It is
commonly understood that the health care profession is a
service industry which often makes significant physical
demands on its employees. For example, nursing and related
support staff must be able to lift, transport and care for
frail or obese patients.It
is hardly surprising to find that nursing personnel suffer a
high incidence of work-related injuries. In fact, recent Bureau
of Labor Statistics reflect that registered nurses are
sixth in a list of at-risk occupations for strains and
sprains.Given
these realities, health care employers often encounter
employees whose injuries make them no longer capable of
performing tasks assigned to them. Since numerous federal,
state and local disability laws expose employers to
significant liability for violation of disabled employees
rights, health care employers – like many others- must be
careful in dealing with job accommodation requests. This
article discusses worker requests for “reasonable
accommodation” under the Americans with Disabilities Act
(“
ADA
”) and ways in which healthcare employers can reduce their
exposure to alleged violations under the Act.
The
ADA
Framework
The
ADA
provides the basic framework regarding the rights of
individuals with disabilities.The
ADA
essentially governs the employers obligations with respect to
claims for accommodation of a worker’s physical limitations.
The
ADA
generally prohibits employers from “discriminating against a
qualified individual with a disability because of the
disability of such individual.” To be covered by the
ADA
, an employee must establish that she is “a qualified
individual with a disability”, which is defined as “an
individual with a disability who, with or without
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
In the context of the ADA, a
worker who suffers a physical limitation and is unable to
perform the requirements of the job, may either request an
exemption from the physical requirements or may request a
transfer to a less physically demanding position.This is a “reasonable accommodation” request under
the
ADA
. How an employer responds to the request may prevent or
assist in the defense of an employment lawsuit down the road.
The Job Accommodation
Request and Legal Considerations for the Employer
Under the law, an employer may be required to change certain
requirements of the worker’s job, but the employer is not
required to exempt a disabled worker from performing those
duties that are considered the “essential functions of the
employment position”. Whether a lifting or mobility
requirement is an “essential function” calls for a fact
specific analysis. The following should be considered by the
health care employer in its analysis:
(1)Where
the worker requests a transfer to a less physically demanding
position, keep in mind that courts often second-guess the
employer’s decision to deny a transfer. While an employer
need not create a position for the disabled worker, it should
document its good-faith efforts to find a “comparable” job
for the worker.
(2)Remember
that discussion of physical limitations of a job applicant is
generally not permitted. Pre-employment inquiries are only
permitted to the extent they are narrowly tailored to the
applicant’s physical ability to perform a specific
“essential” function of the job. An employer may describe
or demonstrate an “essential” job function and inquire
whether the applicant can perform the function, with or
without accommodation. The better approach, however, is to
avoid questions regarding an applicant’s disabilities during
the interview process since the question of whether a job
function is “essential” is often litigated. If a
disability is raised by a job applicant, the interviewer
should emphasize that the only purpose for discussing physical
limitations is to determine the applicant’s ability to
perform the essential functions of the job and to establish
the appropriate forms of accommodation that should be
considered. If any discussion of disabilities does occur
during a job interview, a careful record should be made of how
the subject was raised and what was said between the applicant
and the interviewer, as well as the basis for any subsequent
decision to reject the applicant.
(3)In
determining “comparable” positions, Courts have held that
offering a job that was inferior in salary and benefits or
even a loss in seniority is not comparable and does not
constitute a reasonable accommodation.
(4)Whether
an employer should give preferential treatment to an employee
with a disability seeking an accommodation is an open question
and calls for a fact specific analysis. For example, in EEOC
v. Humiston-Keeling, Inc., the Court held that an employer
was not required to assign an employee to one of its vacant
positions to accommodate her disability, where the employer
had a policy of giving vacant jobs only to the best
applicants, and where the employee’s disability did not play
any role in the decision favoring one of her competitors.
However, the United States Supreme Court’s decision in U.S.
Airways, Inc. v. Barnett, sends mixed signals with respect
to the question of whether a disabled employee should receive
a preference when requesting a transfer.
(5)When
an employee with a disability requests that she be exempted
from certain requirements of the job, the question becomes
whether the proposed change relates to an “essential
function” of the job.Keep
in mind that the
ADA
does not require an employer to eliminate an essential job
function. As you may have already suspected, what constitutes
an essential job function, however, is the stuff of lawsuits.
In Phelps v. Optima Health, Inc., the Court held that
the hospital did not have to continue job sharing as a
reasonable accommodation because “an employer need not
exempt an employee from performing essential functions, nor
need it reallocate essential functions to other employees”.Be advised, however, that a different result was
reached under slightly different facts in Rodal v.
