This article, co-authored by Bryan Schwartz Law's principal and Eduard Meleshinsky, is reprinted with the permission of Bloomberg BNA’s Health Law Reporter. The original article is available at here.
Nurses on the front lines of patient care have a significantly greater likelihood of sustaining a workplace injury than average private sector workers. The Bureau of Labor Statistics reports that nurses suffer greater numbers of musculoskeletal injuries than either firefighters or police patrol officers. Press Release, Bureau of Labor Statistics, Department of Labor, USDL-14-2246, Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, 2013 (Dec. 16, 2014), available at http://www.bls.gov/news.release/pdf/osh2.pdf. As a result, health care employers need to be particularly mindful of their legal obligations under the Americans with Disabilities Act (ADA) and state disability laws, separate from the requirements of the Family Medical Leave Act (FMLA), state medical leave laws, and workers’ compensation statutes.
I. The ADA Creates Strong Protections for Nurses
The Americans with Disabilities Act (ADA) ensures that people with disabilities can “fully participate in all aspects of society.” 42 U.S.C. § 12101(a). Title I of the ADA, the section addressing employment, provides that a covered employer many not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Under the act, discrimination includes failing to make reasonable accommodations to an otherwise qualified job applicant or current employee unless such accommodations would constitute an undue hardship on the covered employer. 42 U.S.C. § 12112(b)(5)(A). Determining whether a reasonable accommodation creates an undue hardship is a fact-intensive inquiry, and must include consideration of “the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility” and “the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity),” among other factors. Equal Employment Opportunity Commission, Notice No. 915.002, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002) (EEOC Notice), available at http://www.eeoc.gov/policy/docs/accommodation.html. See also 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2). Accordingly, proving a reasonable accommodation constitutes an undue hardship is a difficult task for all but the smallest health care employers. See, e.g., Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 142 (2d Cir. 1995) (denying summary judgment because “nothing inherently unreasonable or undue in the burden that an employer would assume by providing an assistant to an employee with disabilities”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 649 (1st Cir. 2000) (denying summary judgment on the basis that unpaid leave for more than one year was not an undue burden as a matter of law); Garza v. Abbott Labs., 940 F. Supp. 1227, 1241-43 (N.D. Ill. 1996) (summary judgment denied because $9,500 voice recognition system was not an undue burden as a matter of law); Equal Employment Opportunity Commission, Questions and Answers about Health Care Workers and the Americans with Disabilities Act, at Example 22 (2002) (EEOC Q&A) (presenting hypothetical where purchasing a $1,500 mechanical patient lifting device is not an undue hardship for a large hospital seeking to accommodate a nursing assistant with a back injury), available at http://www.eeoc.gov/facts/health_care_workers.html.
Furthermore, an employer cannot rely on generalized stereotypes of disabilities in deciding whether to grant a request for a reasonable accommodation. Instead, an employer must enter into a good-faith interactive process with an eligible employee to determine whether any reasonable accommodations are possible based on an individualized assessment of the employee’s restrictions and the essential duties of the job. 49 C.F.R. § 1630.2(o)(3).
II. Consider the Full Range of Accommodations Nurses May Require
While injury prevention should be every employer’s goal, nurses likely will continue to account disproportionately for on-the-job back injuries. Accordingly, hospitals should design their leave and accommodation policies to consider the unique facts at issue when nursing staff is injured. When a nurse suffers a back or other type of injury, she or he often remains capable of performing the vast majority of her job duties. If the back injury substantially limits her in one or more major life activities (personal care, driving for long periods, lifting, bending, sitting, working, etc.), she or he will have an ADA-covered disability. See, e.g., EEOC v. AutoZone, Inc., 630 F.3d 635, 637 (7th Cir. 2010) (employee sustained an injury to his back that limited his ability to carry out many activities requiring physical exertion, such that a reasonable jury could find him substantially limited in the major life activity of personal care); Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert. denied 528 U.S. 1182 (2000) (employee with a back injury had an ADA covered disability because of acute pain and substantial limitations on driving, lifting, and working in a broad class of jobs). It is incumbent on the employer to perform an individualized assessment of the injured nurse and determine whether the nurse can perform her or his essential job duties with or without reasonable accommodations. Many health care employers make the mistake of thinking too narrowly about what constitutes a reasonable accommodation. Under the ADA, the following is a nonexhaustive list of reasonable accommodations:
- Job restructuring,
- Modified or part-time schedule,
- Leave, and, if no other reasonable accommodation exists,
See EEOC Notice; See also 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2).
1. Job restructuring
An employer can choose to modify injured nurses’ job duties such that they are not required to perform certain physically demanding tasks permanently, or temporarily while recuperating. Healthy nurses can be assigned more strenuous activities while injured nurses remain capable of serving many less physically demanding functions in a hospital or medical facility, such as calling patients before a procedure and medical coding. Job restructuring is often a sound business decision given the costs of training new nurses. Hospital Patient and Health Care Worker Injury Protection Act, Ch. 554, § 2(d), 2011 Cal. Legis. Serv. (codified at Cal. Lab. Code § 6403.5) (California Legislature found that the cost “to train and orient each new nurse” was “between sixty thousand dollars ($60,000) and one hundred forty thousand dollars ($140,000)”).
