What should your practice do when it learns that one of its own physicians or staff may be a danger to patients? The answer probably seems obvious. After all, patient care is the first priority of any physician practice and it is fundamental to “do no harm.” So, of course, the answer must be to remove the unsafe professional.
Unfortunately, it is not always that simple. Workplace laws restrict the circumstances under which disabled employees may be terminated. Removing a physician (or other employee) who holds a partnership stake in the practice is also problematic, and most employed physicians have contracts, as do some other healthcare providers. It is therefore rarely as simple to terminate a potentially dangerous employee as it should be, notwithstanding that employment is “at will” in most states.
How should you handle an employee who appears to be suffering from an impairment that potentially compromises patient safety — especially when the signs are subtle or appear only rarely? There are many such impairments, including addictions, mental-health problems, or even some physical conditions. A diabetic, for instance, may not get a needed lunch break during a busy day. Impaired providers may present a grievous danger to patients. Yet most critical care employers are not well equipped to recognize or appropriately handle such crucial issues when they arise.
Nightmare scenario
Suppose your practice suspects that one of its partner-physicians is a substance abuser? Then, what if, when confronted, the suspected doctor discloses that he is a recovering addict who has fallen off the wagon and needs to take a week off to attend counseling as part of a rehabilitation program?
Finally, what if, while you and the rest of your colleagues are digesting all of this, you are contacted by the head of a rehabilitation program and the substance-abusing doctor’s lawyer who both want to talk about “accommodations” and who threaten a lawsuit if the physician group does not comply?
What would you do?
This very common scenario is only one of the ways that physician practices find themselves confronted with the need to deal with potentially dangerous employees. Dealing with these issues within the law requires care and sophistication. They implicate the Americans with Disabilities Act (ADA), privacy and defamation issues, and the corporate or partnership structure of the practice itself. Making the wrong moves in this context often leads to six- or seven-figure employment litigation. So how does one steer through such dangerous and turbulent waters?
The ADA
The ADA applies to and protects employees who suffer from, have a history of suffering from, or who are “regarded as” suffering from a condition or impairment that fits the legal definition of a “disability.” It prohibits employers from discriminating against or harassing such employees. It also requires employers to make “reasonable accommodations” for those individuals.
These “reasonable accommodations” may include, among other things, granting leave requests, shuffling schedules, or reassigning nonessential duties. And as important as the “reasonable accommodation” requirement itself is, just as important is the related ADA requirement that employers “engage in an interactive process” with the employee to determine the reasonableness and efficacy of the requested accommodation.
Employers who terminate rather than engage in this “interactive process” do so at their peril. The ADA is set up to punish employers who make hasty negative employment decisions in the face of requests for accommodation.
Although the ADA does not apply to current drug users, things change the moment a suspected substance abuser self-identifies as “recovering.” It is often very difficult to know for sure that a person showing signs of a drug problem actually has one. By the time such an issue is clearly identified, the accused substance abuser often becomes a “recovering” substance abuser covered by the ADA and is requesting accommodations.
So faced with this scenario, would your practice be automatically precluded from terminating the physician because the physician is “recovering”?
No. The ADA does not prohibit any employer from removing a dangerous employee from the workplace, only from making a snap decision to fire that employee when it appears that a disability may be the cause for the danger.
Even a “disabled” employee may be terminated when, despite any reasonable accommodation, the employee remains unable to perform all essential job functions. A “disabled” employee may also be terminated when, despite any reasonable accommodation, the employee would pose a “direct threat” to himself or others in the workplace.
In healthcare, this translates into determining whether and to what extent the impaired physician or other employee would present a realistic danger to patients. You can make these determinations to prevent an impaired healthcare professional from continuing employment, but the ADA significantly slows the process by imposing a specific course of action.
