Be aware of ADA in your employment practices
Legal experts say most businesses violate the act
True or false:
* When interviewing a potential employee who is in a wheelchair, you can ask whether she was disabled by a disease or an accident.
* On an employment application, you can ask a new hire if he has ever filed for workers' compensation.
* You can ask job applicants to list on the employment application all of the prescription drugs they are taking.
If you answered true to any of the proceeding questions, you probably need to review the employment guidelines of the Americans With Disabilities Act (ADA).
Most employers run afoul of the ADA in their employment applications, interviews, and employee handbooks, legal experts say. Even if unintentional, violating the ADA can expose a health care organization to civil suits, fines, and other sanctions.
"It is extremely rare that we find one of our clients to be totally in compliance with the law," says Robert Gault, a partner with the law firm Mintz, Levin, Cohn, Ferris, Glovsky & Popeoin Boston. "Something usually needs to be corrected."
Update your forms, training
Most businesses try to comply with the ADA, Gault notes, but their forms and training sessions often do not keep up with the law. In addition, the far-reaching provisions of the ADA make compliance "a very, very difficult task," Gault says. This difficulty typically is reflected in employment applications and interviews in which applicants are asked questions that violate the ADA.
For health care institutions, the special requirements of the industry often makes compliance with the ADA difficult. Legal experts urge risk managers to familiarize themselves with the ADA and to review their employment practices for compliance.
To whom does the ADA apply and who does it protect? Virtually everybody, legal experts say. Any business with 15 or more employees must comply with the anti-discrimination provisions of the ADA. Thus, nearly every health care institution is subject to the law.
The definition of a disabled person under the ADA is equally as broad. The law defines a disabled person as someone who suffers from a physical or mental impairment that substantially limits one or more life activities. These impairments can include anything from eating and breathing disabilities to speech impediments and cosmetic disfigurement, explains John Lyncheski, JD, a partner with the law firm Cohen & Grigsby in Pittsburgh.
The definition is so broad that it not only applies to people with disabilities, but to those who have records of having such disabilities in the past and to those who may be perceived to have a disability, Lyncheski says. What does the ADA prohibit?
The ADA prohibits an employer from discriminating in hiring a disabled person who is able to perform the essential functions of a job with or without accommodation unless the accommodation would cause undue hardship or pose a direct threat to the health or welfare of another worker. Proving undue hardship or direct threats is very difficult, Gault says.
What the ADA does not require
Though far-reaching, the ADA does not require an employer to hire unqualified employees or reduce its standards. For example, a disabled person cannot invoke the ADA to be hired as a nurse if he or she is not a nurse. Similarly, a hospital does not have to lower its standard of requiring a member of its housekeeping staff to clean 15 patient rooms a day in order to comply with the ADA when hiring a disabled housekeeper.
"You have to be qualified from the beginning," Gault says. The ADA also does not guarantee work in a specialized area either. For example, a surgical nurse with a latex sensitivity is likely to be considered disabled under the law. But if the latex sensitivity prevents the nurse from wearing gloves, she cannot necessarily claim that her rights under the ADA are violated if she is not hired to work in the operating room.
She may have a claim, however, if the hospital refuses to consider her for other nursing work in the hospital where latex gloves are not required, Lyncheski explains.
So what should you do to make sure your health care organization is not violating the ADA? Here are recommendations:
* Review job descriptions, advertisements. Begin by reviewing all of your job descriptions and any outstanding help-wanted advertisements or notices, Gault says. The ADA requires hiring a disabled person if they are the best candidate for the job and are able to perform it.
To minimize any possibility of confusion over whether a candidate is qualified for a job and thus the likelihood of a claim under the ADA, Gault suggests rewriting all job descriptions and advertisements to include only the essential or basic requirements of the position.
Keep job descriptions simple
This type of description will eliminate any unfavorable presumptions about discrimination, Lyncheski says.
* Think before you speak. When a job candidate with a disability applies for a position, it is important to keep the conversation focused on the job requirements at hand and the applicant's ability to meet them.
