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Drug Screens

Post-Accident Drug Testing Prompts ADA Questions

A jury will have to decide whether an employer's post-accident drug testing constitutes a "disability-related inquiry" in violation of the ADA.
By: | September 19, 2014 • 5 min read
urinalysis

A window manufacturer could be forced to pay a large jury award and punitive damages because of its drug testing policies. A U.S. appeals court has sent the case back to a lower court to determine whether the employer’s tests violated the Americans with Disabilities Act.

The case, Bates, et al. v. Dura Automotive Systems Inc., presents a cautionary tale for employers seeking to prevent workplace injuries through drug screening. While the federal District Court had ruled in favor of the plaintiffs, the appellate court’s decision leaves the fate of the employer in the hands of a jury.

The Case

Testing the boundaries of what constitutes a medical examination or disability-related inquiry, Dura’s drug testing policy requiring disclosure of prescription medications raised questions that should be decided by a jury, the 6th U.S. Circuit Court of Appeals said. In reversing the ruling by the U.S. District Court, Middle District of Tennessee that the ADA prohibited the testing, the appeals court said the key issue was whether Dura’s test was designed to reveal an impairment or information about the employee’s health. Determining that a jury could go either way on the question, the appeals court sent the case back to District Court.

Specifically, the higher court reversed, vacated, and remanded the portion of the lower court’s judgment on employees’ ADA Title I claims against Dura related to testing for legal prescriptions that had machine-operation warnings. The higher court reversed the district court’s conclusion that the drug-testing protocol was a medical exam or disability-related inquiry and vacated a related punitive damages award, with one judge dissenting (see box).

According to the appeals court, it was for a jury to determine whether the testing would reveal medical conditions or was narrowly focused enough to avoid discriminating against employees who take prescription drugs.

Under Equal Employment Opportunity Commission definitions, a “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. One of the factors bearing on this determination is whether the test is designed to reveal an impairment or information about employees’ physical or mental health.

The appeals court saidit was not clear whether Dura’s testing to find out whether employees were taking machine-operation restricted prescriptions was a medical exam.

“The urine test itself revealed only the presence of chemicals,” the appeals court held. “No one suggests that the consumption of prescription medications containing these chemicals constitutes protected medical information (or even an ‘impairment’).”

Nonetheless, there was evidence of inconsistencies between Dura’s written and actual drug testing policies. The appeals court cited reports of Dura’s alleged disparate treatment of individual employees, which it said could “evince a pernicious motive.”

“For instance, one plaintiff … claims that [Dura] asked her directly about her prescription medications and fired her for not reporting them, and [Dura] allowed another plaintiff to return to work despite testing positive,” the appeals court explained.

There were also lingering questions about whether the testing amounted to a disability-related inquiry.

Weighing in Dura’s favor was how it used a third-party contractor to conduct the tests. Specifically, the appeals court explained that the test, which required positive-testing employees to disclose medications to the contractor who then relayed only machine-restricted medications to Dura, did not have to reveal information about a disability.

“[Dura’s] third-party administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same,” the appeals court explained. It noted that EEOC guidance defines a “disability-related inquiry” as a “question (or series of questions) that is likely to elicit information about a disability.”

The employees argued that the test was designed to seek information on possible weaknesses in workers and then exclude them from the workplace. But the appeals court held that a jury could conclude that Dura was trying to avoid gathering information about employees’ disabilities. Still, it noted that the testing went further than what the ADA’s drug test exemption for illegal drugs permitted.

Throughout its five-year history, the case has tested various provisions of the ADA.

In 2010, the appeals court held that only individuals with qualifying disabilities under the ADA could pursue a claim under a provision that prohibits employers from using qualification standards, employment tests, and other selection criteria that screen out individuals with disabilities.

In other words, employees in the case without disabilities could not establish that they came under the protections of that section of the law, and the appeals court held that the district court incorrectly classified their claims under that provision.

The Dissent

One appeals court judge in Bates, et al. v. Dura Automotive Systems Inc.,disagreed with the majority’s view of medical exams and disability-related inquiries.

“Some of the terminated employees provided [Dura] with doctor’s notes stating that the use of their prescription medication did not affect work performance,” Circuit Judge Julia Smith Gibbons wrote. “[Dura], however, refused to allow these employees to return to work unless they discontinued their medications regardless of whether the medications had any real likelihood of affecting their ability to perform the job safely.”

In Gibbons’ view, this tipped the scales toward a finding of discrimination because it disregarded medical advice.

Additionally, Gibbons felt that the majority took a “cramped view” of EEOC guidance on whether a test is designed to reveal an impairment of physical or mental health.

