Health employers grapple with new disability law

Health care providers need to get up to speed on big new changes that significantly broaden the definition of disability and the number of employees who will be covered under the Americans with Disabilities Act, employment lawyers say.

The new law, known as the Americans with Disabilities Act Amendments Act (ADAAA), took effect on Jan. 1. It applies to employers with 15 or more workers.

The original law generally prohibits disability-based discrimination in the workplace and in public accommodations, and requires a reasonable accommodation for disabled workers.

In the past, courts have interpreted the definition of disability narrowly, but the new Act explicitly rejects those interpretations and is expected to lead to an uptick in employees arguing they are disabled under the law.

Some attorneys say that under the new law, health care providers may be held to a higher standard than other employers when it comes to finding a reasonable accommodation for a disabled employee because of their expertise in evaluating medical conditions and solving medical problems.

Even though Massachusetts state disability law was already broader than the older federal law, the new law clarifies some areas, said Dahlia Rudavsky, a partner with Messing, Rudavsky & Weliky in Boston.

Here are some key aspects of the new federal law:

• The law clarifies that the definition of “disability” is to be broadly construed;

• The law states that medications or corrective measures (other than ordinary eyeglasses) should not be taken into account when determining whether an individual has a “substantial impairment.”

• It lowers the burden for an individual claiming he or she was “regarded as” disabled for purposes of being covered under the new law;

• Impairments that are episodic or in remission are covered if they limit a major life activity;

• Major life activities include bodily functions, such as immune disorders, cancer, organ functions or reproductive problems; and

• An individual need not show that an impairment restricts multiple activities.

The EEOC has not released guidelines on implementing the law yet, but their regulations are expected to shed more light on how various definitions will be interpreted.

Higher standard for providers?

As a result of the new law, the focus will shift from whether an individual is disabled to whether the employer provided a reasonable accommodation.

“My hunch is that courts are going to look at hospitals as possibly having a higher burden in terms of providing a reasonable accommodation,” said Daniel Bretz, an attorney at Clark Hill in Detroit who represents employers.

Eve Horwitz, an attorney with the Archstone Law Group in Waltham, Mass., which focuses on health care and high-tech, agreed.

“Hospitals should know that if someone is suffering from X, a good accommodation would be Y,” she said.

Bretz added that it will be especially difficult for larger providers with a lot of resources, such as hospitals, to succeed with a defense that providing an accommodation is an “undue burden.”

“Here we are a health care provider ministering to the sick with the Hippocratic Oath and then arguing ‘We can’t do that,’” to accommodate an employee, he said.

Bretz advises his health care clients to get creative when it comes to providing an accommodation for workers claiming disability.

For example, in one case he advised a hospital to come up with a special lab coat that could carry items for a phlebotomist who could no longer push a cart because of shoulder problems.

Another pitfall is that attendance in many cases can no longer be considered part of the job description.

“Certainly an OR nurse has to be there, but what about a medical transcriptionist or someone in billing? It is all digital now and does not require someone to come in and sit in a cubicle. An individual can do it online and e-mail it in. In hospitals, there are a variety of jobs that may not require an employee to show up,” said Bretz.

What health care employers should do now

Health care employers should be providing training to first-level managers and supervisors to avoid comments about an employee’s condition or knee-jerk decisions that an employee is not disabled.

“Managers need to understand the [new disability law] and what is demanded. Derogatory remarks or assumptions about somebody’s position can be the proverbial smoking gun,” said Bretz, who noted that some courts have said the mere failure to train can justify an award of punitive damages.

Robert Silverstein, a principal at Powers, Pyles, Sutter & Verville in Washington, D.C., who practices in the areas of disability and health care law, also recommends that employers have a “go-to” person for disability issues so that there is centralized expertise.

“It’s just a good idea so that if somebody wants to file a complaint, they know who to go to and if there’s a question you’re not just flying by the seat of your pants,” he said.

Employers should also review employees’ job descriptions, which will be important in determining whether an individual can perform the essential functions of the job.

And Silverstein suggests that employers stay up to date on the different technologies or tools that exist for providing low cost accommodations for various disabilities.

Questions or comments should be directed to the writer at: sylvia.hsieh@lawyersusaonline.com