Nerve conduction studies can lead to ADA violations
Employers are on thin ice when they use nerve conduction studies to screen out carpal tunnel syndrome (CTS) or a tendency to develop the problem, says the federal government’s official in charge of enforcing the Americans with Disabilities Act (ADA). In an exclusive interview with Occupational Health Management, he cautions that workers might have cause to file ADA grievances if the test is used to exclude them from jobs.
The advice comes from Chris Kuczynksi, JD, assistant legal counsel and director of the ADA Policy Division of the Equal Employment Opportunity Commission in Washington, DC. The EEOC oversees interpretations of the ADA. In particular, Kuczynski says, it probably would be a violation of the ADA if an employer rescinded a job offer based on test results that showed the worker has no current CTS but might be likely to develop it in the future.
"You really have to be careful with using this kind of medical exam and then basing decisions on the results," he tells OHM. "You’ve already offered the person a job and said the person is qualified for that job. If you’re then going to do a medical exam and exclude that person, you now have to show that something about the medical exam makes that person unqualified. That won’t be easy."
The Chicago office of the EEOC currently is pursuing a lawsuit on behalf of 110 job applicants at a Rockwell International plant in Centralia, IL, who say nerve conduction studies were used improperly to exclude them from jobs. In a lawsuit filed in December 1995, the EEOC claims Rockwell violated the ADA. The case is pending before a federal court, and its outcome is eagerly anticipated by employers and occupational health providers.
The outcome of the case will determine the future of nerve conduction studies, predicts Alfred Franzblau, MD, associate professor of occupational medicine at the University of Michigan in Ann Arbor, an opponent of using nerve conduction studies to predict future CTS development.
"If the EEOC loses that case, nerve conduction studies will become as common as drug tests in the workplace," Franzblau says. "If employers see that the ADA doesn’t stop them, they’re going to want to use these tests to exclude anyone they think will cost them money for carpal tunnel. But if Rockwell has to pay a small fortune for using the tests this way, employers will back off."
It is difficult to provide simple answers to questions about what is and is not in violation of the law. Many answers would depend on the EEOC’s interpretation of a specific employment situation, often including the employer’s intent when making certain decisions. OHM discussed some of the dilemmas posed by nerve conduction studies with Kuczynski, and he offers these explanations of how employers and occupational health providers can avoid ADA violations:
• Do nerve conduction studies violate the ADA? Not necessarily. Kuczynski explains that the EEOC considers nerve conduction studies to be merely another type of medical exam. The EEOC has no position on the clinical validity of the tests, and the compliance issue is determined by how the employer uses the exam results, not the exam itself.
• Does it matter when the nerve conduction study is performed? Yes. Pre-employment medical examinations and questions regarding disabilities are explicitly prohibited by the ADA. Like other medical exams, the nerve conduction study may be performed only after the worker has been offered the job. That does not necessarily mean the job offer could not be rescinded after the medical exam.
• Who can be tested? Employees and job applicants cannot be singled out for tests that would reveal disabilities. If you wish to use nerve conduction studies, they must be performed on everyone in the same job category. Some employers choose to interpret that broadly and perform tests on everyone in a department, division, or in the entire company. The goal, Kuczynski says, is to treat everyone the same rather than try to pick out the ones you think might have a disability.
• Does CTS qualify as a disability under the ADA? Yes. One aspect of the ADA defines a disability as an impairment that substantially limits a major life activity. Most cases of CTS would qualify as a disability under the ADA, which means the employer is required to make reasonable accommodations.
• Does a slow nerve, suggesting a tendency to develop CTS later, qualify as a disability under the ADA? It depends on how the employer responds to that test result. The person is not disabled under the primary definition used by the ADA because he or she has no current impairment that substantially limits a major life activity. But the worker still may be disabled under the ADA if the employer regards that person as disabled. Kuczynski explains that this is a tricky area for employers. Even if the person is not disabled by any objective measure, the EEOC will consider the person disabled if the employer is treating him or her as if he or she were disabled.
So as far as nerve conduction studies are concerned, how the employer uses the nerve conduction study results can determine whether the person is disabled under the ADA. That determines how the employer is obligated to accommodate the worker. If the employer treats a slow nerve as a disability, that worker is "disabled" under the ADA even if he or she is currently healthy and free of any CTS symptoms or impairment.
Steering a person away from jobs involving repetitive motion, or rescinding a job offer, could be construed as the employer regarding the person as disabled.
• Is it safe to steer non-symptomatic workers away from certain jobs based on the results of a nerve conduction study? It could be done without violating the ADA, but it is a risky policy, Kuczynski says. If the employer has a policy that anyone diagnosed with a slow nerve cannot be placed in a job involving repetitive motion, the employer is treating those workers as disabled. Treating them as disabled means they in fact are disabled as far as the ADA is concerned, regardless of their actual health.
That would trigger the obligation to provide reasonable accommodations so that the worker could take the job originally offered. If such accommodations are not possible in specific situations, it may be acceptable to steer the worker to another job that does not involve repetitive motion. But Kuczynski says the EEOC would frown on a blanket statement that anyone with a slow nerve may not be placed in repetitive motion jobs.
• Can the employer rescind the job offer to someone with no current CTS symptoms, based on the results of a nerve conduction study? That response probably would violate the ADA, Kuczynski says. The ADA does include a provision allowing employers to deny employment to disabled people if employing him or her would pose a "direct threat," meaning a significant risk of substantial harm to the worker or others that cannot be eliminated through a reasonable accommodation. Those criteria would not be met by an employer’s argument that it would be unsafe to put a worker with slow nerve in a job that involves repetitive motion because it probably would lead to CTS.
"You can’t say this might happen or could happen," Kuczynski says. "You have to have some real objective evidence that placing the person in this job would pose a significant risk. [The fact] that a person might conceivably get CTS because of these exam results is speculative. Just because a test suggests someone might get CTS in the future, that doesn’t necessarily mean they will or even speak to the degree of likelihood that they will.
"If the employer is just speculating that this CTS might develop, that certainly is not enough to meet the ADA’s definition of a direct threat."
To meet the ADA requirements and rescind a job offer because of a nerve conduction study showing a slow nerve, Kuczynski says the EEOC would expect substantial evidence that the job placement would result in an injury in a "very short" time frame.
"If you can prove that the worker who currently has no CTS would develop it in six months or a year after taking the position, maybe that would qualify as a direct threat," he explains. "If you say maybe it will develop in 10 or 20 years, that’s not a direct threat. And as far as I know, the test results cannot predict the development of CTS with that kind of accuracy."
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