Privacy and ADA compliance for health care organizations

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The federal Americans with Disabilities Act (ADA) as well as state laws prohibit employment discrimination based upon an individual’s physical or mental disabilities; these laws require compliance by all employers.

A – The federal statute prohibits employers from refusing to hire someone with a physical or mental disability if that person can perform the job’s essential functions (with or without “reasonable accommodation).

B – It is a violation of both ADA and state law if the individual can perform the position’s essential functions with reasonable accommodation and the employer does not hire that person and provide the accommodation.

A reasonable accommodation is an adjustment (to job duties or work environment) that enables the disabled but otherwise qualified applicant to perform the job’s essential functions.

It is up to the applicant to disclose the disability and request a reasonable accommodation during the hiring process. If the employee has not done so, this can present challenges to employers, especially those in the healthcare sector, which has certain restrictions not placed on other industries.

Restricted medical information

If the individual was hired and did not disclose a disability up front, yet asked for an accommodation, the employer may only obtain limited medical information that is strictly job related. The same goes for requiring a medical examination. The burden is on the employer to show it is necessary to obtain this information and/or require a medical exam solely to ascertain if:

1. The employee can perform the job’s essential functions without impairment (by a medical condition); or
2. If the employee will present a direct threat to themselves, patients, or others due to the condition.

Moreover, the employer cannot require the disclosure of this limited medical information nor of a limited examination, unless—based on the ADA’s standard of objective evidence—the employer reasonably believes a situation exists that necessitates making one or both determinations.

Further compounding these restrictions are healthcare-specific privileges that protect employees. These include the self–critical analysis privilege, state laws on peer review privileges and privacy, the Federal Health Care Quality Improvement Act of 1986, and non-disclosure agreements (NDAs) used extensively by healthcare facilities.

The case study below demonstrates the inherent challenges of balancing ADA compliance, employee privacy/HIPAA, and ensuring a safe and effective work environment in the healthcare industry.

Case study: How ADA compliance affected a hospital pathology unit

A large metropolitan medical center with a very high volume of pathology studies, many of which are complex, has an exclusive services agreement with a relatively small pathology practice. Due to the practice’s size, the volume and complexity of the pathology studies, and short turnaround times, all the pathologists work long hours under pressure.

An unexpected retirement created an urgent need for a new associate. An employment agreement was executed with a candidate who came through a national recruiter. Under the employment agreement this pathologist is required to obtain privileges at the medical center as a condition of beginning work.

A few days before the start date, a family member called to report the pathologist’s inpatient psychiatric hospitalization for a recurring “prior problem.” The psychiatric facility did not respond to the practice’s inquiries about the employee’s fitness to work and about any needed accommodations—the only inquiries the ADA permitted the practice to make.

A short time later, the pathologist entered outpatient treatment. That facility’s director sent a note stating that upon reviewing the job description, “in my professional opinion, this pathologist is free to begin work with no need for any accommodation.”

The chairmen of the credentialing committee and the pathology department and one owner of the pathology practice made diligent efforts to obtain more information on the pathologist’s mental health status to begin working in the high-volume, high-pressure practice. In reviewing the information provided by the recruiter more deeply, the owners discovered that the pathologist had taken a six-month leave of absence from the prior hospital employer for “a break from work,” the prior employer had conducted a Focused Professional Practice Evaluation (with no action taken against this pathologist’s privileges), and the prior department chair gave only a “qualified” recommendation because this pathologist “sometimes had difficulty with particularly complex pathology studies.” An NDA presumably prohibited any further disclosures.

The practice also discovered that recommendations the recruiter provided were from an earlier employer (not the most recent one), effectively shielding that qualified recommendation from the practice.

This additional information raised concerns about the pathologist’s ability to cope psychologically in the practice’s work environment. However, all the attorneys for the practice and the medical center agreed that an independent psychiatric examination of this pathologist could not be ordered because it is not clear if it meets the ADA’s required level of “reasonable belief, based on objective evidence” standard. The question is if this new information meets the objective evidence that a medical condition impairs the individual’s ability to perform the essential functions of this job, or that the person (this pathologist) will pose a direct threat to himself or to others (colleagues or patients) because of this condition.

Due to the preeminent concern over patient safety, the medical center opted NOT to grant privileges to this pathologist—a condition of employment. Therefore, the practice terminated his employment agreement.

This case highlights the balance healthcare employers must strike between legal considerations and ADA and state employment laws, HIPAA and privacy concerns, and the need to prioritize employee and patient safety and well-being. The pathology practice and medical center are waiting to see this pathologist will file a lawsuit citing violations of ADA and state employment laws.

Dennis J. Alessi, Esq., LLM, CHC, is a partner and co-chairs the Healthcare and Labor and Employment practices at Mandelbaum Barrett PC in Roseland, NJ.Contact him at dalessi@mblawfirm.com