The Americans with Disabilities Act of 1990 ("ADA")1 was passed to combat discrimination against people with disabilities in a wide range of areas, including "employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services."2 The ADA provides specific directions to employers, communications entities, and transportation providers, among others, on how to best accommodate citizens with disabilities.3 However, nothing in the ADA, and little in its implementing regulations, specifically directs health care providers how to best remove the barriers that impede access to health care and employment in the health care field for Americans with disabilities.4
ADA litigation involving hospitals and health care providers covers many of the same issues as litigation involving other entities covered by the ADA. However, many of these issues take on a different tone in the health care field. For example, courts take special care to evaluate whether a health care employee's proposed job accommodation will affect patient care. The question of whether an employee poses a "direct threat"5 to third parties is magnified greatly when the employee is directly responsible for patient care. Also, providing effective communication is especially important when conveying information to patients or family members with disabilities in an emergency room.
This Article surveys four emerging issues that have become common in ADA litigation against health care providers. First, the Article discusses issues regarding a health care employer's duty to provide reasonable accommodations to employees with disabilities. Second, it explores problems hospitals face in dealing with employees with disabilities who may pose a direct threat to patients. Third, it discusses the duty to provide "effective communication"6 to patients or family members with disabilities, especially those who are deaf or hard of hearing. Fourth, it discusses whether hospitals must provide employment accommodations to independent contract providers. Finally, this Article concludes by discussing the need to balance the responsibility of ADA compliance with the responsibility of patient care.
II. Reasonable Accommodation Issues
Title I of the ADA makes employers responsible for providing "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee."7 The Equal Opportunity Employment Commission ("EEOC"), the federal agency in charge of drafting regulations to implement Title I, defines "reasonable accommodation" as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."8 Examples of reasonable accommodations include: making existing facilities accessible, restructuring jobs, modifying work schedules, reassigning an employee with a disability to a vacant position, providing assistive technology devices, modifying examinations or policies, and providing qualified sign language interpreters or readers.9 However, an employer is not required to provide an accommodation that would create an "undue hardship" for it.10
This Section will discuss four of the most commonly litigated reasonable accommodation issues in the health care industry. First, it will focus on cases in which employees with disabilities experienced difficulty lifting patients and requested accommodations. Second, it will review cases in which employees requested leave or schedule changes as accommodations. Third, it will discuss the problems involved with reassigning an employee to a new job as an accommodation. Fourth, it will examine cases involving the restructuring of health care jobs, particularly those involving the reassignment of patient caseloads.