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Disability Discrimination in the Health Care Employment Context

February 1, 2020

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers of the same size. The ADA protects a qualified individual with a disability from disparate treatment or harassment based on disability, and also provides that, absent undue hardship, a qualified individual with a disability is entitled to reasonable accommodation to perform, or apply for, a job or to enjoy the benefits and privileges of employment. The ADA also includes rules regarding when, and to what extent, employers may seek medical information from applicants or employees. Michigan also has its own statute, the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101, et seq., which prohibits employment discrimination on the basis of disability and/or perceived disability. This law applies to employers within the State of Michigan with one or more employees.

 

An employer should be proactive and discuss potential concerns regarding an employee’s disability or perceived disability with their employment attorney before making decisions that will affect the employment status of a disabled employee or an employee who suffers from a perceived disability. Many situations are fact-specific and the law in this area is constantly evolving. Thus, having an open and honest discussion with your employment attorney prior to making an adverse employment decision is the best way to protect your business and against avoidable discrimination claims. Contact employment attorney Nancy Chinonis at Cline, Cline, & Griffin, PC regarding your employment related concerns at 810-232-3141.

 

COMMON QUESTIONS REGARDING DISABILITY IN THE WORKPLACE

 

1. When is a health care worker an individual with a Disability?

 

A person is an individual with a disability under the ADA when he or she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of a substantially limiting impairment; or (3) is regarded (treated by an employer) as having a substantially limiting impairment. Major life activities are basic activities that the average person can perform with little or no difficulty, such as: walking, sitting, standing, lifting, reaching, seeing, hearing, speaking, eating, performing manual tasks, learning, thinking, concentrating, interacting with others, and working.

 

2. Does job classification matter?

 

While the ADA’s protections apply to applicants and employees, the statute does not cover independent contractors. Many workers in the health care industry are referred to as independent contractors because they are placed through temporary or staffing agencies. However, whether a particular health care worker is an “employee” covered by the ADA is a fact-based and case-specific determination that depends on several factors. Designating an individual as an “independent contractor” on paper is not dispositive, nor is the existence of a document styled as an “independent contractor agreement.” Moreover, health care providers should be aware that they may be considered the employer or joint-employer of temporary nurses and other temporary workers who are provided by a temporary agency or staffing firm.  If you have a question as to whether your employees and/or independent contractors are properly classified, please contact an employment attorney promptly.

 

3. What determines if a health care worker is “qualified” to perform a job within the meaning of the ADA?

 

To be qualified to perform a job under the ADA, an individual must satisfy the requisite skill, experience, education, and other job-related requirements (“qualification standards”) of the position held or desired, and be able to perform the job’s essential functions with or without a reasonable accommodation. Essential functions are the basic job duties that an employee must be able to perform, based on factors such as the reason the position exists, the number of other employees available to perform the function or among whom performance of the function can be distributed, and the degree of expertise or skill required to perform the function.

If a job requirement excludes a health care worker from a position due to a disability, the requirement must be job-related and consistent with business necessity. Some requirements will obviously meet this standard, such as licenses required by state and/or local governments for doctors and other health care professionals. In other instances, however, an employer may need to consider whether the standard that is excluding an individual with a disability from employment accurately predicts the individual’s ability to perform the job’s essential functions.

 

4. May a supervisor rely on their own experience and knowledge as a medical professional to determine whether to grant or deny a request for accommodation?

 

While many supervisors in the health care field may have greater medical knowledge than supervisors in other fields, care should be taken before denying an accommodation request to obtain and assess medical documentation from the employee’s own health care provider.  Moreover, a supervisor should not deny an accommodation request based on his or her perception that an employee could avoid the need for the accommodation by following a different treatment regimen or better adhering to a prescribed treatment plan.

 

Conclusion:

 

Employees in the healthcare industry are offered the same protections and legislatively created benefits as employees in other sectors under both state and federal law. Thus, employers should take requests for accommodation due to disability seriously and speak to an employment attorney before making any adverse employment decision regarding an employee’s request for accommodation and/or employment status.  If you have questions regarding job classifications, requests for accommodations, or any other employment-law related topic, contact Nancy Chinonis at Cline, Cline & Griffin, PC (810)-232-3141.

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