24 octobre, 2006 16:17

Health Care Employers May Balance Accommodation of Disabled Employee Against Patient Safety

Christine P. O'Hearn

New Jersey Law Journal

October 25, 2006

The Americans with Disabilities Act, 42 U.S.C.A. 12101, and New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, require employers make reasonable accommodations for disabled employees. In a health care setting, particularly for employees with patient care duties, patient safety is a paramount concern which often curtails the disabled employee's entitlement to accommodations. Courts struggle with determining what accommodations are reasonable and when a disabled employee poses a threat to patient safety such that no accommodation can be made. However, the trend heavily favors health care providers where patient safety is demonstrated to be a concern.

Under both the NJLAD and ADA, an employee must establish they can perform the essential functions of a job to establish a prima facie case of discrimination. Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005); Svarnas v. AT&T, 326 N.J. Super. 59, 73 (App. Div. 1999); Conshenti v. PSE&G, 364 F. 3d 135, 151 (3d Cir. 2004). In Anderson v. Exxon Co., U.S.A., 89 N.J. 483 (1982), the New Jersey Supreme Court explained:

Where it is obvious to the parties, as it was here, that physical qualifications are in issue, complainant should have the initial burden of proving that he or she was in fact qualified for the job in terms of the general qualifications and in terms of the physical qualifications. Only when those first two hurdles have been surpassed will the burden shift to the employer to demonstrate the affirmative defense that it reasonably arrived at the opinion that the worker's handicap precluded performance of the job.

The affirmative defense that an employer reasonably arrived at the opinion the workers' handicap precluded performance of the job is based on N.J.S.A. 10:5-2.1, which states "[n]othing contained in this act shall be construed to ... prevent the termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment ... ." (emphasis added).

Under N.J.S.A. 10:5-2.1, the employer is expressly accorded some leeway in his evaluation of an applicant's job capabilities; that enactment gives effect to an opinion of lack of job qualifications or inability to perform on the job if that opinion is "reasonably arrived at." Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988).

In Jansen, the court explained N.J.S.A. 10:5-2.1 "leave[s] the employer with the right to fire ... employees who are unable to perform the job whether they are generally unqualified or because they have a handicap that in fact impedes performance." In deciding whether the person's handicap impedes performance, the employee may consider the risk of harm to that individual and the other employees around him. The risk of harm must not be certain; rather, the employer must only conclude "continued employment of the employee in his or her present position poses a reasonable probability of substantial harm."

Similarly, under the ADA, an employee is not qualified for employment if they pose a "direct threat" to others in the workplace. 42 U.S.C.A. 12113(b). 29 C.F.R. 1630.2(r) defines "direct threat" as:

a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a 'direct threat' shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.

When there is a reasonable basis to question an employee's ability to perform, an employer may require the employee submit to a medical examination to determine the employee's fitness for duty. See 29 C.F.R. 1630.14; Tice v. Centre Area Transp. Auth., 247 F.3d 506 (3rd Cir. 2001).

New Jersey and federal courts have applied the affirmative safety defense rather liberally in the context of health care workers. The 3rd Circuit has held "in no way would a hospital be forced to accommodate an unqualified physician if he poses a direct threat to the health and safety of others." Menkowitz v. Pottstown Mem. Med. Center, 154 F.3d 113, 121 (3rd Cir. 1998). Courts have considered many disabilities such as alcoholism, HIV, reflex sympathetic dystrophy, hearing impairments, depression, stress, attentional deficit disorder and narcotic addition. If the employer provides reasonable evidence of risk to patient safety, the employee is generally determined to not be qualified for employment.

With respect to HIV, most courts recognize the obvious patient risk and hold health care workers not qualified for employment unless the employee demonstrates the risk can be eliminated.

In summary, health care providers have a "right and duty to ensure that all physicians at the hospital practice within reason, safely and skillfully." Judice v. Hosp. Serv. Dist. No. 1, 919 F. Supp. 978, 983 (E.D. La. 1996). This obligation often trumps the disabled health care worker's rights under the NJLAD and/or ADA. However, employers are often in a quandary because the failure to take action against a disabled employee may lead to claims of medical malpractice, whereas action taken against the disabled employee may lead to a claim of discrimination.

Christine O'Hearn is a partner with Brown & Connery of Westmont, N.J., and concentrates her practice in labor and employment litigation.