We recently hired an operating room nurse, who informed the head surgeon yesterday that due to chronic kidney problems she takes pain medication during the day. The head surgeon is now very worried about liability and patient care if this employee is on a pain medication. We do not know what medicine it is.
Can we ask the employee for more detail? Can we limit her job responsibilities with direct patient care? Any help or advice you can give would be greatly appreciated. Thanks.
Ann Kiernan replies:
Under the Americans with Disabilities Act, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a “direct threat.” The EEOC’s ADA regulations explain that “direct threat” means “a significant – not just slightly increased–risk of substantial harm to the health or safety of the person or others that cannot be eliminated or reduced by reasonable accommodation. The determination that someone poses a “direct threat” must be based on anindividualized assessment of that person’s present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. 29 C.F.R. § 1630.2(r).
In an enforcement guidance the EEOC was very clear about the need for individual assessment:
33. Does an individual pose a direct threat in operating machinery solely because s/he takes medication that may as a side effect diminish concentration and/or coordination for some people?
No. An individual does not pose a direct threat solely because s/he takes a medication that may diminish coordination or concentration for some people as a side effect. Whether such an individual poses a direct threat must be determined on a case-by-case basis, based on a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence. Therefore, an employer must determine the nature and severity of this individual’s side effects, how those side effects influence his/her ability to safely operate the machinery, and whether s/he has had safety problems in the past when operating the same or similar machinery while taking the medication. If a significant risk of substantial harm exists, then an employer must determine if there is a reasonable accommodation that will reduce or eliminate the risk.
Based on this EEOC guidance, it appears that you have legitimate reasons for sending the nurse for a fitness-for-duty examination, with the goal of finding out whether her medication’s side effects influence the nurse’s ability to safely perform her operating room duties. Make sure you send her to a physician who specializes in pain management. You may also want to look at the EEOC’s Questions and Answers about Health Care Workers and the Americans with Disabilities Act, and, of course, consult your local employment lawyer.
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.