Responsibilities Under the ADA

Copyright 2022

Physicians know they have a responsibility to provide health care to patients with mental or physical infirmities. But they may not know about the legal obligation to accommodate people with disabilities when it comes to hiring and other practices.

The Definition of Employee

The Supreme Court has offered guidance on the question of whether an employee-shareholder of a medical practice counts as an employee under the ADA's 15-employee test.

In Clackamas Gastroenterology v. Wells, the High Court ruled that standards provided by the Equal Employment Opportunity Commission (EEOC) can be used as a road map for this issue. It concluded that these factors determined that the physician-shareholders had too much control over the practice to be employees:

1. Can the practice hire or fire the individual or set the rules and regulations of the individual's work?

2. If so, to what extent does the practice supervise the individual?

3. Does the individual report to a superior in the practice?

4. Does the individual influence the practice and to what extent?

5. Did the practice intend the individual to be an employee either in written agreements or contracts?

6. Does the individual share in the profits, losses and liabilities of the practice?

If your practice employs more than 15 employees, it faces a number of responsibilities under the Americans With Disabilities Act (ADA). These responsibilities involve individuals with impairments that substantially limit one or more major life activities, including walking, lifting, speaking, hearing or seeing. Depending on the size of your practice, it can be tricky determining whether you meet that 15-employee test. (See right-hand box.)

Discrimination rules come into play as soon as a job description is posted. They continue through the application, job interview and hiring processes.

When drafting job descriptions and application forms, be aware that:

1. Job descriptions must focus on the essential tasks of a position. This protects disabled individuals from being disqualified for positions because they can't perform marginal or peripheral tasks.

2. Job applications cannot contain questions that focus on possible disabilities.

      • During the interviewing process, you cannot ask about specific disabilities, but you can inquire whether applicants believe they can perform the essential functions of the job with or without reasonable accommodation. However, the same question must be asked of all applicants — not just those who appear to be disabled.
      • You cannot ask applicants if they will need time off for medical treatments. Outline the required work schedule and your practice's leave policy and ask applicants if they can fulfill those requirements.
      • You can make a job offer contingent on passing a "medical exam" that proves the applicant's ability to handle the position. But these exams must be administered to all employees and the records must be kept confidential.

Exception: Drug testing isn't considered a medical exam, so those tests can be administered at any point in the hiring process. But the ADA does provide limited discrimination protection to recovering drug addicts and alcoholics.