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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
