The Case of the Zumba Instructor: Employment Testing, Essential Function, Workers Compensation

On the second Wednesday of each month, at 2:00 p.m. eastern time, we broadcast a webinar on a topic related to Title I of the ADA. This blog post is based on a question from the audience:

Q: I am interested in your thoughts. While a hospital was interviewing a Zumba instructor, the instructor admitted that she had a current knee injury that may reduce the amount of instruction time she can do during the week. The hospital offers her a position and sends her through post Zumbaoffer evaluations. The hospital physician states the instructor is able. The physical therapy evaluation (not pass/fail nor based on job duties) shows she has some limitations and the therapist has concerns for her safety. The hospital then decides that the instructor should be evaluated by HER physician, medically cleared and then return in two weeks for a physical therapy re-evaluation.

The hospital has no documentation listing essential job duties, physical demands of the essential functions, no pass/fail testing for job duties, etc. The hospital now fears they’re hiring their next workers comp claim and are wondering if there’s anything they can do within the two week hold period to identify essential job duties which they can review with her when she returns.

A: Your question raises areas for improvement that also reflect potential violations of Title I of the ADA. Here are my non-legal observations.

“…the instructor admitted that she had a current knee injury that may reduce the amount of instruction time she can do during the week.”

This happened in the application stage therefore no medical or disability related questions can be asked of the individual applying for a job. The applicant may self-disclose a disability.

Very good move by the interviewer to not regard her as having a disability (Gillen v Fallon Ambulance Service) and moved her on in the hiring system. The only thing I might suggest is to remind the applicant of the required number of hours of instruction over a period of months; confirm with her that this is a job requirement (productivity standard) that may not be able to be accommodated if the instructor indeed has a disability. Her revelation of the injury creates a question of whether she is qualified for the job. But, again, the interviewer was correct in allowing her to move on in the job exploration process.

“The hospital offers her a position and sends her through post offer evaluations.”

Error avoided – Now she is no longer an applicant; she is a conditional hire. The rules of medical examination are now in play (Section 12112 Prohibited examination or inquiry. – Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant).

“The hospital physician states the instructor is able.”

First error – The system was correct to administer a physical examination but erred in having a physician limit the examination to a finding of “the instructor is able”. This type of statement is a hair’s breadth away from the liability creating “the instructor is not able”. Title I of the ADA is very clear that physicians must move beyond a typical health-based medical examination whenever the outcome of the examination denies employment based on a finding. In this case the physician is basing his finding on health issues, apparently, rather than employment issues.

Second error – “The physical therapy evaluation (not pass/fail nor based on job duties) shows she has some limitations and the therapist has concerns for her safety.”

Although the conditional hire is still being considered for the job, the therapist has raised a valid denial of employment issue. The system has placed the therapist in the awkward position of realizing a safety issue is present but not having the job information needed to appropriately test the individual (the physician lacked this same information).

Third error – “The hospital then decides that the instructor should be evaluated by HER physician, medically cleared and then return in two weeks for a physical therapy re-evaluation.”

There is absolutely no point in having “her” physician evaluate her. The physician has no power, nor information, to make an employment decision on behalf of the employer. Further, if the physician does not identity the issue raised by the physical therapist, no liability on the employer’s part has been averted. The individual is still unsafe and untested for the demands of the job.

Fourth error – “The hospital has no documentation listing essential job duties, physical demands of the essential functions, no pass/fail testing for job duties, etc.”

During the initial interview the possibility of a safety-related issue was raised by the applicant. When this happens, give the individual an opportunity to self-select out of the job by providing a clear essential function job description that clarifies the physical demands of the essential functions of the job. Note how not having a system for collecting and communicating this information has positioned the medical center to violate at least four aspects of Title I of the ADA.

Roy Matheson

http://reasonableaccommodation.com/about/

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