ADA may require lifts for injured RNs
Lifts may be 'reasonable accommodation'
If your hospital doesn't supply lift equipment to prevent back injuries, you may be purchasing them after injuries occur — as an accommodation under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC) has issued guidance on the ADA that is specifically geared toward health care. It cites examples based on previous court cases that have implications for how hospitals address patient handling needs.
For example, the EEOC says patient lifting might not be an "essential function" of a nurse's job, even if it is in the nurse's job description:
"[L]ifting patients will not be considered an essential function of the position if a registered nurse in that hospital typically spends only minutes per day repositioning patients in their beds, or transferring patients between beds and gurneys or into and out of wheelchairs, and if it is nearly always accomplished in this hospital by two people because the hospital employs orderlies, licensed practical nurses, and nurse's aides whose duties are to assist registered nurses in all patient care activities, including the lifting and transferring of patients."
The EEOC also gives an example of a nursing assistant who injures her back and has a permanent 10-pound lifting restriction. Lifting is an essential function of her job — but the employer must accommodate her restriction:
"She informs her supervisor that she can nevertheless perform all of her duties except for lifting patients, which is an essential function of her position. She requests that the hospital purchase a portable mechanical patient lifting device as an accommodation that would permit her to perform this function. The hospital administrator learns that the hospital can acquire the device for approximately $1,500. The administrator also consults with the hospital occupational health and safety officer who informs the administrator that the device can be used safely and appropriately to perform this employee's duties, and that training in using the device properly will be necessary. Purchase of the device and the cost of the associated training would not pose an undue hardship."
ADA does not require 'undue hardship'
The EEOC issued ADA guidance for health care because of the large employee population and unique aspects of the industry, says Jeanne Goldberg, senior attorney advisor in the EEOC's Office of Legal Counsel. "It's very helpful for employers to see how the rules specifically apply in common situations," she says.
While patient handling presents similar challenges in hospitals, the tasks may be handled in by a variety of employees. "The ADA never requires an employer to eliminate an essential function of a job as an accommodation," Goldberg says.
A court would look at the specifics of how a job was performed in the hospital to determine if lifting is an essential function, she says.
"If it's not an essential function, then the employer may need to excuse the employee from performing it as an accommodation, if it's not an undue hardship. An employer doesn't have to provide any accommodation that's too expensive or disruptive," she says.
However, Goldberg also notes that more hospitals are beginning to purchase lift equipment. "The message here is simply for employers to know — as well as employees in the health care field – that this may be a reasonable accommodation," she says. "It has to be considered where you have someone with a lifting restriction."
The EEOC guidance adds to the momentum that's building for safe patient handling, says Bill Borwegen, MPH, occupational safety and health director for the Service Employees International Union (SEIU). "This is further impetus for employers to adopt comprehensive safe patient handling programs," he says.
Still, it's clearly better to prevent patient handling injuries than to create accommodations after an injury occurs. Injured nurses also may not have the stamina or financial resources to pursue an ADA claim, notes Anne Hudson, RN, a back-injured nurse from Coos Bay, OR, who formed the Work Injured Nurses' Group (WING USA).
"I went to court twice [for a determination that the injury was work-related]," she says. "Every decision in my favor was appealed by the hospital. I had to go back through the system multiple times in order to prevail."
Hudson did not pursue an ADA claim and now works in public health nursing. The EEOC guidance sends an important message, she says, but "great barriers remain to implementation."
(Editor's note: The EEOC's "Questions and Answers about Health Care Workers and the Americans with Disabilities Act" is available at www.eeoc.gov/facts/health_care_workers.html.)
Are you the employer of temp workers? For the purposes of the Americans with Disabilities Act (ADA), hospitals may be considered the employer or joint employer of temporary or contracted workers — and may be required to provide accommodations. Guidance from the Equal Employment Opportunity Commission (EEOC) states that "whether a particular health care worker is an 'employee' covered by the ADA is a fact-based and case-specific determination that depends on a variety of factors." Even if an outside firm pays the employee, the hospital may have joint responsibility to provide accommodations for an employee under the ADA, says Jeanne Goldberg, senior attorney advisor in the EEOC's Office of Legal Counsel. She offers some questions to consider: "Does the hospital control the work that they do and how it gets done? Is there a continuing relationship as opposed to just coming to work to get one task done? Does the hospital have a right to assign additional projects to the worker? Does the hospital set the hours of work and how long the job is going to take?" Both the outside client and the hospital may have "the right to control the means and manner" of the employee's work performance, says Goldberg. "When that is the case, if the individual believes they've been discriminated against, they could file an EEOC charge against both the staffing firm and the hospital as joint employers," she says. |
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