Anyone on the staff who may interview prospective employees must learn that a well-intended question about the nature of someone's disability can still be the source of a lawsuit under the ADA. The employer can ask a disabled employee to demonstrate how he or she would perform the function. But proceed with caution. (See the related story on p. 104.)
"You cannot ask if they are disabled," Lyncheski advises. "But if they are obviously disabled and look like they cannot perform the essential functions, you can ask them to demonstrate how they would do it."
* Don't make casual assumptions. "You cannot assume, however, that a disabled individual cannot perform the functions of the position," he adds. If a disabled person can perform the essential functions despite the disability, the ADA prohibits an employer from considering the disability in a hiring decision.
Screening can only be done on the basis of the individual's ability to perform the core requirements of the position. The ADA also requires employers take the additional step of providing accommodations to a disabled individual to help him or her perform the job, Lyncheski says.
For example, if a wheelchair-bound person is applying for a position in the medical records department and is qualified to fill the position, but she cannot maneuver her chair down a set of steps into a file room, the ADA would likely require the hospital to build a ramp to accommodate the wheelchair.
In addition, if other employees are available to go into the file room to retrieve medical records, the ADA might require as a reasonable accommodation that another employee perform this part of the job, Lyncheski says.
Most health care facilities require their employees to pass a medical exam due to the nature of the industry. The ADA permits an employer to require a new hire to pass a medical exams only as after a conditional offer of employment is made.
If the medical exam reveals that the new hire has a condition, the offer can be revoked only if it prevents that person from carrying out the essential functions of the position, Lyncheski notes. For example, if a prospective employee is found to have night blindness and was hired to drive the hospital's shuttle bus at night, the disability could be a reason to legally revoke the offer.
"If you come up with a problem, it has to be job-related and consistent with business necessity," Gault says. "It cannot be something that could otherwise be accommodated to help them perform the essential functions of the job."
Health care organizations are especially sensitive to the medical-exam requirement due to concerns about the HIV virus. Courts have held that an HIV-infected employee can be prohibited from jobs where they would perform invasive procedures, Lyncheski says.
Managing and firing under the ADA
Employers can be sued just as readily for violating the ADA while a disabled person is in their employ as they can be for violating the act during the employment process.
Any decision to discipline or terminate the employment of a disabled worker should be made carefully. If a protected employee is not performing the essential functions of his or her job to the required standard, the hospital should first scrutinize itself to make sure all reasonable accommodations have been made, Gault says. Then the health care organization should ensure that no bias has entered into the decision to discipline, demote, or terminate the employee. While it is difficult to prove bias was not a factor in a management decision, Gault says employers can protect themselves by having the decision reviewed at several levels.
New source of fraudulent claims
The ADA has inspired a flurry of fraudulent lawsuits, according to Lyncheski. "Most of these cases come up after the fact," he says. "For employees who are disgruntled, when the hatchet falls and they are terminated for their performance, the ADA can act as another arrow in their quiver."
Lyncheski recently defended a hospital in an ADA claim after a former employee in the medical records department sued following her resignation after several negative performance reviews. The employee later had "resignation remorse" and sued to get her job back. She claimed she had not been performing her job because she was depressed over the loss of her husband.
Her suit alleged that the hospital violated the ADA by letting her quit her job when they knew -- or should have known -- that she was suffering from depression. Though the hospital prevailed, the case illustrates some of the additional liabilities the ADA has created, Lyncheski says.
He does not believe the suit could have been avoided, but says the case underscores the need for investigation and documentation of all employee work problems. "Document, document, document," Gault says. "But don't only document those cases where you think an employee will do something fraudulent.
"You need to do it uniformly because you otherwise can get into trouble for discriminating against that employee."
Interplay of other laws
As complicated as the ADA is, it can be further confused by the application of other laws, including the federal Family and Medical Leave Act and state anti-discrimination laws, experts point out. Several state and federal laws overlap with the ADA and appear to have contradictory provisions.
For example, a person may be considered disabled and require some limited time off from work as an accommodation under the ADA. The family leave could be interpreted to require the employer to allow that individual to have 12 weeks off from work.
Risk managers should consult with their legal counsel or a labor lawyer to help sort through the requirements of the ADA and other federal and state laws, Gault says. *
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