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The Legal Risks of the ADA

While not specifically addressed in the law, the presumption that it is improper for employers to inquire into potential and current employees' disability status could be used in litigation against occupational medicine physicians. Prior to the ADA, the employer could not discriminate based on disability status, but it was proper for the examining physician to provide the employer with such information. Under the ADA, the inquiry itself is suspect. Even when such inquiries are permitted, the employer has only limited access to the information. The courts may find that the occupational medicine physician has a duty to refuse to make improper inquiries and examinations. This policy of noninquiry poses new ethical problems for occupational medicine physicians.

If failing to inquire into disabilities only subjects the employee and employer to the risk that the employee will not be able to do the job, there is no medical reason for the inquiry. In some situations, however, the risk is that the employee or others will be injured if the employee is medically unfit for the job. This problem arises with silent disabilities such as cardiac conditions. Without a potentially illegal inquiry, the employer will not know that the employee is disabled. The employer is allowed to inquire into potential employees' ability to perform the job, but such employees may not know which medical conditions pose a risk on the job and which are irrelevant to the workplace. This becomes an occupational medicine problem if the physician is asked to examine the employee but not to inquire into disabilities.

The problem posed by the ADA is that it encourages employees and employers to make decisions without information rather than to make informed choices about the risks of employment. This can create ethical conflicts for physicians, whose usual role is to ensure that patients have enough information to make an informed choice. Concomitant with that duty to provide full information is the duty to evaluate the patient's full medical status. Legally, the ADA does not provide any immunity for certifying physicians or employers. Employers remain strictly liable under worker's compensation for any injuries the employee suffers due to workplace conditions. If the occupational medicine physician is an independent contractor (or in states that recognize the dual-capacity doctrine), the injured employee will also sue the examining physician for malpractice for improperly certifying the employee as fit for the job. These legal and ethical problems make it questionable to agree to undertake preemployment and job placement examinations that do not fully explore the examinee's medical condition.

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