This module moves us from the clinical sections into more administrative aspects of occupational medicine and is concerned with disability management and work fitness, as well as workers' compensation and work under that system, fundamentally a set of medical-legal administrative aspects of OM. Disability compensation systems, whether it's Social Security, workers' compensation, or private disability insurance, have a few of the same similar features, and we'll look at these here because it helps to understand how some of these systems grow up. First off, there are shared risk and finite resources. This means that there is a number of payers, fundamentally buyers of insurance, and that these resources are not bottomless. There's a limit to the money that can be spent. Administrative eligibility precedes medical evaluation. What does that mean? You have to prove that you were employed by this organization or unit before the medical evaluation happens. So if you're a worker filing for workers' compensation, you have to be a member, working member of that company or organization. There should be administrative control and procedural regularity, and this is why states regulate compensation systems in particular. The federal government regulates Social Security, and there are also state administrative laws for private disability. And the fifth, but one of the more important factors, is because of the finite resources, the benefits that get paid out to the injured worker or disabled worker are limited, and they usually provide only a proportion of what they have lost in total. This goes in particular for their lost wages. They do not normally recoup all of their lost wages, and that has to do with limitations and again the finite resources of the insurance system. In this module, we're going to meet a lot of medical legal definitions, and the first one is the distinction between impairment and disability. I think we're used to this in occupational medicine, but it's very confusing for anyone on the outside. Impairment can be the loss of a body part, loss of use of a body part or system, or derangement of a body part, system, or function. So for example, loss of a finger or a hand, loss of use of my arm or leg from a radiculopathy, or derangement of my lungs, consequent to asbestos, all represent impairments, and these can be codified and looked up. Disability, by contrast, is the decreased capacity of that injured worker to meet, in our case, occupational demands, but also possibly personal or societal demands that have resulted from or which stemmed from that impairment, that loss or loss of use. So impairment is more objective, if you will, whereas disability relates to the individuals functioning in life, including work and society. So therefore, as you can gather from the previous slide, disability becomes a matter of the context. So if I lost my index finger in an accident and I was sent to anyone or all of you for independent medical exams, all of you would essentially assign me the same impairment. You would write down loss of index finger from accident at work, whatever caused it, and most everyone would agree that that was that, and we wouldn't have any disagreement. The big question here is whether I'm disabled, and so the first question is, am I disabled from my work as an OCDoc, and the answer there is probably not, because I've got nine other fingers with which I can function, I've lost half my typing capacity and have to type only with my right index finger, but I could probably manage to do my doctor's job fairly readily. The next question, ask yourself, am I disabled from work as a surgeon? And you probably are thinking, well, maybe that depends, and it probably depends on what sort of work you do as a surgeon. If you're a very fine retinovitreous surgeon or do a lot of very fine vascular work, the loss may inhibit you from working. You may be able to work around it. If you're a bonehead and what you do is knees and hips all the time, then all you need to do is have a hammer and a drill, and you could probably function without that left index finger. Last question, am I disabled as a concert pianist? And the answer there is probably yes, because I'm unable to, because of the loss of one of the fingers, and therefore some of the notes in the repertoire that I would be expected to play at a high level, I might not necessarily be able to function well at that job. Context of disability judgment also depends on where it happens, and this has to do with state laws, with workers' compensation benefits, and with the type of jobs that are practiced there and the probable injury proportion, as well as the types of jobs that are available to people once they become disabled or injured from one job. So briefly, these aren't figures you have to have at your fingertips, but you can contrast Connecticut, which is a lot of office work, insurance work, and the like, which has a very low rate of disability at 63, with West Virginia, which is fundamentally twice that, and the jobs there are oftentimes in extractive industries, such as mining and forestry, and injuries may be both frequent, and injured workers may not be able to step into alternative jobs. I think one of the best ways to explain workers' compensation systems and how they grew up is to look at the history of how they came to be, and in the 18th and 19th century, there was no workers' compensation. In the 18th century, if you were a craftsman, you would make a chair, and you would cut each piece and assemble it and do the same for the next piece and the next piece, but you had your own tools, and the process was rather