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Legal Update
Keep Your Staff Safe on the Job
Mark Peters
Publish Date: October 10, 2007

Your staff - and the rest of the nation's 13 million healthcare workers - are twice as likely to be injured on the job than workers in any other industry. Because your injured workers are potentially protected under the Americans With Disabilities Act, you should be aware that the Equal Employment Opportunity Commission is taking aim at healthcare facilities that it deems lax in fulfilling their duties to ADA-protected workers.

Setting an example
A recent government guideline, "Questions and Answers about Health Care Workers and the Americans With Disabilities Act," issued in February, reveals a significant bias against healthcare employers and aggressively interprets the ADA and its reasonable accommodations requirements. In short, the fact sheet signals the EEOC's intent to increase enforcement efforts in healthcare.

Essentially, the EEOC is making an example of healthcare. First of all, it's arguably the largest sector of the American economy - if other industries are to be expected to comply, healthcare can't be allowed special treatment. Second, the EEOC notes that healthcare employers have "special knowledge about disabilities that puts them in leadership roles among employers, and they should be especially sensitive to this." In other words, healthcare employers, of all people, should know better.

Further, according to the EEOC, certain impairments occur more commonly 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 depressed LPN who forgets to chart time in the medical administration record 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 workplace. Unlike in most other industries, resolving the attendant disability and accommodation issues of each case can literally mean the difference between life and death for the consumer - your patients.

While much of the EEOC Q&A is consistent with its prior enforcement guidance, there are three areas where it 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 an RN position if it's nearly always accomplished with the assistance of others.

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

Reasonable accommodations: The Q&A focuses primarily on accommodations, using a number of examples to illustrate what are and what aren't reasonable accommodations. Notably, the EEOC takes the position that you may be required to purchase a "portable mechanical lifting device" to accommodate an employee with lifting restrictions so that she may perform the essential function of lifting patients. The EEOC concludes that purchasing such a device and the costs of associated training wouldn't pose "undue hardship."

How to handle: 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.

On the Web

View "Questions and Answers about Health Care Workers and the Americans with Disabilities Act" at writeOutLink("www.eeoc.gov/facts/health_care_workers.html",1).

Direct threat to safety: To its credit, the EEOC does recognize the "unique safety questions and concerns" that can arise in the healthcare workplace from the disability of an applicant or employee. However, it notes, 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. This isn't necessarily the best tack.

How to handle: When determining whether a direct threat exists and whether to grant a requested accommodation, review medical documentation from the employee's own healthcare provider. Avoid making decisions based on the supervisor's perception that the employee should follow a different treatment regimen or doesn't need a requested accommodation.

Comply with what's being prescribed
The EEOC's Q&A fact sheets and enforcement guidance don't have the force of law, but the agency does view them as such, meaning you can expect to see the number of "reasonable cause" determinations increase. Therefore, you should consider the issuance of the new Q&A fact sheet as an opportunity to review your ADA procedures.

ADA compliance is a complex process, and there's 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 your industry will save you time and money in the future.

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