Legal Updates

New EEOC Disability Guidelines For Health Care Organizations

New guidelines on applying the Americans with Disabilities Act (“ADA”) in the health care setting provide important clarification regarding the nature and scope of “reasonable accommodations” for disabled health care workers.  The United States Equal Employment Opportunity Commission (“EEOC”) recently published Questions and Answers About Health Care Workers and the Americans With Disabilities Act (the “Q&A”), which provides numerous real world examples of ADA “Dos and Don’ts” based on published court decisions and cases that the EEOC has prosecuted and settled.  We suggest that the Q&A be recommended reading for all human resources professionals serving health care organizations.

As the basis for publishing the Q&A, the EEOC stated that health care is the largest industry in the American economy, providing more than thirteen (13) million jobs in 2004 and expected to account for nineteen (19) percent of all new jobs created between 2004 and 2014.  Moreover, the health care industry has a high incidence of occupational injury and illness because health care jobs often involve potential exposure to airborne and bloodborne infectious disease, sharp injuries and other dangers.  In addition, many health care workers with occupational or non-occupational illness or injury may face unique challenges because of societal misperceptions that qualified health care providers must themselves be free from any physical or mental impairment.

Although the Q&A addresses all elements of an ADA claim, as well as key compliance issues, its illustration of potential “reasonable accommodations” is particularly instructive.  In this regard, the EEOC explains that reasonable accommodations at health care organizations may, under appropriate circumstances, include the following:

• Altering workplace facilities (e.g., installing a vent in a darkroom to alleviate a radiology technician’s asthma and chronic sinusitis);

• Acquiring modified equipment or devices (e.g., providing an amplified stethoscope or vibrating pager to a physician with a hearing impairment);

• Eliminating or reassigning marginal functions of a job (e.g., eliminating duty to escort patients to and from a waiting room relative to a physician with a limited ability to walk);

• Making a schedule change (e.g., excusing a nurse with a sleep disorder from a shift-rotation requirement);

• Allowing use of paid and/or unpaid leave (e.g., permitting a nurse to use a combination of paid and unpaid leave when a disability flare-up renders her unable to work);

• Allowing exceptions to work policies (e.g., permitting a diabetic patient service technician to take breaks above and beyond those provided by hospital policy in order to monitor his blood sugar and, if necessary, eat a snack to regulate his blood sugar and insulin levels); and

• Reassigning a worker to a vacant position (e.g., reassigning a nurse who could no longer perform his or her current position even with a reasonable accommodation to a vacant administrative staff position, where the reassignment does not involve removing another employee, disrupting a seniority system not subject to exceptions, or placing the nurse in a higher level job).

Through its many examples, the EEOC’s Q&A also addresses such sensitive issues as taking employment actions against physicians who come to work under the influence of illegal drugs or alcohol and determining whether HIV-positive employees pose a direct threat to the health or safety of others, thereby warranting their lawful exclusion from certain positions.  The Q&A also provides useful guidance about, among other things, disability-related inquiries, medical examinations, and drug and alcohol testing.

We would be happy to provide you with a copy of the EEOC Q&A, or to assist with any ADA-related claims or compliance inquiries that you may have.