I have written many times that, of the groups strongly affected by the 2008 revision to the Americans with Disabilities Act, physicians are the most overlooked. When I mix together my lay knowledge of the law, the outcome of recent federal court judgments and EEOC settlements, and my 25+ years working around and training physicians in the world of industrial/occupational rehabilitation I see both opportunity and legal exposure.
Physicians whose work touches on the question of fitness for hiring have new responsibilities. As an author of actionable medical information, the physician has legal exposures emanating from old habits and practices. For example, employers referring to a do-not-hire recommendation based on “speculative fears or biases” rather than on the Title I requirement to make an individualized assessment of the individual’s ability to safety execute the essential functions of the single job in question have triggered federal court and EEOC sanctions. (see: EEOC v. Hussey Copper Ltd., No. 2:08-CV-00809, U.S. District Court for the Western District of Pennsylvania), (see: EEOC v. Hoeganaes, Civil Action No. 3:14-cv-01114, U.S. District Court for the Middle District of Tennessee).
We can argue all day about defining a physician as an agent of the employer; no matter which side of that argument you choose, the fact remains that the physician authors the initial medical information resulting in the adverse do-not-hire decision. An employer covering the cost of legal counsel and the eventual judgment or settlement will be very aware of the physician’s role.
The fact remains that the informed physician will change old practices to either follow the dictates of the “individualized assessment of the ability to DO THE JOB based on current ability” or will change to a model which abstains from communicating medical information to the employer unless there is a clear job-related, business necessity, need-to-know quality to a very narrow slice of pertinent information. (https://reasonableaccommodation.com/blog/wellness-programs-collide-with-title-i-right-to-non-disclosure/)
On a more positive note, physicians have a new tool, and new responsibility, in the ADA Title I practice of reasonable accommodation. This subject is worthy of a half-day symposium on the benefits and techniques behind the concept. Having established that caveat, know that including a suggestion for a “reasonable” accommodation in a hiring, stay-at-work, or return-to-work medical report can be a valuable added service when offered to the employer with an established reasonable accommodation program. Conversely the same recommendation, to my way of thinking, can become a liability to the unprepared employer. The presence of the recommendation in the medical report obligates the employer to a “full and fair review” of the cost and hardship (i.e., its’ reasonableness) of implementing the suggested accommodation and the effectiveness of the suggested solution. My thinking is that the employer is not obligated to follow the physician’s suggestion for a disability-focused solution as much as it is obligated to be faithful to a physician’s medically-based restriction. I base this thinking on a case in which one of my students was a witness (Leger v. Tribune Company Long Term Disability Benefit Plan) and on the thinking about the distinction between impairment and disability decisions explored in the California cases of Joyce Guzman and Mario Almaraz ((ADJ1078163 (BAK 0145426) – Mario Almaraz; ADJ3341185 (SJO 0254688) – Joyce Guzman)).
Reasonable Accommodation is a powerful, basic tenet of ADA Title I. I believe the care and handling of this tool in the hands of the physician has not been fully explored or explained. A partnership of an attorney versed in ADA Title I, experienced practitioners in human resources, and representatives of such disciplines as Occupational Therapy would go far in serving the community of those of us who benefit from effective reasonable accommodation.
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