Navigating the landscape of reasonable accommodation under the Americans with Disabilities Act (“ADA”) can be particularly challenging to clients in the healthcare industry. Need to wear a wrist brace? In most jobs, that would be no problem; in an area where a company must control for infectious diseases, it’s a no-go.
Lately, another statute has come into play, making an already complicated situation even worse – the Pennsylvania Medical Marijuana Act (“MMA”). What started out in 2016 as a very limited list of eligible conditions, has ballooned to 21. Forms of available medical marijuana, dispensaries, certified physicians, and card-carrying patients are all on the rise and expected to remain so. Since all 21 MMA-approved health conditions are also ADA-qualifying disabilities, employers will not be able to escape this perilous intersection.
Here is a list of Top 5 Pitfalls for healthcare employers at the crossroads of the ADA and MMA.
- Vague definitions in the MMA. Very little in the MMA is clearly and/or consistently defined, leaving employers to adopt best practices (and wait for improved regulations or relevant case law to develop). Of particular importance in the healthcare sector is coming up with a list of positions where the use of medical marijuana will endanger public health and safety.
- Treating medical marijuana differently. Employers have a tendency to create and apply a separate set of rules to employees using medical marijuana. The problem with that is two-fold. First, the MMA prohibits discrimination against medical marijuana users. As such, the use of a double-standard – whereby, for instance, the use of other prescription medicine is treated differently than marijuana – automatically violates the MMA. Second, employers tend to forget that, separate and apart from the MMA, medical marijuana users’ requests for accommodation (including requests to use medical marijuana) must be analyzed under the ADA (not just the MMA).
- Misusing Employee Health Examinations. Healthcare sector employers often make use of an Employee Health department, requiring employees to be examined there before returning to work. However, the reason for an employee’s absence was an ADA-qualifying disability, the use of an Employee Health examination can be problematic. There is no true “second opinion” available under the ADA. Employer-directed examinations are only available when the documentation provided by the employee’s healthcare provider is “insufficient” (a term narrowly defined by the ADA).
- Bad (or non-existent) job descriptions. Arguably the most important part of the reasonable accommodation analysis under the ADA is determining what is and is not an employee’s essential job functions. Where job descriptions are one-size-fits all, vague, outdated, and/or non-existent, it is difficult (if not impossible) to make this determination. Related to pitfall 1 above, where a healthcare industry employer believes a position impacts public health/safety, it should specify this fact in the job description.
- Casual accommodating (or not). A casual accommodation happens when a supervisor permits or denies a work restriction without going through a formal ADA interactive process. This is prevalent in the healthcare sector, where supervising physicians and nurses may not feel the need to check in with HR regarding their day-to-day staffing decisions. However, this kind of casual accommodation (or not) creates significant legal risk and should be avoided.
So, what can employers do about these pitfalls? Provide training. The most efficient way to positively impact ADA and MMA compliance is through the use of employee training Educate supervisors and Human Relations professionals about how the MMA functions, its relation to the ADA, what is required under the ADA for a reasonable accommodation (and what is not). In this regard, an ounce of prevention is worth a pound of cure!