“An employer’s purpose in using a particular test must be considered in its ‘larger factual context,’” she explained. “In this case, that larger factual context includes how [Dura] used the test results.”

Gibbons also maintained that the tests had to be considered alongside Dura’s blanket-firing policy.

She questioned why the manufacturer would disregard the employees’ doctors who stated that the employees could perform their jobs safely in spite of their prescriptions.

Nancy Grover is co-Chair of the National Workers’ Compensation and Disability Conference and Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com.
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Legal Analysis

Exercise Caution With Mental Injury Claims

Employers must recognize that purely psychological injuries can be compensable under certain circumstances.
By: | September 19, 2014 • 2 min read
crime scene

The Court of Appeals of Virginia recently upheld the awarding of workers’ compensation benefits for a United Parcel Service Inc. delivery driver who claimed post-traumatic stress disorder after happening on a gruesome homicide at the home of a regular customer.

Takeaway

When a physical injury occurs, employers usually have a panel of medical doctors ready to provide to the claimant, so that the employer can direct the injured worker to a reliable, hopefully conservative, physician who can treat the employee’s injuries. Typically, employers do not have panels of psychiatrists or mental health care professionals ready to provide to an employee who has suffered a purely psychological injury. Employers must recognize, however, that purely psychological injuries can be compensable, and that they should have panels of mental health care professionals ready to provide to an employee if such an injury is claimed. Immediate treatment could make the difference between a quick return to work and an expensive period of disability.

The Case

In United Parcel Service, Inc., et al v. Prince, Record No. 0006-14-2, Court of Appeals of Virginia (Sept. 9, 2014), the employer was faced with a purely psychological injury. Prince was a delivery driver for UPS. Ms. Fassett was one of his regular customers. Prince had made deliveries to Ms. Fassett two to three times a week for approximately ten years and had a good relationship with her.  On January 7, 2013, Prince arrived at Ms. Fassett’s home for one of his regular deliveries. What he found when he arrived was a gruesome scene. He found Ms. Fassett lying in the doorway of her home. She had been shot several times. What was left of her face was covered with blood and shrapnel. Prince alleged that he had been terrified, as he did not know if the perpetrator was still on the premises.  Prince was subsequently diagnosed with post-traumatic stress disorder.

Court Findings

The Court of Appeals of Virginia affirmed the Virginia Workers’ Compensation Commission’s ruling that the claimant’s purely psychological injury was compensable. The Court recognized that the events confronting Prince constituted an obvious sudden shock or fright sufficient to constitute an injury by accident. As a result, Prince was awarded medical and wage indemnity benefits.

Psychological injuries are often the result of circumstances completely outside of the control of the employer. Employers, however, must be ready to respond to such claims when they arise. A proper panel of mental health care providers places an employer in a position to immediately respond to such a situation.

John T. Cornett Jr. is an attorney specializing in workers’ compensation defense at Lynch & Cornett P.C. in Richmond, Va. He can be reached at jcornett@lynchcornettlaw.com.
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Sponsored: Lexington Insurance

The Re-Invention of American Healthcare

Healthcare industry changes bring risks and opportunities.
By: | September 15, 2014 • 5 min read
SponsoredContent_Lex

Consolidation among healthcare providers continues at a torrid pace.

A multitude of factors are driving this consolidation, including the Affordable Care Act compliance, growing costs and the ever-greater complexity of health insurance reimbursements. After several years of purchasing individual practices and regional hospital systems, the emergence of the mega-hospital system is now clear.

“Every month, one of our clients is either being bought or buying someone — and the M&A activity shows no signs of slowing down,” said Brenda Osborne, executive vice president at Lexington Insurance Co.

This dramatic change in the landscape of healthcare providers is soon to be matched by equally significant changes in patient behavior. Motivated by growing out-of-pocket costs and empowered with new sources of information, the emergence of a “healthcare consumer” is on the horizon.

Price, service, reputation and, ultimately, value are soon to be important factors for patients making healthcare decisions.

Such significant changes bring with them new and challenging risks.

Physician integration

Although physicians traditionally started their own practices or joined medical groups, the current climate is quite the opposite. Doctors are now seeking out employment by health systems. Wages are guaranteed, hours are more stable, vacations are easier to take, and the burdens of running a business are gone.

“It’s a lot more of a desirable lifestyle, particularly for the younger generation,” said Osborne.

Brenda Osborne discusses the changing healthcare environment and the risks and opportunities to come.

Given the strategic importance of successfully integrating acquired practices into a larger healthcare system, hospitals are rightfully focused on how best to keep doctors happy, motivated and focused on patient safety.