slow. With steam came machinery, and that increased the process speed, it increased the volume and the output, and it increased the mechanical energy of the processes so that workers were at risk from injuries and accidents that occurred to machines, and because of this increased mechanical energy from machines in factories, machines on the railroad, the rate of severe disabling injuries and deaths increased. Many more workers were being injured or killed, and so you had a lot of workers who were out of work, couldn't function otherwise, and you had widows and orphans. And because there were no workers' compensation laws at the time, injured workers had to sue under a common law or tort law, which is the same law that you sue someone for, for example, malpractice or for other types of injury that occur to you. You slip on their icy sidewalk, or you get hit by a car, and that goes under tort law and the common law. So the problem with the common law was similar to malpractice in that an employer was responsible for injury or death of an employee, but that had to result from a negligent act by the employer. And so therefore, you didn't have to just prove you were injured at work. You had to go to court and prove that this was employer negligence that cost you your arm or that killed your husband or something of that nature. And so this was slow, it cost a lot, it would take years to work itself through, and you never knew what the outcome would be, similar to any other court case. If an injured employee had to sue an employer under the common law, the employer had a number of defenses available. The main one of these was called assumption of risk. In other words, if the employer notified the worker that the job was hazardous, for example, wrote a contract and listed the hazards and the worker signed it, then the employer could come back and say, well, you had assumed the risks of the job. So if the worker worked in a coal mine, for example, the employer could list black lung disease, roof cave-ins, falls, machinery, et cetera, et cetera. And then the worker would sign the contract. And then if the worker were injured, the employer would come at them with a contract when it was their day in court and say that you had assumed the risk of this dangerous job. Negatory negligence and fellow servant rules meant that if the worker or a fellow worker were partially at fault or negligent, then again, the employer was off the hook. So at the time, the end of the 19th century, this was perceived as being quite unfair and weighted much too far in favor of the employer. Very few injured workers recovered anything for their injuries at work. So why have I been going on about the prehistory of workers' compensation? Well, this is designed to show you what the bargain that workers' compensation achieved when it was codified into law. So instead of having to sue at common law and show the employer was negligent, this became a no-fault compensation system. In other words, the employee, injured worker, only had to show that they were injured at the job and didn't have to show employer negligence. This required that the workers' comp insurance be funded by the employer, either through buying insurance or self-insurance, and that it be publicly administered. In other words, the state was the referee for disputes. On behalf of the worker, it provided timely benefits. In other words, instead of going to court to sue and waiting a year or two years, you got your medical benefits, the doctor was paid, and your time lost from work would be paid reasonably soon. What did the employer gain from this? The employer gained the fact that benefits could be limited or capped, and they might only cover a portion of the loss, in particular from lost time from work and lost wages, and that it became the exclusive remedy for an injured worker. In other words, the injured worker had no right to sue the employer under tort law. There was no such thing as pain and suffering damages and the like. It only covered medical and lost time, along with possibly indemnity for loss of a body part, and that expedited resolution of claims happened on both ends. So it was a little bit of a bargain where both sides gave up something. The worker gave up the right to larger benefits in exchange for this no-fault compensation system. The employer gained the limited benefits and the advantage of an exclusive remedy where the worker didn't go to court to sue for injuries. Every state has its own workers' compensation system. So there's 50 states plus territories, Washington, D.C., etc., each one individually. There are some federal compensation statutes that cover federal employees and railroad workers. A separate act covers those who work along the shore and the harbors, and the Black Lung Act specifically covers workers with co-workers' pneumoconiosis. Separate from workers' compensation programs, federal Social Security or Social Security Disability Insurance will cover disabled workers if they have paid into the Social Security system, if they're disabled at younger than age 65, and if the disability is expected to last more than 12 months. Needless to say, the compensation system becomes more complicated. Standard medical insurance interposes a payer between the physician and the patient. Here are interposed the employer, a possible insurer who may not be the employer, but an insurance agency, and a regulatory agency, which is generally the state who can adjudicate disputes. Because there are 50 states and 50 compensation systems, we're only going to talk about generalities on the workers' compensation system, which belong to most of