AORN JOURNAL
M A Y IY‘)?. VO1 55. NO 5
OR Nursing Law New federal regulations protect disabled employees
A
s health care professionals, we are acutely aware of the particular needs and hardships faced by those with physical and mental handicaps and those with perceived handicaps. Unfortunately, discrimination in the workplace has had devastating effects on the estimated 43 million disabled Americans. The US Congress and the President finally have taken affirmative action to protect the rights of these individuals. This article outlines the basic provisions of the Americans with Disabilities Act of 1 9 9 0 (ADA), which is scheduled to take effect July 26. 1992. Unlike Title VII (ie, Federal antidiscrimination statutes) and the Age Discrimination in Employment Act, the ADA not only prohibits discrimination but also requires all employers, public and private, to provide, at their own expense, “reasonable accommodations” for disabled employees.
Basic Discrimination Rules
E
ffective July 26, 1992, all employers with 25 or more employees will be required to comply with the new rules. Employers with more than 15 but less than 25 employees will be required to comply as of July 26, 1994. Employers with fewer than 15 employees are exempt from the ADA. Employers may not discriminate against a qualified individual based on his or her disability with regard to application, hiring, advancement, compensation, training, discharge, or o t h e r terms, conditions, o r privileges of 1274
employment. Furthermore, employers must now make “reasonable accommodations” at their own expense for the disabled employee unless the employer can show the accommodation would pose an undue hardship on the business.
Who is Disabled?
D
efining who is disabled may turn out to be very difficult and frustrating for employers. The ADA defines disabled as a physical o r mental impairment that “substantially limits” one or more of the “major life activities” of such individual, a record of such impairment, or the perception that o n e has such an impairment. A physical or mental impairment does not constitute a disability unless its severity results in ‘‘substantial limitations” of one o r more major life activities. A person with an artificial limb may have difficulty with the major life function of walking, and a deaf person has difficulty with the major life function of hearing. On the other hand, if you cut your finger on a scalpel during surgery or break your toe when you kick the operating microscope. you will not be “disabled” under the ADA because neither affects a major life function (despite what the OR supervisor may think). The following disorders are included in the definition of disabled under the ADA: mental retardation; organic brain syndrome:
AORN JOURNAL
MAY 1992. VOL 55, NO 5
A ‘qualified individual’ is any person with a disability who can perfom the essential functions of the employment position. emotional or mental illness: cerebral palsy: 0 epilepsy; muscular dystrophy: multiple sclerosis; HIV infection: 0 cancer: 0 heart disease: and orthopedic, visual, speech, and hearing impairments. By contrast, the following conditions are excluded from ADA protection: homosexuality, bisexuality. transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, genderidentity disorders not resulting from physical impairments, and substance abuse disorders arising from the current illegal use of drugs. By including the perception that one is disabled in the definition of disabled, the ADA protects people who, by reason of stereotyping and prejudice. are seen as disabled (eg, badly disfigured bum victim).
Drugs, Alcohol
A
n employer cannot discriminate against addicts and alcoholics because of their addiction. An employer can, however, hold an employee who engages in the use of illicit drugs or who is an alcoholic to the same standards for employment to which he or she holds other employees, even if unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee. Employees who currently are using illegal drugs are not covered under the ADA. Individuals, however, will be considered disabled under the ADA if they 0 have successfully completed or are participating in a supervised drug or alcohol rehabilitation program or otherwise have been successfully rehabilitated and no longer use illegal drugs or alcohol; or
are erroneously regarded as engaging in illegal drug or alcohol abuse. Of course, employers still are free to prohibit the use of drugs and alcohol in the workplace, and employers may require employees to be sober and drug free while on the job. Under the ADA, an employer may require drug testing to ensure an individual is no longer using illegal drugs. Drug testing is not considered a medical examination under the ADA.
Who Is a ‘Qua1fled Individual’ ?
A
“qualified individual” is any person with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that the individual holds or desires. Whether such person is qualified must be determined at the t h e the person applies for the position. The possibility of future risk cannot be used to disqualify an individual. The ADA gives considerable weight to the employer’s judgment on what job functions are essential. It is unclear what guidelines will be used to determine if a job function is essential: however, any written job descriptions prepared by the employer before advertising or interviewing for the job will be very important. The ADA does not require an employer to give any preference to the disabled. An employer is still free to select the most qualified applicant available.
