Review what expanded ADA means for your practice

In September 2008, on his way out the door, then-President George W. Bush signed a bill that expanded the Americans with Disabilities Act after years of Supreme Court decisions had nibbled at its edges. And soon, those expansions are going to be enforced.

As of Jan. 1 of this year, several previously excluded health issues were added, including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression and bipolar disorder. Enforcement, however, did not begin immediately.

How these new requirements will be enforced is the subject of what the Equal Employment Opportunity Commission calls town hall listening sessions, being held through November.

Experts say physicians and their practices need to be aware that new requirements increases the risk of ADA violations.

"Physicians have a tendency to diagnose their employees. That is a mistake," said Tracey Jaensch, a lawyer and partner with Ford & Harrison in Tampa, Fla. "They also try to treat their staff members, which I don't recommend."

The ADA requires businesses with at least 15 employees to make reasonable accommodations for the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business.

The most common mistake practices make, experts say, is to presume by too much or too little what an employee with a chronic illness or disability can accomplish. Doctors also are cautioned not to try to diagnose their employees.

"Conversations need to be limited to whether the person can perform the essential functions of their job with or without an accommodation," said Jaensch.

Other steps a practice can take to avoid ADA-related complaints include having a nondiscrimination policy that mentions disability and other categories covered by federal and local legislation. Physicians also need to ensure that employees are trained in ADA issues and the expanded definition of what it covers.

Also, because many medical practices are not large enough to have a dedicated human resources person, experts recommend charging one person with handling situations that fall under the ADA.

"Consistency is important," said Joyce Ackerbaum Cox, a partner in the labor and employment group of the Florida law firm Baker Hostetler. "And every request needs to be considered on a case-by-case basis."

The employee should initiate requests for an accommodation to carry out the essential functions of the job.

The ADA says employers must provide reasonable accommodation, although this may not necessarily be what the employee suggests. Employers also can ask for documentation from the employee's treating physician to aid in making these decisions. Such paperwork should focus only on issues relevant to the essential job duties, and any medical information should be kept confidential.

"Employers are entitled to have some information, but this is limited in scope. You are not allowed to go on a fishing expedition for their entire medical history," said Cox.

The definition of a reasonable accommodation changes based on the essential functions of the job and the nature of a person's illness, but some common examples include:

• Extended unpaid leave. Practices with at least 50 employees also fall under the Family and Medical Leave Act that requires employers provide up to 12 weeks of unpaid leave in certain situations.
• Special equipment. Practices may need to supply telephones designed for those with hearing impairments or lifting devices for those who have physical restrictions.
• Altered schedules. It generally would not be considered an unreasonable request to allow time for an employee with diabetes to inject insulin or eat a snack.
• New assignment. Practices could be expected to consider moving an employee into a vacant position that suits his or her skills and offers a better fit for his or her disabilities.

Examples of accommodation requests that could be classified as an undue hardship for the practice:

• Granting sick leave for an unspecified amount of time.
• Providing personal equipment, such as wheelchairs or hearing aids.
• Allowing an employee to work from home if it compromises patient confidentiality.
• Creating a new job.