The EEOC recently published a question and answer (Q&A) fact sheet on the application of the Americans with Disabilities Act (ADA) to employees and job applicants in the health care industry.
The EEOC recently published a question and answer (Q&A) fact sheet on the application of the Americans with Disabilities Act (ADA) to employees and job applicants in the health care industry. Although the requirements of the ADA are the same for health care employers as for other types of employers, the fact sheet is designed to address some problems that are unique to the health care setting. According to the EEOC, many of the scenarios in the fact sheet are based on cases that have been decided by courts or settled by the EEOC. The fact sheet is available on the EEOC’s web site at: http://www.eeoc.gov/press/2-26-07.html.
The fact sheet does not have the force of law, but it does provide insight into the EEOC’s position on the issues addressed. The fact sheet includes discussions on the following topics:
- when someone is an “employee” covered by the ADA (as opposed to an independent contractor);
- when someone is an “individual with a disability” under the ADA;
- how to determine if a health care applicant or employee with a disability is qualified for ADA purposes;
- what types of reasonable accommodations health care workers with disabilities may need and the limitations on a health care employer’s obligation to provide reasonable accommodation;
- when an employer may ask health care applicants or employees questions about their medical conditions or require medical examinations; and
- how a health care employer should handle safety concerns about applicants and employees.
Some issues addressed by the fact sheet that may be particularly problematic for health care employers include:
Lifting Restrictions: The fact sheet suggests that for some registered nurse positions, lifting may not be an essential function of the job, depending on how much time each day the RN spends on this duty and whether it is always done by two people because other hospital employees’ job duties include assisting RNs in patient care activities. However, the agency cites two court cases that have addressed this situation; one that found lifting was not an essential function of an RN’s job and another that determined that it was, based on the particular facts involved in those cases. Thus, employers should ensure that the duties defined as essential functions in all positions accurately reflect the actual requirements of the job. Merely including a duty in a job description does not necessary mean it will be considered an essential function.
The fact sheet also addresses the issue of lifting restrictions in the context of a request for reasonable accommodation. According to the EEOC, it may be a reasonable accommodation for a hospital to purchase a lifting device to enable a nursing assistant to lift patients. In this example, the device would cost approximately $1500 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. In support of this example, the EEOC cites an article in OSHA’s Job Safety & Health Quarterly, in which a nursing home reduced on the job injuries by requiring all resident lifts and transfers to be performed with lifting devices unless a supervisor specifically permitted manual lifting. Thus, what might seem to be an unreasonable demand or undue hardship might be viewed as reasonable by the EEOC, especially if other health care employers have implemented similar measures.
Direct Threat to Health or Safety: The fact sheet emphasizes that a determination of whether a direct threat exists must be made based on an individualized assessment of the employee’s present ability to safely perform the essential functions of the job and not on speculation regarding the effect of the impairment. For example, according to the EEOC, HIV-positive employees in certain types of positions, including drawing blood in a blood bank and working as nurses’ aides in a nursing home, would not pose a direct threat to health or safety if they follow universal precautions.
Schedule Changes: The EEOC states that it may be a reasonable accommodation to permit a nurse to work a fixed schedule rather than rotating shifts, even though other nurses are required to work rotating shifts. The agency acknowledges, however, that if the shift change requires reassignment to a vacant position to which another employee has rights under a seniority system, the reassignment may not be a reasonable accommodation. The EEOC also notes that even when seniority is involved, an employer (and a union if a collective bargaining agreement exists) should determine whether exceptions to the seniority system exist or have been made in the past that would justify providing a reassignment needed as a reasonable accommodation.
Employers’ Bottom Line:
The EEOC’s fact sheet does not impose new requirements on health care employers, but it does illustrate the agency’s pro-employee position on most of these issues. The fact sheet may also be an indication that the EEOC will be focusing on health care employers to ensure compliance with the ADA’s requirements.
The scenarios in the fact sheet illustrate that the determination of whether there has been a violation of the ADA requires a fact-specific analysis of every issue: whether someone is a qualified individual with a disability; whether a duty is an essential function of a job; whether an accommodation is reasonable; whether someone presents a direct threat to health or safety; and whether an accommodation is an undue hardship. Thus, it is important for health care employers, like all employers, to be able to show that they have engaged in an interactive dialogue with an employee requesting a reasonable accommodation. By doing so, the employer should be able to show that its decision was based on an individualized assessment of the employee’s particular factual situation and not on preconceived notions regarding the limitations of the employee’s impairment.
If you have any questions regarding the EEOC fact sheet, the ADA, or labor or employment-related issues in general, please contact the Ford & Harrison attorney with whom you usually work.