There are exceptions to the ADA
While the Americans With Disabilities Act (ADA) was passed into law nearly 10 years ago, much confusion and discussion remain about the intent of the law and its application in the real world. However, with a June 10 ruling, the U.S. Supreme Court has helped clarify at least one contentious issue.
In its unanimous ruling on Chevron USA v. Echazabal, the court determined the ADA does in fact permit the Equal Employment Opportunity Commission (EEOC) regulation stating that a person can be refused employment because of a disability that might endanger that employee’s health.
Mario Echazabal worked for independent contractors at a refinery owned by Chevron. He twice applied for a job directly with Chevron, but each time the exam showed liver abnormality, which was eventually traced to hepatitis C. Chevron withdrew the offer to hire him, believing his condition would be worsened by continuing exposure to toxins at the refinery. Echazabal filed suit, saying that Chevron violated the ADA by refusing to hire him due to a disability — his liver condition.
Blood tests taken as part of the job application process revealed abnormalities that suggested a condition affecting liver function, explains Tim Bridge, MD, MPH, MBA, director of medical services for Chevron Texaco Corp. in San Ramon, CA. "It was significant enough that when the doctors first looked at it and retested, [the findings] persisted. This gave us concern that he might be at some risk of potential exposure at the plant."
Bridge notes that not only was retesting done, but that Chevron corresponded with the employee’s personal treating physician, who determined the findings were persistent. "Ultimately, based on work limitations, we couldn’t employ him in the job he was seeking," he explains.
The global meaning of the Supreme Court ruling, according to Bridge, is that "it clearly states that there is reasonable cause for an employer to deny employment if there is significant information about risk to self."
An ethical issue
At the root of the case, argues Gary Rischitelli, MD, JD, MPH, is an ethical issue: How can an occupational health physician not make a recommendation to deny employment when he or she has good reason to believe the worker would be self-injured? Rischitelli, an assistant scientist at the Center for Research on Occupational and Environment Toxicology at Oregon Health and Science University in Portland, worked with the American College of Occupational and Environmental Medicine (ACOEM) in filing an amicus curiae, a legal argument filed by someone not actually involved in the case but who has an interest in its outcome .
"While ACOEM did write an amicus brief, it didn’t really focus on the specific issues in this case, but was more concerned with global issues like whether it was appropriate to decline to place an employee or remove him from a position where he is at significant risk of self-injury," Rischitelli notes. "We knew this case was coming. Clearly there was a difference between the substance of law, the EEOC’s regs and what had been accepted practice in occupational medicine. We’ve always felt it was appropriate to either decline to place or remove a worker who was at risk."
Such a case, he further explains, involves protecting a worker even when he or she may not want to be protected. "There is a major tension in medicine — you have to balance beneficence, helping your patient, with paternalism," says Rischitelli. "Also, there is a question as to whether the worker is making an informed choice. The issues may be so complex they don’t understand the risk, or economic pressures may cloud their judgment."
The ruling was made a bit more difficult because, says Rischitelli, the Chevron case did not present a most extreme example — for instance, a person with epilepsy seeking to be a high-voltage lineman. "I knew they would have to make a tough argument, because there were a couple of legal doctrines involved," he says. "It looked like the ADA was plain on its face, but while it covered a number of categories it was obvious it left out some others. The court came up with a decision that basically reinforced the premise that agencies do have some measure of discretion, and that the EEOC was within its discretion to put that regulation in there. That was the outcome we wanted."
A fit with occ-health
The Supreme Court ruling should be welcomed by occupational health professionals, says Deborah V. DiBenedetto, MBA, RN, COHN-S, ABDA, president of the Atlanta-based American Association of Occupational Health Nurses (AAOHN). "We have always had separate ratings for job applicants — A’ for no restrictions, B’ for restrictions that could be corrected, C’ for unfit for duty," she notes. "This employee’s own private doctor said working in the refinery could add damage to his liver."
DiBenedetto says it was never the intention of the ADA that employers should hire at-risk applicants as long as the applicant insisted on having the job. "In that case, the employer would have to take on the burden of assuming the health risk, plus the cost of an adverse event, workers comp, and so on," she points out.
It’s important, she adds, that employers have qualified medical professionals conduct such screenings and not let human resources take on these issues themselves. "Seek the advice of qualified occupational medicine professionals, and also coordinate with the private physician and seek their opinions if needed," she recommends.
However, the reality, DiBenedetto notes, is that many organizations do not have a company doctor. "In that case, if someone doesn’t [disclose a pre-existing condition], then the employer never knows, which could be another issue as well," she says.