Reasonable Accommodations, Undue Hardship
R
easonable accommodations required under the ADA may include, but are not limited
to,
0
making existing facilities readily accessible
MAY
AORN JOURNAL
to, and usable by, disabled people (ie, may require actual physical alteration of the workplace); 0 restructuring the job; 0 modifying work schedules; reassigning disabled employees to vacant positions: 0 acquiring or modifying equipment or devices; 0 adjusting or modifying examinations, training materials, or policies; providing readers or interpreters: or 0 other similar accommodations. A disabled person need not accept the accommodations. The US House of Representatives and the US Senate reports suggest that employers first consult with the disabled person or persons to determine the acceptable accommodations required. Where several accommodations are feasible, the employer need only choose the least expensive and/or easiest to implement.
Medical Examinations,Inquiries
1992. VOL SS. NO 5
Employers’ Rights
E
mployers are not required to hire or keep individuals who pose a direct threat to the health, safety, and welfare of the workplace. A direct threat is defined as a significant risk that cannot be eliminated by reasonable accommodation. Examples might be communicable diseases that may be transmitted in the normal course of the employment (eg, through food handling). Acquired immune deficiency syndrome (AIDS)was considered and rejected as a disease that might be transmitted by food handling. Of more pressing concern is the issue of AIDS among health care workers. The debate centers on whether health care workers who are HIV positive should be allowed to work in such places as the OR, where transmission to patients is a real possibility. The ADA does not specifically address this issue, but the debate in the health care industry is real, and the issue already is being considered by all state legislatures.
Conclusion
M
any of us have had physical examinations before employment. Medical examinations are practically a way of life with employers and new employees. The ADA now prohibits a required medical examination before a job is offered, and it prohibits making inquiries to the employee or previous employers about the existence of, or severity of, a disability. Examples of prohibited pre-employment inquiries would be: 0 “Do you have any particular disabilities?” 0 “Have you ever been treated for any of the following diseases or conditions?” 0 “Are you now receiving, or have you ever received, workers compensation benefits?” Medical examinations are permitted after an offer of employment has been made but before employment actually has commenced. Such commencement may be conditioned on examination results.
T
he ADA may generate much litigation over the interpretation of the language and the scope of the coverage. It was not intended to preempt state or local laws, and those laws that provide greater protection to individuals also must be met. For now, employers must be sure to treat all individuals equally on the basis of their ability to perform a certain job and not discriminate against handicapped individuals or individuals with perceived handicaps. Like other civil rights laws, the ADA makes discrimination based on a disability illegal. JAMES M.ZUFFOLEITO,RN, JD, CRNA SAN DIEGO
M A Y IY‘)?. VO1 55. NO 5
OR Nursing Law New federal regulations protect disabled employees
A
s health care professionals, we are acutely aware of the particular needs and hardships faced by those with physical and mental handicaps and those with perceived handicaps. Unfortunately, discrimination in the workplace has had devastating effects on the estimated 43 million disabled Americans. The US Congress and the President finally have taken affirmative action to protect the rights of these individuals. This article outlines the basic provisions of the Americans with Disabilities Act of 1 9 9 0 (ADA), which is scheduled to take effect July 26. 1992. Unlike Title VII (ie, Federal antidiscrimination statutes) and the Age Discrimination in Employment Act, the ADA not only prohibits discrimination but also requires all employers, public and private, to provide, at their own expense, “reasonable accommodations” for disabled employees.
Basic Discrimination Rules
E
ffective July 26, 1992, all employers with 25 or more employees will be required to comply with the new rules. Employers with more than 15 but less than 25 employees will be required to comply as of July 26, 1994. Employers with fewer than 15 employees are exempt from the ADA. Employers may not discriminate against a qualified individual based on his or her disability with regard to application, hiring, advancement, compensation, training, discharge, or o t h e r terms, conditions, o r privileges of 1274
employment. Furthermore, employers must now make “reasonable accommodations” at their own expense for the disabled employee unless the employer can show the accommodation would pose an undue hardship on the business.
Who is Disabled?
D
efining who is disabled may turn out to be very difficult and frustrating for employers. The ADA defines disabled as a physical o r mental impairment that “substantially limits” one or more of the “major life activities” of such individual, a record of such impairment, or the perception that o n e has such an impairment. A physical or mental impairment does not constitute a disability unless its severity results in ‘‘substantial limitations” of one o r more major life activities. A person with an artificial limb may have difficulty with the major life function of walking, and a deaf person has difficulty with the major life function of hearing. On the other hand, if you cut your finger on a scalpel during surgery or break your toe when you kick the operating microscope. you will not be “disabled” under the ADA because neither affects a major life function (despite what the OR supervisor may think). The following disorders are included in the definition of disabled under the ADA: mental retardation; organic brain syndrome:
AORN JOURNAL
MAY 1992. VOL 55, NO 5
A ‘qualified individual’ is any person with a disability who can perfom the essential functions of the employment position. emotional or mental illness: cerebral palsy: 0 epilepsy; muscular dystrophy: multiple sclerosis; HIV infection: 0 cancer: 0 heart disease: and orthopedic, visual, speech, and hearing impairments. By contrast, the following conditions are excluded from ADA protection: homosexuality, bisexuality. transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, genderidentity disorders not resulting from physical impairments, and substance abuse disorders arising from the current illegal use of drugs. By including the perception that one is disabled in the definition of disabled, the ADA protects people who, by reason of stereotyping and prejudice. are seen as disabled (eg, badly disfigured bum victim).