Anesthesia Group of Onondaga, P.C.
Conclusion
Health
care employers should identify the essential functions of each
employee position and should strictly follow the decision.
Further, health care employers should ensure that their
written descriptions of each employee position reflects an
accurate description of the essential job functions. These
written job descriptions should be updated so they accurately
reflect current job duties being performed by the worker. If a
health care employer decides that an accommodation should be
given, it should be made clear that the accommodation is being
done on a trial basis or for a specific time period, and that
the essential functions of the job have not changed. While
these suggestions may not prevent a worker from suing under
the ADA,
the health care employer’s practice of preparing accurate
written job descriptions, having a consistent approach, and
preparing accurate documentation, will all prove to reduce
liability exposure when confronted with the “job
accommodation” request.
Good
Samaritan laws generally help protect rescuers voluntarily
helping a victim in distress from being successfully sued in
Tort.They’re
designed to encourage people to help a stranger in an emergency
by reducing or eliminating the fear that if they do help, and
inadvertently make a mistake in treating that person, that they
will be sued for that mistake.All states have some form of Good Samaritan laws.In practice, we need to be aware of the provisions of the
Act so we can use them to our advantage under the right set of
circumstances.In
fact, the General Assembly states in the Legislative Purpose
section of the Act that the Act is to “liberally construed”
to encourage persons to volunteer their time and talents.
The
Act covers a variety of “health care” professionals who
volunteer to help others.The
Act covers, in part, dentists, physicians, free medical clinics,
nurses, physician assistants, and even veterinarians, performing
emergency care to human victims in certain situations under
specified circumstances.In
our practice, the most common issue with regard to the
applicability of the act involves physicians.That section of the Act provides:
“Physicians;
exemption from civil liability for emergency care.Any person licensed under the Medical Practice Act of
1987 or any person licensed to practice the treatment of human
aliments in any other state or territory of the United States
who, in good faith, provides emergency care without fee to a
person, shall not, as a result of his or her acts or omissions,
except willful or wanton misconduct on the part of the person,
in providing the care, be liable for civil damages.”
The
Act as it currently reads was amended in 1998.Prior to that time, the pre-amended version immunized a
doctor from liability if a three-part test was passed: (1) the
doctor did not have notice of the injury; (2) the doctor
provided emergency care; and, (3) the doctor did not charge a
fee. The Act, in its current form, does not include the
“notice” provision.
There
is not a significant amount of case law on the Act. The Act has
been held to apply to a physician who was already in the
hospital when called to assist in an emergency. In Johnson v. Matviuw, the defendant was attending to one of his own
patient’s in the hospital when he was summoned to assist in an
emergency.(See also
Villamil v. Benages).
In
Heanue v. Edgcomb, the Court discussed the term “good faith.”
The Court held that the term “good faith” modifies both
“provides emergency care” and “without fee.” Plaintiff
argued that a physician could simply omit from an itemized bill
certain services to avoid liability and the Court remanded the
case so the parties could address whether the defendant’s
decision not to charge a fee was made in good faith.
Additionally,
in Rivera v. Arana, the Appellate Court, First District, commented on
the definition of “emergency” as that term is used in the
Act. The Court stated that a “flexible broad definition” was
logical given the purpose of the Act and the need for medical
providers to intervene and take care of people in certain
situations. The Court went on to state that the question of
whether an emergency situation exists is to be resolved on the
“… unforeseen, unexpected combination of circumstances
presented which require the need for immediate action,
assistance, or relief.”
The
other provision applicable to many of us in our practice is
Section 49/30 regarding free medical clinics.That section provides in pertinent part that:
“Free
Medical Clinic; exemption from civil liability for services
performed without compensation.
(a)A person licensed under the Medical Practice Act of 1987,
… who, in good faith, provides medical treatment, diagnosis,
or advice as part of the services of an established free medical
clinic providing care to medically indigent patients, which is
limited to care that does not require the services of a licensed
hospital or ambulatory surgical treatment center and who
receives no fee or compensation from that source shall not
liable for civil damages as a result of his or her acts or
omissions in providing that medical treatment, except willful or
wanton misconduct.
(d)The immunity from
civil damages provided under sub-Section (a) also applies to
physicians, hospitals, and other health care providers that
provide further medical treatment, diagnosis, or advice to a
patient upon referrals from an established free medical clinic
without fee or compensation.”