Should this ruling impact the way occupational health professionals do their jobs? "It reaffirms the fact that if someone has an active medical problem or condition that could be exacerbated by job conditions or exposures, they may not necessarily be qualified to get the job — and the ADA would not protect them," she says. "After all, who is the law really meant to protect? If the job could harm you, then you are not protected under the ADA."
The ruling gives occupational health professionals more ammunition, DiBenedetto continues. "Otherwise, let’s say someone had severe hearing loss and worked in a very noisy environment — even with protection they could end up profoundly deaf. The right answer in terms of hiring could be No.’ In an even more obvious case, such as cardiac disease, the applicant could go into a job that is heavily taxing in terms of physical requirements, and they could have a heart attack. This ruling says you don’t have to hire them, which reaffirms what we should have been doing all along."
Bridge agrees. "I think it is a supportive ruling in that it says there is a justification and validity in the judgment of health professionals around fitness for duty," he notes.
There’s another important consideration that arises from determining fitness for duty, says DiBenedetto. "Such screening is not just to catch drug abusers. This is for the well-being of the individual and the company’s work force," she says. "Employers have no problems hiring people who are qualified and healthy, even if there is an active chronic condition."
"I guess the way people have been practicing [fitness for duty screenings] is with the premise in their minds that their judgments will be supported," adds Bridge. "This case centered around a question of that judgment. This case says that the then currently available or best available information is a reasonable judgment. It at least creates a clearer stage for the environment in which these opinions are made."
Trouble down the road?
With many more aspects of the ADA remaining unresolved, Bridge sees other potential issues in the future. "One thing this ruling makes clear is the court wants to define the ADA statute in rather strict boundaries, so these opportunities to construe it in very broad ways, particularly around job restrictions, are unsupported," he offers. "They tried to be true in their minds as to what they felt the intent of the ADA was, which was to address arbitrary and unilateral decisions that preclude employment.
"So much case law now exists around physical limitations and the ADA, I suspect a more long-term concern may be genetic testing," Bridge continues. "If this ruling says it is OK not to employ someone who is putting himself at risk, how far can you carry that? In this case it was a disease that at first was acute but later became chronic. But what about a case where someone has a genetic marker and epidemiology says that in 10-20 years, they are more likely to have XYZ condition? I personally wonder if the law might be stretched out in an attempt to give license to do something the ADA was not at all intended to address. I’m pretty sure the justices did not have that in mind, and my personal opinion is that as conservative as they are they would not support that."
DiBenedetto does not see that as a real danger. "We should not use genetic testing in employment decisions, and HIPAA [Health Insurance Portability and Accountability Act] is very clear on this. Such information must be kept confidential," she says.
There are other issues, however, that do concern her. "We have good examples on reasonable accommodation, but mandatory overtime still needs to be addressed," she asserts. "Employers are requiring additional work hours, and employees with chronic conditions may say they can do the job but not with the extended hours. I think this should be considered: Does someone have the ability to continually do the same type of thing?"
As for Rischitelli, he offers this closing caveat: "The main message of the ruling is, if you are going to deny employment on the basis of risk to self, you’d better have a good basis for doing it," he says. "You still have the ability to exclude a worker, but the Chevron case is now going back into court to see if there was sufficient evidence. You must meet two burdens of proof. First, is there a significant risk? Then, you have to show there is a risk for substantial harm — not something like getting a rash. You also have to show it is a non-accommodatable risk."
In addition, he points out, the EEOC says that the decision has to be made on the best available scientific evidence. "So you don’t want an opinion-based decision," he warns. "You want an evidence-based decision, one based on solid data."
[For more information, contact:
• Deborah V. DiBenedetto, MBA, RN, COHN-S, ABDA, and Ann R. Cox, MN, RN, CAE, American Association of Occupational Health Nurses, 2920 Brandywine Road, Suite 100, Atlanta, GA 30341. Telephone: (770) 455-7757. Fax: (770) 455-7271. Web site: www.aaohn.org.
• Tim Bridge, MD, MPH, MBA, Director, Medical Services, Chevron Texaco Corp., Chevron Park E1028, San Ramon, CA 94583. Telephone: (925) 842-3159. Fax: (925) 842-3242. E-mail: [email protected].
• Gary Rischitelli, MD, JD, MPH, Assistant Scientist, The Center for Research on Occupational and Environmental Toxicology, Oregon Health and Science University, 3181 S.W. Sam Jackson Park Road, L606, Portland, OR 97201-3011. Telephone: (503) 494-4398. Fax: (503) 494-4278. E-mail: [email protected].]
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content