Guidance offered on health-care workers and the ADA

Like workers in other industries, health-care employees who have physical and mental disabilities are entitled to protection from discrimination under both the federal Americans with Disabilities Act and New Hampshire’s Law Against Discrimination.

How does an employer reconcile a worker who has a disability and requires reasonable accommodation with the needs of the medically fragile patients for whom the worker is responsible to care?

To address the particular challenges health-care employers face under the ADA, the Equal Employment Opportunity Commission recently issued detailed guidance entitled “Questions and Answers About Health Care Workers and the Americans With Disabilities Act.”

The guidance draws on the EEOC’s experience in settling workplace disputes in the health care field. Through the use of real-world examples unique to health-care settings, the EEOC addresses many of the major questions under the ADA.

(The full guidance can be found at www.eeoc.gov/facts/health_care_workers.html.)

The guidance covers a wide variety of workers and workplaces in the health-care industry. The occupations in the field are numerous, from doctors, nurses, pharmacists, personal care aides and mental health workers to food service/maintenance workers and administrative professionals and staff.

As of Jan. 1, the New Hampshire Law Against Discrimination has required employers with six or more employees to provide reasonable accommodation to qualified disabled employees. The language of the amendment is very similar to the ADA, and presumably the New Hampshire agency and courts will look to the guidance and the EEOC’s other interpretations of the ADA when it is ruling on cases under the New Hampshire law, even for small employers.

Job descriptions

A major concern among health-care employers is whether an applicant or employee with an impairment is “qualified” to do the job. To be qualified under the ADA, an individual must be able to perform the job’s essential functions with or without reasonable accommodation. Determining whether a job duty is an essential function is a fact-specific inquiry.

For example, a nurse’s job description may state that lifting patients is a duty of the job. Lifting patients, however, will not be considered an essential function if a nurse typically spends only minutes per day repositioning patients in their beds, or transferring patients into and out of wheelchairs — especially if this is nearly always accomplished by two people, such as orderlies whose duties are to assist nurses in all patient care activities.

The guidance suggests that this nurse, who has a lifting restriction due to a physical impairment, is still qualified to do the job and is entitled to reasonable accommodation.

In another example, the guidance states that an applicant who has paraplegia and uses a wheelchair is able to perform the essential functions of the position of patient access technician. The job involves greeting patients and their families, obtaining patient data and entering it into the computer, moving patients to their next location, and moving among patient hospital rooms to check on their status.

As long as the applicant has the requisite education, experience and skills, and has the ability to push others in wheelchairs satisfactorily and safely, she is qualified to do the job, even though she uses a wheelchair herself.

Unique concerns

Allergies to materials such as latex and fumes and chronic respiratory conditions can be common among health-care workers. The guidance describes what an employer’s obligations would be in one scenario: a radiology technician has asthma and chronic sinusitis that are aggravated by her exposure to chemicals in the darkroom where she works. If she begins to experience headaches, dizziness, breathing problems, and/or other symptoms while performing her job, the employer should have an industrial hygienist evaluate the darkroom and conduct airflow testing, and also should implement the hygienist’s recommendations, such as installing a vent, and providing the worker with a respirator mask for her to wear while in the darkroom.

Health-care employers oversee workplaces that raise unique safety questions and concerns. Under the ADA, an employee or applicant with a disability may be excluded from employment if the employee would pose a direct threat to health or safety. However, an employer must be able to show a clear threat based on the most current medical knowledge rather than on speculation.

For example, the guidance states that a phlebotomist at a blood bank who is responsible for drawing blood cannot be excluded from her job or reassigned to another job because she is HIV-positive, since there is ample evidence that if the worker uses universal precautions she does not pose a direct threat.

The guidance also contains fact-based answers to many questions about health-care workers who are alcoholics or who abuse drugs. It also provides helpful information about what types of medical information an employer can obtain from an applicant or employee and how must the information be used and maintained.

The guidance does not carry the force of law, but following its recommendations in similar situations is helpful evidence that the employer made a serious effort to comply with the law. The guidance also provides indications of how the EEOC will enforce the ADA in similar circumstances.

While the guidance addresses many questions under the ADA in the context of the health-care workplace, it does not provide any specific recommendations on how to overcome the myth that health-care workers must not be disabled themselves or how to allay patient fears or stereotypes. The purpose of the ADA is to make work places in all fields as accessible as possible so that those qualified individuals with disabilities can disprove the myth and the stereotypes by simply doing their job.

Andrea G. Chatfield is a member of the Employment Law Practice Group and the Corporate Department at the law firm of McLane, Graf, Raulerson & Middleton. She can be reached at 603-628-1341 or andrea.chatfield@mclane.com.