the states. So who's entitled to workers' compensation if the worker has sustained a loss, an injury that arose out of and in the course of their employment? They have to have been at work or been doing something related to their work, and they have to be injured such that they lose time or potentially money for coverage of medical care. For wage losses, most compensation systems don't start paying lost wages on day one. In general, there's a waiting period of three to seven days, average is probably about a working week of five days or so, after which a paycheck will start. This is to keep the costs of short-term injuries low because individuals won't be paid lost wages for the first few days of an injury, and claims generally have to be filed within a specified time, and there are limitations on that. These belong differently to different states. It's worth remembering that not all workers are employees or work for a company. Domestic servants in a private home are generally employed individually, and at will, and not necessarily as full-time workers. Professional athletes have been considered private contractors who sell their services to teams. This has come to the fore, for example, in the debate over cumulative head trauma because none of them were eligible for workers' compensation. Seasonal agricultural workers, particularly because they tend to change employees as they follow the growing and harvest season, and contractors or subcontractors might not be covered, but some laws may require their workers to be covered. In some states, if it's a really small shop and less than three people are employed, then they may not necessarily be required to carry workers' comp insurance. Again, getting back to the history, the issue now with whether someone is eligible for payment via the workers' comp system is not who was at fault or was the employer liable, it's only was it work-related, did it happen at work, so the employee has to be at work. In general, commuting and non-work transport are excluded, however, there may be employees who are considered to be on the job 24 hours a day, such as maybe municipal employees, and their commutes may be covered as them being at work, and they have to be engaged in employment activities, so recreational and social activities are not covered. If you're in the after-hours company bowling league, you drop the ball on your foot and fracture your foot, that's not considered compensable under most statutes. What's available under the workers' compensation system? The main ones are the first three, survivor benefits are a rather specialized case and we won't talk about that, but the compensation system is supposed to pay medical and rehabilitation costs for an injury or an illness, it pays wage loss benefits to the injured worker, and if there remains some evidence of permanent impairment and permanent disability, it pays an indemnity for the loss or loss of use of a particular organ or limb. In almost all cases, medical care under workers' compensation is supposed to pay 100% of costs and first dollar coverage for medical treatment and assessment, this means that there's no copay, coinsurance, or other payments on the workers' part. If you think about it, this was designed so that injured workers, particularly the low-wage workers, didn't have to be out of pocket for their medical benefits. There can be negotiated fee schedules, for example, what the limits of what they will pay for, but it doesn't leave the worker with copayments and the like, and it covers all the things that are normally covered in medical visits, so treatment, assessment, diagnostic testing, medicines that are prescribed, medical supplies and durable medical equipment, orthotic materials, prostheses, and other medical necessary apparatus, and if, for example, if there's a severe head injury or something similar, professional attendant care, if it's considered medically necessary and under the direct orders of a doctor. Moving on to wage loss benefits, if an employee is temporarily totally disabled, in other words, they are unable to work at their normal job, those benefits, as I mentioned before, activate after a running period of from three to seven days in which the comp system does not pay the worker lost wages. Once it starts paying the worker lost wages, those benefits generally equal two-thirds of that person's average weekly wage that they were earning at the time they were injured, but that's up to a maximum allowable cap, so we'll see caps in the next slide, but it may generally be about $1,000 a week, so if I'm a hedge fund manager in New York and I'm making $10 million a week, this will not pay me $6.66 million, it will pay me $1,000 a week, and these usually get paid, they may get paid weekly or biweekly or monthly until the employee either returns to some sort of duty or they reach maximum medical improvement, and so here are some of the wage loss benefits and caps, and as you can see, they literally vary all over the map. Some progressive states such as Iowa have a high cap so that higher earning workers are recompensed for much of their wage loss. Generally in the middle is a cap of about $800, $900, $1,000, and all the way down to Mississippi where the cap on wage loss benefits is about $400 regardless of what you're making, so it matters where you are and it matters what the caps might be. Also, wage loss benefits don't account for cost of living adjustments, they may not be adjusted so that they reflect your wages at the time you were injured, and the long-term injured may be getting very, very small wage loss benefits because their salaries were small at