The Legal Risks of the Ada
Although 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.
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 workers’ 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 may 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 pre- employment and job placement examinations that do not fully explore the examinee’s medical condition.
The provisions of the ADA do not preempt specific federal laws and regulations on evaluating persons in certain public safety positions such as aviation and transportation. However, the regulations do make it difficult for an employer to disqualify a person based on a threat of harm to themselves or to others. This conflicts with the increasing pressure on employers to protect fellow employees and the public from dangerous employees. The ADA’s limitations on preemployment inquiries on behavioral problems also conflict with efforts to encourage employers in businesses such as child care and delivery services to protect the public by screening for sexual offenders and other dangerous individuals. The ADA does not give employers immunity for liability for injuries caused by a dangerous employee.