a Disability
Under
federal law, someone is an "individual with a disability" when he
or she:
- Has a physical or
mental impairment that substantially limits one or more major life
activity.
- Has a record of a
substantially limiting impairment.
- Is regarded (or
perceived) as having a substantially limiting impairment.
Major
life activities are those that the average person can perform in the course
of daily life, such as walking, sitting, standing, lifting, reaching,
seeing, hearing, speaking, breathing, eating, sleeping, performing manual
tasks, caring for oneself, learning, thinking, concentrating, interacting
with others, and working.
State
law goes further, protecting the perception that an applicant or employee
has a disability, and protects employees who are limited in a major life
activity condition versus substantially limited as required by federal law.
The
fact sheet provides examples of health care workers with disabilities to
illustrate whom employers may have to consider "disabled" under
the law.
"Qualified" to Perform the Job
A
key tenet of disability discrimination law requires matching the essential
functions of a given job together with an individual qualified to perform
it, without regard for a perceived or actual non-job-related disability. In
other words, if the disability doesn’t interfere with the job itself, it
should not factor into any employment decision.
The
fact sheet states, "…an individual must satisfy the requisite skill,
experience, education, and other job-related requirements… with or without
reasonable accommodation." Further, "if a job requirement
excludes a health care worker from a position due to a disability, the requirement
must be job-related and consistent with business necessity."
The
fact sheet provides examples of workers in the health care industry who may
need reasonable accommodation to perform their job-related duties.
Reasonable Accommodation
The
EEOC fact sheet goes to some length to illustrate for health care employers
what is one of the central concepts of disability discrimination law, that
of offering reasonable accommodation for workers who need help to perform
their jobs.
According
to the fact sheet, "reasonable accommodation is any change or
adjustment to a job or work environment that permits a qualified applicant
or employee with a disability to participate in the job application
process, to perform the essential functions of a job, or to enjoy benefits
and privileges of employment equal to those enjoyed by employees without
disabilities."
It
is worth noting that an employer does not have to provide reasonable
accommodation unless asked. But, if an applicant or employee does ask, it
can be an informal request, either written or oral, and does not have to
use the term "reasonable accommodation" to invoke protection of
the law.
Once
an applicant or employee has requested help, the health care employer is
obligated to engage in an "interactive process" to elicit
suggestions and discussion about how best to accommodate the individual
needing help.
The
fact sheet goes on to illustrate the circumstances in which an employer may
deny a requested accommodation because it is too difficult, disruptive, or
expensive to provide.
Safety Considerations
According
to the EEOC, "an employer may exclude an applicant or employee with a
disability from a particular position if that individual would pose a
direct threat to health or safety. ‘Direct threat’ is defined as a
significant risk of substantial harm… that cannot be reduced or eliminated
through reasonable accommodation."
Safety
considerations include:
- The duration of
the risk.
- The nature and
severity of the potential harm.
- The likelihood the
potential harm will occur.
- The imminence of
the potential harm.
Once
again, you must engage in a dialog with the applicant or employee to make
the determination. The EEOC fact sheet stresses the assessment must be
individualized, and not based on a categorical assumption that all
applicants or employees with a certain type of disability by definition are
ineligible for employment.
Medical Information
Federal
and state law strictly limit an employer’s access
to and use of medical information about applicants and employees. How much
information you may obtain, and under what circumstances, depends upon the
stage of the employment relationship.
In
most instances, federal and state law prohibit
asking any disability-related questions or requiring a medical examination
before making a conditional employment offer. You must evaluate all
non-medical information regarding an applicant first, and then you may make
an employment offer conditional upon successful completion of a medical
exam.
After
making a conditional job offer, but before employment starts, you may
require a medical exam if everyone in the same position must also take the
same exam. This establishes that everyone is treated the same, regardless
of a perceived or actual disability.
You
may then withdraw a job offer if the results of a medical exam show that
the individual would either not be able to perform the essential functions
or pose a "direct threat" to workplace safety, even with a
reasonable accommodation.
Things to Consider
The
EEOC fact sheet draws upon a number of court cases that have been decided
since the passage of the ADA.
The examples are particularly relevant to the health care environment, and
you should consider them carefully when planning your staffing efforts.
- Make sure you
designate your workers correctly as either employees or independent
contractors. When in doubt, err on the side of caution and treat the
individual as though he or she were an employee.
- Have up-to-date
job descriptions for all positions in your facility, which explicitly
define the essential, "job-related" functions of the job.
These will help you determine which applicants are qualified to
perform the job, and who may need reasonable accommodation.
- Engage in an
active dialog with applicants and employees, first making sure
qualifications match the requirements of the job, and later, if
necessary, to determine whether additional assistance is needed.
- Make workplace
safety a priority. Health care workers are particularly vulnerable to
workplace hazards, so make sure your procedures are in place and that
everyone follows them. By becoming familiar with the special hazards
of your work environment, you can also better determine when an
individual’s disability may pose a direct threat to safety.
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