the time, and it doesn't account for the wage increases that you might have gotten if you had continued to work, so it's stuck at what you were making at the time you were injured. So as we move on to look at various types of disability under the workers' compensation system, I'll remind you of the difference between impairment and disability, and these are somewhat used interchangeably in the comp system. We're going to see these referred to mainly as disability, which will refer to the inability to do your job as a consequence of your injury and therefore being impaired. And so disability in workers' compensation comes in four different flavors. It can be temporary. In other words, you return to work eventually. Or it can be permanent, which means either that you are permanently unable to work. That would be permanent total disability. Or permanent partial disability, in which you've sustained a loss which cannot be replaced. And total and partial can be referred to your ability to work as well. So temporary total disability is what we're mostly familiar with in the case of an injury that's seen fairly soon after it happens. And oftentimes, workers are unable to perform their job or any useful work for their employer. They may not be able to get to another job reassignment depending on the company. Or they may just completely not be able to work. But the key word in this case is temporary, that you expect the worker to eventually return to work at some point. And that recovery, at least in part and hopefully completely, is expected at some point in the future. You should obviously reassess these patients at regular and frequent intervals. Take your normal patient with low back pain. You know about the natural history of back pain. You know how it's going to evolve, progress, and eventually heal. And take that into account. And let the patient and the workplace know what's going on with that worker's ability. And when they're compensated, they're compensated at the wage loss benefits we looked at earlier. They get 2 thirds of their weekly wage up to that cap. So that covers temporary total disability when they're completely out of work. Temporary partial disability occurs when that injured worker can do some sort of modified work with restrictions, or they work in a reassigned job. So for example, they might be able to do four hours work where they normally did an eight hour shift. They can have their hours reduced. Or they may have some restrictions on their job task. If they were a heavy laborer, they may be now in a sedentary or low physical demand job. In other words, the job that they're doing is different, whether it's on time or whether it's on the sort of productivity they're normally used to. Anyway, it gets a little complicated with the worker's comp wage loss benefits. Usually when workers can do a part time job, oftentimes they may be paid at a lower rate because the job is not their own job or they're working reduced hours. And so the worker's comp wage loss benefits sort of fill in that gap between what they're getting paid at a lower wage by and fill in some of the excess there. And again, it's 2 3rds the difference between what they're making and their modified wages. So if somebody is able to work for four hours a day, the compensation system will pay 2 3rds of the other lost four hours in an eight hour day. The next of the legal definitions is maximum medical improvement. And so after a worker has been injured and they've been treated for a while, there may come a point where you cannot expect them to completely, wholly, or fully recover from that injury or illness or that there won't be any further lasting improvement anticipated based on reasonable medical probability. It doesn't mean that they can't go to Lourdes and be healed, but it's pretty unlikely based on your medical knowledge. So if I have a lumbar disc herniation, which is severe, and I've had a foot drop from that, and I'm operated on, and I go to physical therapy and do everything right, eventually a year down the road, I might still have some weakness in my foot. I might still have that foot drop. This is probably not going to get a lot better, may get very slowly better, but really probably not very much so. And so I've reached maximum medical improvement there. I'm about as good as I'm going to get. And so that marks the cutoff between the temporary disabilities, temporary partial and temporary total disability that we saw before, and permanent disability. In other words, it's your judgment that this is now permanent, and I'm not going to recover any further from it. Permanent disability comes in two flavors as well. There's permanent total disability and permanent partial disability. Permanent total disability usually occurs at MMI when that patient, injured worker, is considered permanently incapable of returning to any work. It depends a little bit on the jurisdiction, again, but in most cases, this requires the presence of a, quote, catastrophic injury, which may be defined by state law. And most of these cases here, everyone would agree that these are people who are highly unlikely to return to at least their old job and possibly to any other kind of work. So spinal cord injury, paraplegia, quadriplegia, limb amputation, particularly with the dominant arm, severe brain or head injuries, severe burns that may be either disfiguring or limiting, blindness and the like. And so, again, the permanently totally disabled worker is entitled to benefits that are defined by the state when MMI is reached. And that generally takes into account their pre-injury wages, pays them at about 2 thirds that