Health Care Workers and the Law

August 1, 2002

Clara Sue Ross, MD, JD

eohcons@aol.com

Federal and State Laws

1. Statutes and Regulations

2. Common Law

Pertinent Laws Include:

• ADA

• FMLA

• OSHA

• Workers’ Compensation

• Medical Records/ Confidentiality

• Drug Testing laws/cases

• State laws/regulations

ADA

Prohibits discrimination against qualified individuals with disability

ADA

•Case by case decision making

•Individualized assessment

ADA

Protects qualified individuals

ADA

Disability definition under ADA:

1. Physical/mental impairment that substantially limits a major life

activity

2. Record of…

3. Regarded as having...

ADA

Employers win most litigated cases, often on issue of whether disability

present because no substantial limitation of a major life activity

ADA

Cooperative Interactive Process

Frequent ADA Issues Regarding Health Care Workers

1. Reasonable accommodation/Undue hardship

2. Direct threat

Frequent ADA Issues Regarding Health Care Workers

1. Reasonable accommodation/Undue hardship

•lifting

•shift changes

•attendance

•leave

Frequent ADA Issues Regarding Health Care Workers

2. Direct threat to the health and safety of others

•infectious diseases

•substance abuse

Frequent ADA Issues Regarding Health Care Workers

2. Direct threat to the health and safety of others:

•nature of risk

•duration of risk

•severity of risk

•likelihood of harm

Unique Workers’ Compensation Issues in Health Care Workers

Examples:

•Bloodborne pathogen exposures

•Latex

FMLA

•More limited occupational health professional role than ADA

•Confidentiality of records

•Conceptually simple, implementation not so simple

FMLA

• Eligible employee

• Covered employers

• 12 weeks of protected leave during 12 month period

• ‘Serious health condition’

Remember Laws Interrelate:

• ADA, FMLA and Workers’ Compensation

• Potential Issues include:– Which employees and employers covered?– How coverage defined?– What is purpose?– What medical inquiries are permitted?– How is ‘light duty” involved?

Remember Laws Interrelate:

• ADA, FMLA and Workers’ Compensation– What medical inquiries are permitted?

• FMLA-Certification Form

• ADA-Preplacement vs. ongoing– ‘job-related and consistent with business necessity’

Drug Testing Programs

• Program/policy issues– who to test– when to test– what to test for?– How to interpret?

• MRO Function

• EAP Function

Drug Testing

• Recent $1.8 billion class action against health care facility that did not do preplacement drug testing

• Radiology technician using patient meds/possible bloodborne pathogen exposures to patients

Legal Resources

• ADA: – www.eeoc.gov– www.usdoj.gov/crt/ada– www.adata.org– www.janweb.jcdi.wvu.edu– www.abanet.org/disability/lawpract

Legal Resources

• FMLA– www.dol.gov/dol/esa/fmla

• Other– www.findlaw.com