2. Modified or Part-time Schedule
At times, an injured nurse may be released back to work by a doctor, but only with a reduced or modified schedule. Honoring such a schedule is critical for injured nurses who can return to work, but who, for example, still require time-intensive physical therapy to regain physical functioning. Health care employers must consider allowing a modified or part-time schedule unless doing so would impose an undue hardship on operations. See, e.g., Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 36 (1st Cir. 2000) (rejecting employer’s “general statements regarding the snowball effect” of allowing disabled employee part-time schedule because “[t]he ADA explicitly states that ‘job restructuring’ and ‘part-time or modified work schedules’ are potential reasonable accommodations”) (citing to 42 U.S.C. § 12111(9)(B)).
Often, a back injury can last more than the 12 weeks of medical leave guaranteed by the FMLA. However, inflexible leave policies that apply a one-size-fits-all approach to injured nurses violate the ADA. Additional leave should always be considered as a reasonable accommodation regardless of the injured worker’s FMLA eligibility, sick time, vacation time, or other benefits. Humphrey v. Mem’l Hospitals Ass’n, 239 F.3d 1128, 1137-39 (9th Cir. 2001) (employer violated ADA by failing to consider leave of absence in carrying out its “mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations”); Press Release, Equal Employment Opportunity Commission, Princeton Healthcare Pays $1.35 Million to Settle Disability Discrimination Suit with EEOC (June 6, 2014) (EEOC Release), available at http:// www.eeoc.gov/eeoc/newsroom/release/6-30-14.cfm (employer’s leave policy that “merely tracked the requirements of the federal Family Medical Leave Act” violated the ADA); Shannon v. City of Philadelphia, No. CIV.A. 98-5277, 1999 WL 1065210, at *5 (E.D. Pa., Nov. 23, 1999) (reasonable accommodation may require an employer “to grant liberal time off or leave without pay when paid sick leave is exhausted and when the disability is of a nature that it is likely to respond to treatment [or] hospitalization”) (citing Department of Labor regulations for disability accommodation law covering federally funded programs). The EEOC is targeting inflexible leave policies as one of its regulatory priorities, and has successfully obtained seven-figure outcomes and injunctive relief against health care employers for their inflexible leave policies. See EEOC Release. Health care employers should revisit any leave policies providing for automatic termination following a fixed period of leave.
Reassignment to a vacant position is an often misunderstood form of reasonable accommodation, though it is required under the ADA. 42 U.S.C. § 12111(9)(A). Reassignment should be used as an accommodation of last resort after the employer and employee agree that no reasonable accommodation is possible in the employee’s current position either long-term or permanently. If a nurse’s injury is so severe as to render her or him unable to safely handle patients or otherwise limits performing essential job functions, and no other reasonable accommodations exist, the health care employer must consider reassignment. If any vacant position is available for which the injured nurse is qualified, then the employer must reassign the nurse without a competitive application process. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (“ ‘reassignment’ must mean something more than the mere opportunity to apply for a job with the rest of the world.... ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned. . . .’ ”). However, the ADA does not require preferential reassignment if the vacant position would constitute a promotion. See EEOC Notice, at Question 24. Reassignment must be considered not just in the single facility in which the injured nurse previously worked, but at all of the employer’s locations. EEOC Notice, at Question 27 (employer’s obligation to reassign is not “limited to those vacancies within an employee’s office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area”). Disabled nurses still have a wide range of skills that can be deployed in a variety of positions such as medical coding, auditing, patient interviewing (including pre-visit calls), training other health care workers, quality assurance, supply management, infection control, and many more. In addition to the medical skills mentioned above, hospitals have many stationary (e.g., administrative) positions that an injured nurse could perform effectively. Frequently, employers do not consider all of these potential positions that a disabled nurse can successfully occupy. One overlooked position is case manager, with duties such as providing day-to-day case management to patients by “documenting the costs of care, preparing reports regarding a plan of care, and identifying and implementing medical services to meet the needs of” patients. Rieve v. Coventry Health Care, Inc., 870 F. Supp. 2d 856, 864 (C.D. Cal. 2012). A case manager position utilizes nurses’ wealth of medical knowledge and patient interaction skills without significant physical exertion. A good-faith effort by health care employers likely would uncover similar positions within their organizations should reassignment be necessary. In general, “Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the [ADA] if a reasonable accommodation would have been possible.” Humphrey, 239 F. 3d at 1137-38 (internal citations and quotation marks omitted).
III. Workers’ Compensation Compliance Does Not Equate to ADA Compliance.
Because nurses are frequently injured on the job, they often file a claim for workers’ compensation benefits in conjunction with taking a medical leave. A common mistake committed by health care employers is substituting compliance with a workers’ compensation statute for compliance with the ADA. This mistaken belief can lead to costly liability. The authors of this article represented a registered nurse in a disability accommodation action against her health care employer for failure to timely accommodate her disability. She injured her back at work and went on leave. When she returned, she was reassigned because her physical restrictions prevented her from serving in her previous position. After three months, however, she was notified that she would be put on indefinite, unpaid leave until her restrictions were determined to be “permanent” by the workers’ compensation medical examiner—a process that can take years. Indeed, she was forced out on unpaid leave for 19 months without any attempt by the employer to explore reasonable accommodations such as reassignment to a different position. Conflating ADA obligations with workers’ compensation obligations, or those under leave laws or other statutory schemes, can lead to liability. In the case just discussed, the nurse was forced out of her job without any consideration of a reasonable accommodation (of which there were many possible) because of a mistaken belief that no accommodation was necessary until the workers’ compensation process had been completed.
A prudent health care employer will ensure that its ADA policy is reviewed for compliance with the ADA’s demanding requirements. If you employ nurses, you should be helping disabled nurses to keep utilizing their valuable talents and experience in your service, and in service of your patients.