level, up to a maximum allowable cap that is defined by the state. So the state may have a defined maximum in a dollar value. It may be $250,000 or $500,000, or it may be a maximum number of weeks of their allowable benefits paid at 2 thirds their injury wages. So it may say that this injured worker who's permanently totally disabled is entitled to 10 years of wages paid at that cap, depending again on the jurisdiction, but it's paying them not exactly a lump sum, but a sum that's payable out across usually about 10 years or so. Unfortunately, these are oftentimes very little money to meet the needs of these injured workers. And the injured workers may often have to be shifted onto some other disability system, particularly social security disability, assuming that they've paid into that. When the worker has reached MMI and they can't perform their work at a pre-injury level because of that impairment, they may be capable of modified or alternative duty, or they may still be at their same job, but they may have lost a body part or lost function in a body part. Then they're considered to be at permanent partial disability. In other words, they've lost some function, either anatomic or physiologic. In that case, the system pays a benefit, which is essentially an indemnity, an award for loss of that body part or loss of that body function. And that gets calculated based on an examination, other data such as spirometric testing for lung disease and the like. And we'll see in the next slide, states may have a schedule of rates or they may be called unscheduled. Many of you may be familiar with the metrics that are used. Some states have their own guidance to evaluation. Many, probably the majority of states, use the AMA guides to the evaluation of permanent impairment which oftentimes sets percentage values on loss or loss of use of a body part. The AMA guides are fairly straightforward. If there's, for example, orthopedic disability or musculoskeletal, you measure the limitations of motion. Here for the shoulders, abduction and adduction, flexion, extension, internal and external rotation. It gives you a number. You add or combine the impairments and out comes the number that you can assign to that degree of impairment. It gets a little trickier when there's sort of wide distances between impairments. So this gives you an idea of how respiratory impairment is classed under the AMA guides. And so very wide intervals, say in moderate or severe impairment from 26 to 50% impairment and 51 to 100% impairment depending on spirometric indices or exercise tolerance testing. This probably isn't useful for the boards but I just want to sort of point out some of the issues around standardized measures of impairment is that as we saw in the last slide, they may be subjective or they may give you wide margins. There's a lot of disagreement between examiners. In many cases, the scientific basis for the ratings is not really explicit. There may be economic and policy implications in fruiting particularly when states put out their own individual impairment guides. And it's difficult to classify important causes of disability or to put quantitative numbers on them. Things like chronic pain, reversible airways, obstructions such as asthma was always very difficult to quantify and psychological impairment. And the other problem is that it quantifies impairment which it gives you a fundamentally a number and that equates to disability. And if you remember my previous slide, remember that disability is contextual but this is really an attempt by compensation systems to put some number or some value on loss of a body part or loss of function. I mentioned before that states have scheduled and unscheduled benefits. These can be quite confusing but just to try and simplify it a little bit, states will often draw up a list or a schedule of what loss of a body part is worth. In many cases, it's something that's easily identified and quantified. It will give a schedule of the value of a hand or an arm and it can be in terms of number of weeks of salary or it can be in terms of just a dollar value to the body part. The other way to look at it is via unscheduled and this is usually along the lines of the AMA guides and that a percentage value that's taken from the AMA guides is used to determine what the benefits payable will be. So loss of half a lung, for example, or half a lung's function may be defined in terms of percentage via the AMA guides and then the state puts a dollar value on that whole person, say that whole person is worth $300,000 and then the percentage ends up being a proportion of that benefit or it can be in the number of weeks wages. I like to call this medicine for accountants. It's probably not necessary to go through the details. Nobody's going to ask you to do percentages on the boards, but it's worth knowing about how they're arrived at. So under disability assessment, we're going to move on from the worker's compensation system into legal areas that address disability, address capacity to work and attempt to ensure that disabled individuals might be accommodated at work and first and foremost is the Americans with Disabilities Act. So the definition of disability under the ADA is similar to that which we looked at under worker's compensation, but is a little bit broader. Disability is defined as having a physical or mental impairment that substantially limits one or more major life activities. We're really going to focus on work here, but this can be in other arenas of life. As well, it considers a disabled individual as someone who had a past impairment or a record of an impairment