Date: January 25, 2024Attorney: Dennis J. Alessi

The Americans with Disabilities Act (“ADA”) is the primary federal statute which prohibits discrimination in employment based upon an individual’s physical or mental disabilities. State laws which prohibit disability discrimination in employment have similar prohibitions on such discrimination and in some respects compliance with the State law is even more demanding on employers than ADA compliance.

Both statutes were drafted with an eye towards general business industries and there are no specific provisions applicable to the healthcare industry. Reduced to its core, in the employee hiring context the key provisions of the ADA are : (1) an employer cannot refuse to hire an individual who has a physical or mental disability provided that the individual can perform the essential functions of the job either with or without a reasonable accommodation; (2) if the individual, notwithstanding his or her disability, can still perform the essential functions of the position with a reasonable accommodation, then it would be a violation of the ADA and state law for the employer not to hire that person and provide the accommodation; (3) a reasonable accommodation is some change or adjustment to the functions or duties of the position or in the work environment that permits an otherwise qualified applicant with a disability to perform the essential functions of the position; and (4) the burden is on the applicant to decide whether, during the hiring process, they want to disclose to the prospective employer that they have a disability and are requesting a reasonable accommodation.

Restricted Access: Employer Limits on Obtaining Medical Information After Hiring

After an individual has been hired and has not disclosed a disability and asked for an accommodation, an employer is only entitled to very limited medical information about them. An employer can only obtain medical information about an employee, and can only  require a medical examination, which is job – related; in that it is necessary for the employer to obtain this information in order to determine: (1) whether the employee’s ability to perform the essential functions of the job is impaired by a medical condition; or (2) whether, because of this condition, the employee will pose a direct threat to themselves,  to other employees or to others.

In other words, an employer cannot obtain any and all medical information about an employee and cannot require a general medical examination; but only that limited, subset of such information and examination necessary for the employer to make either of these two determinations. In addition, the employer cannot require the disclosure of even this limited medical information, and this limited examination, unless it has a reasonable belief, based on objective evidence, that a situation exists with the employee which necessitates the employer making either one or both of these determinations.  

The difficulty for healthcare employers to obtain such medical and related information is compounded by various privileges against disclosure which exist only in healthcare; such as the self–critical analysis privilege, state laws on peer review privileges and the Federal Health Care Quality Improvement Act of 1986 which also addresses peer review, and the extensive use of Non-Disclosure  Agreements (“NDA”) by hospitals and other healthcare facilities to protect against the disclosure of information which may lead to lawsuits against them.

Demonstrating the Challenges: A Case Study on ADA Compliance in Healthcare

A large, high-profile metropolitan medical center has a very high volume of pathology studies, many of which are complex. A surprisingly small pathology practice, with relatively few pathologists considering the size of the medical center and the volume of pathology studies, has an exclusive Services Agreement. The practice intentionally maintains a relatively small number of pathologists for purposes of quality control, considering the volume and often complexity of studies it performs, and to maximize income for both the owners and associate pathologist because of the high living cost in the metropolitan area. As a result, all the pathologists work fairly long hours and under some pressure given the volume, and often complexity, of studies they have to complete within restricted time limits, as required by the medical center.

Because of an unexpected retirement the pathology practice has an urgent need for a new associate. A national recruiter was engaged who presents information on a candidate from another section of the country that appears as a perfect fit. An Employment Agreement is executed, and the pathologist moves to the metropolitan area.

 A few days before their start date, an owner of the pathology practice receives a call from a family member of the employee that the employee was hospitalized in an inpatient psychiatric facility because of the “reoccurrence of a prior problem.”  The pathology practice receives no response to its inquiries to the facility on whether and when the employee would be fit to begin work and whether the employee needs any accommodation. (This being the only inquiries the practice was permitted to make under the ADA.) The only response from the facility is that the employee has been transferred to an outpatient psychiatric unit.

 A short time later the practice receives a one sentence letter from the director of this unit: “I reviewed the job description which you provided, and, in my professional opinion, this pathologist is free to begin work with no need for any accommodation.”

Under the Employment Agreement this pathologist is required to obtain privileges at the medical center as a condition of beginning work. The Chairman of the Credentialing Committee, the Chairman of the Pathology Department, and one of the owners of the pathology practice all make diligent and extensive inquiries in an effort to obtain more information on the mental health status of this pathologist to begin working in a high-volume, high-pressure practice with many complex studies.

Despite all their best efforts, the only additional information they could obtain is that: (1) the pathologist had taken a six-month leave of absence from the prior hospital employer “to take a break from work”; (2) the pathologist had been subject to a Focused Professional Practice Evaluation at this prior employer, but the Chair of its Pathology Department would not provide any additional information, presumably because of an NDA; (3) the National Data Bank was checked and it is apparent that no action was taken against this pathologist’s privileges by their prior employer as a result of this FPPE; (4) this Department Chair gave the pathologists only a “qualified” recommendation, but states that it is qualified only in the sense that this pathologist “sometimes had difficulty with particularly complex pathology studies.” (The pathologist had received other recommendations which were not qualified at all; but these were from an earlier hospital employer.)

In reviewing, more closely the information provided by the recruiter, it is revealed that this pathologist had ceased working at their most recent hospital employer for a number of months before being offered employment by this pathology practice.  Also, the recruiter has only provided recommendations from this pathologist’s earlier hospital employer and not from this most recent employer, presumably to insulate this candidate from the qualified recommendation by the Pathology Department Chair of their most recent employer.

From a legal standard, the best evaluation of this additional information is that it raises a suspicion that at times this pathologist could not psychologically cope with a high-volume, high-pressure pathology practice that often performs complex studies, which is exactly the type of practice that had hired this individual. The consensus among all the attorneys involved for this practice and the medical center is that they cannot order an independent psychiatric examination of this pathologist.

This is the consensus because it is questionable whether this information rises to the required ADA level of a “reasonable belief, based on objective evidence” that: (1) this pathologist’s ability to perform the essential functions of this job is impaired by a medical condition; or (2) whether, because of this condition, this pathologist will pose a direct threat to themself, to other employees or to others.

Nevertheless, because of the preeminent concern over patient safety, the medical center declines to grant privileges to this pathologist and the practice terminated his Employment Agreement because obtaining such privileges was a condition of employment. The practice and medical center are now waiting on whether this pathologist will file suit alleging violations of the ADA and the particular state laws.

As the situation awaits potential legal actions, it highlights the delicate balance between ADA and HIPAA compliance, employee privacy, and the imperative to ensure a safe and effective healthcare environment. The case serves as a reminder of the nuanced challenges faced by employers in the healthcare sector, navigating intricate legal considerations while prioritizing the well-being of both employees and patients.