A key issue that many hospitals struggle with is how to provide effective liability insurance for their doctors. Physicians who previously owned their practice are accustomed to a certain type of coverage and they expect that coverage to continue.

Even when operators find comparable liability insurance solutions for their doctors, getting buy-in from their staff is often an additional hurdle to overcome.

“Physicians listen to two things — physician leaders and data,” said Osborne. “That’s why Lexington provides assessments that utilize deep data analysis, combined with providing insights from leading doctors to help explain trends and best practices.

“In addition, utilizing benchmarks against peers helps to identify gaps in best practices. It’s a very powerful approach that speaks to doctors in a way that will help them improve their risk.”

Focusing on the “continuum of care”

There’s been a fundamental shift in how healthcare providers care for patients: Treatment is becoming more focused on a patient’s overall health status and related needs.

SponsoredContent_LexA cancer patient, for example, should have doctors in a number of specialties communicating and working together toward a positive patient outcome. But that means a change in thinking: Physicians need to work collaboratively with one another — not easy for individuals or groups that are used to being independent. Healthcare is a team sport.

“If there isn’t strong communication, strong leadership, and the recognition of proper treatment procedures between physicians, healthcare providers can increase the risk of error,” said Osborne. “The provider has got to treat the whole patient rather than each individual condition.”

That coordination must extend from inpatient to outpatient, especially since the ACA has led to a rapid increase in patients being treated at outpatient clinics, or via home health or telehealth to reduce the cost of inpatient care

“Home health is going be a growing area in the future,” Osborne continued. “Telehealth will become an effective and efficient way of managing and treating patients in their home. A patient might have a nurse come in and help the healthcare provider communicate with a physician through an iPad or computer. The nurse can also convey assessment findings to the physician.”

Metrics matter more than ever

Patients have not always thought of themselves as healthcare consumers, but that’s changing dramatically as they pay more out of pocket for their own healthcare. At the same time, there’s an increase in metrics and data available to the public — and healthcare consumers are drawing upon those metrics more and more when making choices that affect their health.

SponsoredContent_Lexington“Consumers are going to start measuring physicians against physicians, healthcare systems against healthcare systems. That competition will force everyone to improve the quality of care.”
– Brenda Osborne, Executive Vice President, Lexington Insurance

Think about all the research a consumer does before buying a car. Which dealership has the best price? Who provides the best service? Who’s offering the best financing deal?

“Do patients do that with physicians? No,” said Osborne. “Patients choose physicians through referrals from friends or health plans with minimal information. Patients may be putting their lives in the physicians’ hands and not know their track record.

That’s all going to change as patients’ use of data becomes more widespread. There are many web based resources to find information on physicians.

“Consumers are going to start measuring physicians against physicians, healthcare systems against healthcare systems,” said Osborne. “That competition will force everyone to improve the quality of care.”

Effective solutions are driven by expertise and vision

The rapidly evolving healthcare space requires all healthcare providers to find ways to cut costs and focus on patient safety. Lexington Insurance, long known as the leading innovative and nimble specialty insurer, is at the forefront in providing clients cutting-edge tools to help reduce costs and healthcare exposures.

These tools include:

  • Office Practice Risk Assessment: To support clients as they acquire physician practices, Lexington developed an office practice assessment tool which provides a broad, comprehensive evaluation of operational practices that may impact risk. The resulting report, complete with charts, graphs and insights, includes recommendations that can help physicians reduce risk related to such issues as telephone triage, lab results follow-up and medication management. .
  • Best Practice Assessments: High risk clinical areas such as emergency departments (ED) and obstetrics (OB) can benefit significantly from external, objective, evidence-based assessments to identify gaps and assure compliance with best practices. In addition to ED and OB, Lexington can provide a BPA for peri-operative care, prevention of healthcare-acquired infections, and nursing homes. All assessments result in a comprehensive report with recommendations for improvement and resources along with consultative assistance and support. .
  • Continuing Education: In an effort to improve knowledge, decrease potential risk and support healthcare providers in the use the most current tools and techniques, Lexington provides Continuing Medical Education credits at no cost to hospitals or their physicians.
  • Targeting the Healthcare Consumer: With Medicare reimbursement impacted by patient-satisfaction surveys, assuring a positive patient experience is more critical than ever. Lexington helps hospitals understand and improve the patient experience so they can continue to earn the trust of healthcare consumers while preserving their good reputation. .

To learn more about Lexington Insurance’s scope and depth of the patient safety consulting products and services healthcare solutions, interested brokers may visit their website.

This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Lexington Insurance. The editorial staff of Risk & Insurance had no role in its preparation.

Lexington Insurance Company, an AIG Company, is the leading U.S.-based surplus lines insurer.
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