We
recently defended a case and the defense was successful in
dismissing the cause of action utilizing the above provisions.In our case, the plaintiff presented to a free clinic in Skokie, Illinois and was
treated by the defendant physician.The defendant physician provided treatment, diagnosis,
and advice and suggested a minor surgical procedure at a local
hospital.Further
medical treatment was provided by the defendant at the hospital
on referral from the free clinic and the hospital did not charge
the patient for the services rendered.The patient subsequently filed suit-alleging negligence
in the performance of the surgical procedure.In our case, the defense was granted summary judgment on
behalf of both the defendant physician, who initially saw the
patient at the free clinic, as well as the hospital and its
medical student, who provided further medical treatment upon
referral from the free clinic, using the above provisions.
Finally,
in the recent Tort Reform Bill, the legislature addressed
Section 49/30 of the Act.As
noted above, that provision deals with the free medical clinic.In sub-paragraph (a) of Section 30, the legislature added
to the list of health care providers covered to include retired
physicians and extended the services rendered at the clinic to
include home visits.In
sub-paragraph (d), the legislature again added retired
physicians to the list of health care providers delineated in
the Act and also expanded the scope of that section to include
hospitalization, office visits and home visits. The legislature
has also proposed that the free medical clinic may now receive
reimbursement from the Illinois Department of Public Aid,
provided that any reimbursement is used to pay for overhead
expenses of the clinic and not to provide a fee or other
compensation to any health care professional that is receiving
an exemption under this Section.
Apparent agency is
an important issue to understand in evaluating hospital exposure
in cases where the defendant physician is not an actual employee
or actual agent of the hospital.Apparent agency is essentially the plaintiff’s claim
that the hospital is vicariously liable for the acts of its
non-employees, or independent contractors, providing services at
the hospital.Where
a hospital leads a reasonable person to believe that the
physician or staff was its employee or agent, then the hospital
will not be permitted to later deny the employment or agency
relationship.The
three part test for apparent agency under Illinois law includes:1) a showing that the hospital or the purported agent
held themselves out such that a reasonable person could conclude
that an agency relationship existed; 2) where the agent’s
actions created the conclusion of agency, acquiescence must
occur by the hospital; and 3) the plaintiff was justifiably
reliant on the hospital in electing to receive care from the
purported agent.
However,
many times despite good factual arguments on the issues listed
above, the jury instruction on agency in Illinois can be difficult to
overcome for the defendant hospital. Should the issue of agency
actually get presented to the jury, the jury instruction is as
follows:
Under
certain circumstances, the liability of a party may arise from
an act or omission of that party’s apparent agent. In the
present case, PLAINTIFF has sued HOSPITAL as the principal.
PLAINTIFF claims that DOCTOR was the apparent agent of HOSPITAL.HOSPITAL denies that any apparent agency relationship
existed.In order
for an apparent agency to have existed, PLAINTIFF must prove the
following: First, that HOSPITAL held itself out as a provider of
SERVICES LIKE THOSE OFFERED BY DOCTOR and that PLAINTIFF neither
knew nor should have known that DOCTOR was not an employee of
HOSPITAL. Second, that PLAINTIFF did not choose DOCTOR but
relied upon HOSPITAL to provide services LIKE THOSE OFFERED BY
DOCTOR. If you find that DOCTOR was the apparent agent of
HOSPITAL at the time of the occurrence, then any act or omission
of DOCTOR was the act or omission of HOSPITAL, and HOSPITAL is
liable for the acts or omissions of DOCTOR. (Illinois Pattern Jury Instructions 105.11, 2005, 298-299.)
The
holding out, or reliance test, in practice is only used when
there is a dispute as to reliance by the plaintiff.However, the reliance test is not clearly articulated in
the jury instruction.The
wording of the jury instruction makes it more difficult to
prevail on an apparent agency defense even with good factual
evidence that the plaintiff did not rely on the hospital in
receiving care from the alleged agent physician.This makes it more imperative that all agency issues are
covered when deposing the plaintiff and/or heirs in order to
make the case as strong as possible that the physician defendant
was not an apparent agent of the hospital.Framing the deposition questions to more closely mirror
those issues in the jury instruction is helpful.However, even with the best factual scenario, an apparent
agency defense is still a difficult win in Illinois
for defendant hospitals.
It is
commonly understood that the health care profession is a
service industry which often makes significant physical
demands on its employees. For example, nursing and related
support staff must be able to lift, transport and care for
frail or obese patients.
Apparent agency is
an important issue to understand in evaluating hospital exposure
in cases where the defendant physician is not an actual employee
or actual agent of the hospital.