ADA presents direct health and safety threats

Many OHS pros are being kept out of the loop with ADA management

          ore than 1 in 4 U.S. adults have doctor-diagnosed arthritis, per the Arthritis Foundation. To cope with pain associated with arthritis, doctors may prescribe medicine regimens to include a combination of drugs such as Gabapentin, Celecoxib, and when pain is severe, an opioid such as Tramadol. Containers for these drugs each include the printed safety warning: “May make you drowsy or dizzy. Use care when operating a vehicle, vessel, or operating other machines.”

My experience
    I am on the medicine regimen described above. X-rays that I received early this year confirmed that I have severe arthritis in my right hip. I am scheduled at the end of this year to have a total hip replacement, joining nearly one-quarter million Americans that annually have a hip or knee replacement procedure, per the 2021 American Joint Replacement Annual Report.

ADA
    My arthritis qualifies me to join the ranks of more than 60 million people covered by the Americans with Disabilities Act (ADA). The 1990 ADA and 2008 ADA Amendments Act (ADAAA), herein both described as ADA, prohibits discrimination, and guarantees that people with disabilities e.g., mental, or physical impairment that limits one or more major life activities, to name a few, such as walking, standing, lifting, bending, concentrating, thinking, communicating, or working, or impacts a major bodily function such as neurological, have the same opportunities as everyone else to “participate in mainstream American life.” See ADA.gov for more information.

ADA rising
    The BLS reported in February 2022 that 19.1 percent of persons with a disability were employed in 2021, up from 17.9 percent in 2020. The Society for Human Resource Management’s October 12, 2022, publication “Trends in Accommodating Employees with Disabilities” reports that higher number of US workers are being diagnosed with ADA covered conditions. ADA protected conditions on the rise include chronic back pain, heart disease, diabetes, arthritis, obesity, autism, breast cancer, skin cancer, mental health conditions, such as depression and anxiety, and, recently, long COVID i.e., symptoms such as fatigue and brain-fog last longer the 2 months. A JAMA publication on October 27, 2022, found that 15% of US adults with a prior positive COVID-19 test now experience long COVID.

ADA provisions for health and safety
    The U.S. EEOC booklet on prohibiting job discrimination under the ADA (1) provides the following Q&A:
Q. Can I consider health and safety in deciding whether to hire an applicant or retain an employee with a disability?

A. The ADA permits an employer to require that an individual not pose a direct threat to the health and safety of the individual or others in the work-place. A direct threat means a significant risk of substantial harm. You cannot refuse to hire or fire an individual because of a slightly increased risk of harm to himself or others. Nor can you do so based on a speculative or remote risk. The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual's present ability to perform essential job functions. If an applicant or employee with a disability poses a direct threat to the health or safety of himself or others, you must consider whether the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

Direct threat
    Section 29 CFR 1630.2(r) of the EEOC regulations states, in part, that the following factors must be considered to determine whether an individual would pose a direct threat:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
    Now that I have been personally thrust into the ADA-world, I am looking at the regulation with a much keener eye. I have many concerns. First, among the many activities that I have performed as an employee, and now with my consulting practice, and using the risk steps above, can I envision situations where I could pose a direct threat to myself or others?
    I have a high tolerance for personal risk, but until I receive my scheduled hip replacement that removes arthritis, my mobility, stability when standing, and at times ability to deeply concentrate, to name a few, are significantly diminished. I do envision situations where I would pose a direct threat to myself or others in the work environment.

    Second concern, Dr. Marcia Lang’s 2021 book “Hidden Disabilities in the Workplace” (Palmetto Publishing) finds that hidden or non-obvious disabilities make up the majority of the disabilities encountered in the workplace. People are reluctant to disclose their disabilities, medications, or medical treatments mostly because of discrimination concerns. Subtle or overt discrimination concerns by employers and others such as fellow workers, are why laws or regulations such as ADA, HIPPA, and others, such as the Genetic Information Nondiscrimination Act, were created.
    Third concern, OHS pros are likely the most qualified people at the workplace to understand, apply, and engage others such as MDs, with the EEOC’s risk-severity concept above. OHS pros may also be the best qualified people at the worksite to suggest and install reasonable accommodations to eliminate direct health and safety threats. My experience and recent deep-dive into the subject, however, suggests that many OHS are being kept out of the loop with ADA management.

Solutions
    The following practices may help reduce or eliminate direct health and safety threats under the ADA:
    • OHS pros should update their understanding of the ADA. Review of basic information at ADA.gov and EEOC regulations (see reference 1) are first steps.
    • There are many complex ADA issues. As a minimum, OHS pros should read the syllabus of the US Supreme Court 2002 decision in Chevron USA Inc. v Echazabal. After review, answer the question: “How does a business avoid paternalism but yet protect the interests of company e.g., future injury claims in managing direct threats to health and safety?"
    • OHS pros should team with HR, supervision, and legal to better address this topic. Among team improvements, determine how concerns of discrimination may be reduced among the workforce. A goal among this concept is to increase the number of workers that confidentially reveal their hidden disabilities.
    • New hire orientation training should include how OSHA and ADA interact.
    • Before particularly dangerous work e.g., elevated work, climbing, confined space entry, and electrical contact, to name a few, workers should rehearse the essential functions of the job in the presence of the OHS pro. Observed hesitancy or difficultly with work rehearsal should loop back to item #3 above for treatment consideration.
    • Examples of ADA reasonable accommodations installed at the workplace should be promoted among the workforce.
    • Be alert to ADA-like laws. Pregnant worker fairness act laws now effective in 30 states is one example.