Supreme Court limits ADA in work injuries
Disability’ must affect daily life tasks
Employees whose work-related injuries permanently limit their ability to perform certain job duties will find it hard to qualify for protection under the Americans with Disabilities Act (ADA).
In January, the U.S. Supreme Court set a high standard for the definition of disability in the anti-discrimination law.1 Being unable to lift or reach is not enough. The impairment must keep an employee from doing the most basic tasks of daily living, such as brushing teeth, bathing, or doing household chores.
"This case is very far-reaching," says Katherine Benesch, a partner with Duane Morris, a law firm in Princeton, NJ, that represents hospitals and other health care providers around the country.
"It greatly limits the number of people who are going to have a viable claim under the ADA. They have so expanded the kinds of things you have to not be able to do to be [considered] disabled," she says.
The case follows two others in U.S. Appeals Courts that also limited claims of disabilities. A nurse at Mercy Medical Center in Cedar Rapids, IA, suffered a back injury at work and underwent a diskectomy. When her pain continued, treating physicians told her she could no longer lift more than 40 pounds — although at the time, the hospital required nurses to be able to lift up to 75 pounds.
When she wasn’t able to reach an agreement with the hospital on a job that would accommodate her lifting restriction, she found work elsewhere and sued under the ADA. Last fall (2001), the Eighth Circuit Court of Appeals ruled that she didn’t have a disability as defined by the ADA, which meant her employer wasn’t legally required to provide an accommodation.2
In another case, the 11th Circuit Court of Appeals ruled against an HIV-positive dental hygienist who sued after he turned down a transfer to a clerical position that would have paid him much less.3 His employer didn’t want him working in the "exposure-prone" procedures of dental cleaning because of the potential risk to patients.
"The criteria for being able to work under the Americans with Disabilities Act is that you’re a qualified individual for the job," Benesch says. "In the Waddell case, they said because he’s HIV-positive, he’s not a qualified individual for the job because he’s a direct threat to the dental patient."
In yet another ADA case, a federal jury in Philadelphia said that a nurse with latex allergy did not qualify as disabled under the anti-discrimination law. The jury sided with Temple University Hospital’s attorneys who asserted that the nurse could continue to work as long as she was in a latex-free environment.
MSDs lead to job restrictions
For hospitals, which have among the highest rates of work-related musculoskeletal disorder (MSD) injuries, how to accommodate temporary or long-term physical restrictions is a common quandary. The U.S. Supreme Court considered the case of a Toyota Motors assembly-line worker who suffered from carpal tunnel syndrome. She sued when her supervisors refused her request to move to lighter duty, such as inspecting cars.
MSDs, primarily back injuries, could lead to similar scenarios in health care. In 1999, nursing aides, orderlies, and attendants suffered more work-related MSDs than any other occupation, with more than 44,000 injuries. Registered nurses ranked sixth, with more than 13,000 injuries, according to the Bureau of Labor Statistics.
"These are actually very common types of questions that come up in the workplace," says Charlene M. Gliniecki, RN, MS, COHN-S, vice president of human resources for El Camino Hospital in Mountainview, CA. "This is one of those cases that represents a huge volume of similar cases."
As Gliniecki learned about the Supreme Court case, she imagined a breakdown in the relationship between the employee and her supervisors that ultimately led to the lawsuit. Workers’ compensation is designed to handle temporary or long-term disability claims — although Gliniecki acknowledged that it may not provide workers with the dollar amounts they believe they are due.
"Workers’ comp doesn’t pay for pain and suffering, [and] it doesn’t compensate for losing your recreational capacity," she says. "[The Supreme Court case] was a workers’ comp issue that became an ADA issue [probably] because something didn’t happen in the workers’ comp piece."
Although the Supreme Court said that employers are not required to make accommodations, helping an injured worker retrain for another position often is the best policy, Gliniecki says.
"By and large, doing the right thing, which has been our philosophy and our practice, would not change [the ruling]," she says. "Our practice is not going to be significantly altered by this. We make a great effort if we have someone who has skills and abilities who with some training or short-term orientation can move into another job."
The tight labor market in health care makes accommodation even more appealing for employers. Hospital administrators also are more aware of the physical dynamics involved with MSD injuries, says Ron Kimzey, a partner with Ford & Harrison, an Atlanta-based firm that practices labor and employment law.
"Probably the managers in hospitals tend to go the extra mile more than they do in some other industries," he says. "They understand the nature of the condition. They spend a little bit more time trying to make sure if there is an accommodation that can be made, that’s what they’ll do."
When an employee is injured, no one knows whether that case one day will become involved in a dispute. That’s why thorough documenta-tion is critical from the start, agree Gliniecki and Benesch.
"We often are asked to assist or support or participate in assessing whether an individual is able to perform the essential functions of [the] job," Gliniecki says of employee health professionals.
From a legal standpoint, offering injured employees another job or a reasonable accommodation to continue working may not be required, but it’s still a good policy, Benesch says. "As long as they’re continuing to work, they would have less chance of having a case that had merit."
If the employee claims a disability due to an infectious disease, the employer would need to consider the risk to other employees or patients as paramount over the employee’s desire to work, she says. "That becomes a very important factor, and your need to make a reasonable accommodation becomes different," she says.
"The bottom line, especially after this Supreme Court case, is that you really have to look at the facts and circumstances of each particular employee," Benesch says. "Judge each on its own facts. There’s not really a formula."
References
1. Toyota Motor Mfg. v. Williams, No. 00-1089, U.S. Supreme Court (Jan. 8, 2002).
2. Brunko v. Mercy, No. 00-2989, 8th U.S. Circuit (Aug. 15, 2001).
3. Waddell v. Valley Forge, No. 00-14896, 11th U.S. Circuit (Dec. 21, 2001).