Drugs, Alcohol
A
n employer cannot discriminate against addicts and alcoholics because of their addiction. An employer can, however, hold an employee who engages in the use of illicit drugs or who is an alcoholic to the same standards for employment to which he or she holds other employees, even if unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee. Employees who currently are using illegal drugs are not covered under the ADA. Individuals, however, will be considered disabled under the ADA if they 0 have successfully completed or are participating in a supervised drug or alcohol rehabilitation program or otherwise have been successfully rehabilitated and no longer use illegal drugs or alcohol; or
are erroneously regarded as engaging in illegal drug or alcohol abuse. Of course, employers still are free to prohibit the use of drugs and alcohol in the workplace, and employers may require employees to be sober and drug free while on the job. Under the ADA, an employer may require drug testing to ensure an individual is no longer using illegal drugs. Drug testing is not considered a medical examination under the ADA.
Who Is a ‘Qua1fled Individual’ ?
A
“qualified individual” is any person with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that the individual holds or desires. Whether such person is qualified must be determined at the t h e the person applies for the position. The possibility of future risk cannot be used to disqualify an individual. The ADA gives considerable weight to the employer’s judgment on what job functions are essential. It is unclear what guidelines will be used to determine if a job function is essential: however, any written job descriptions prepared by the employer before advertising or interviewing for the job will be very important. The ADA does not require an employer to give any preference to the disabled. An employer is still free to select the most qualified applicant available.
Reasonable Accommodations, Undue Hardship
R
easonable accommodations required under the ADA may include, but are not limited
to,
0
making existing facilities readily accessible
MAY
AORN JOURNAL
to, and usable by, disabled people (ie, may require actual physical alteration of the workplace); 0 restructuring the job; 0 modifying work schedules; reassigning disabled employees to vacant positions: 0 acquiring or modifying equipment or devices; 0 adjusting or modifying examinations, training materials, or policies; providing readers or interpreters: or 0 other similar accommodations. A disabled person need not accept the accommodations. The US House of Representatives and the US Senate reports suggest that employers first consult with the disabled person or persons to determine the acceptable accommodations required. Where several accommodations are feasible, the employer need only choose the least expensive and/or easiest to implement.
Medical Examinations,Inquiries
1992. VOL SS. NO 5
Employers’ Rights
E
mployers are not required to hire or keep individuals who pose a direct threat to the health, safety, and welfare of the workplace. A direct threat is defined as a significant risk that cannot be eliminated by reasonable accommodation. Examples might be communicable diseases that may be transmitted in the normal course of the employment (eg, through food handling). Acquired immune deficiency syndrome (AIDS)was considered and rejected as a disease that might be transmitted by food handling. Of more pressing concern is the issue of AIDS among health care workers. The debate centers on whether health care workers who are HIV positive should be allowed to work in such places as the OR, where transmission to patients is a real possibility. The ADA does not specifically address this issue, but the debate in the health care industry is real, and the issue already is being considered by all state legislatures.
Conclusion
M
any of us have had physical examinations before employment. Medical examinations are practically a way of life with employers and new employees. The ADA now prohibits a required medical examination before a job is offered, and it prohibits making inquiries to the employee or previous employers about the existence of, or severity of, a disability. Examples of prohibited pre-employment inquiries would be: 0 “Do you have any particular disabilities?” 0 “Have you ever been treated for any of the following diseases or conditions?” 0 “Are you now receiving, or have you ever received, workers compensation benefits?” Medical examinations are permitted after an offer of employment has been made but before employment actually has commenced. Such commencement may be conditioned on examination results.
T
he ADA may generate much litigation over the interpretation of the language and the scope of the coverage. It was not intended to preempt state or local laws, and those laws that provide greater protection to individuals also must be met. For now, employers must be sure to treat all individuals equally on the basis of their ability to perform a certain job and not discriminate against handicapped individuals or individuals with perceived handicaps. Like other civil rights laws, the ADA makes discrimination based on a disability illegal. JAMES M.ZUFFOLEITO,RN, JD, CRNA SAN DIEGO