or as someone being regarded as having an impairment. Who does this mean? For example, this could be an HIV positive individual who may be to the naked eye, not impaired, but may be considered impaired or disabled as a result of that ongoing infection. The ADA explicitly excluded current substance abuse, so that's not considered a disability under the ADA. What does this mean? Practically, this is why you send or can send individual workers for a drug test prior to them being given an offer of employment and prior to them having a physical examination or a pre-placement examination. They can be excluded from anything further if they have a positive drug test that's considered indicative of substance abuse. In the past, implicitly excluded was pregnancy, mainly because it was temporary. However, now there are disabilities and impairments that go along with pregnancy, which may be considered qualifying disabilities. One point to remember about the ADA is that employees have to be qualified for the job before ADA considerations kick in. So you cannot just hire people because they're disabled. They have to have required education, work experience, training, et cetera, et cetera. So what does this mean? You can't have a high school graduate who's disabled qualifying for a job as a neurosurgeon. To hire a neurosurgeon, they have to have education through medical school, training through residency. You can possibly demand work experience or particular skills. They have to have a state medical license, potentially board certification. And you can't even ask for less specific job-related abilities, such as judgment. It's not clear whether a neurosurgeon needs interpersonal skills, but for other jobs, potentially. So anyway, so you have to have all of those credentials before you can become a qualified person with a disability because the job becomes first and foremost. Job qualification standards, though, under the ADA have to be job-related, and they have to be consistent with business necessity. So if you have somebody who, on the last slide, qualified according to all those credentials, and you're then examining them for their ability to do the job, you must really only limit your standards to those that are job-related. You can't screen out people from a job solely because they're disabled. They can be required to meet production standards. So for example, performance and attendance standards can come into the mix when you think about qualifying people. So if you have somebody who's an archilectic and can't come into the office until 11 o'clock and the office has to open up at seven, that becomes a performance or an attendance standard, and that's a reasonable qualification for the job. The essential functions of the job are those tasks without which the job doesn't get done. And ideally, or all the time, in fact, the employer should determine those in advance of hiring for the position, the reason being it leaves you, as doctor and the employer, open to some sort of legal challenge if they don't determine these ahead of time, and it leaves you a little bit at sea in determining at pre-placement examination whether that person is qualified or not if you don't have a list of those essential functions of the job. If tasks are infrequent or if somebody else can assume them within the employee group, then those aren't essential functions of the job. If everyone works in a rotation that one day a week someone goes out for coffee, that's not an essential function of the job because someone else can assume that and it's not really a specific essential function of that job, the job still gets done regardless of whether or not a group goes out for coffee. When you're doing pre-placement medical examination, you have to establish a baseline examination under which every individual being hired for that job class or job description undergoes a similar or equivalent evaluation. You can't just put in higher barriers or exceptions for specific workers unless you're applying them uniformly. Now, that doesn't mean that if you identify somebody who may be problematic in performing the essential functions of the job to make further inquiries, if there's an old history of a back injury or current back pain or some type of ongoing impairment related to that back pain, you can then ask for additional records, you can do additional tests to see if that particular person can function, but you can't make those exceptions at the very beginning. So everyone has to have a similar evaluation initially. You can apply specific tests of skill, for example, agility tests. In other words, these don't necessarily have to be strictly medical examinations, as long as, again, if you apply these uniformly. And to just remind you that you don't make hiring decisions, your job is to advise the employer about their new hiree's functional abilities and limitations if they're disabled in relation to their ability to perform the job functions and to do the job. You should determine what reasonable accommodations would allow someone with a disability to perform their job, and you should determine whether there are particular health or safety requirements that are not being met by that person and that might potentially prove a danger to themselves or to other workers. We mentioned it in the last slide, but another legal definition is that of reasonable accommodation. And that's defined as modifying or adjusting the job or the job practice or the work environment in a way that would enable a hired worker or someone working there to perform the essential functions of the job. So if they're disabled, what would enable them to continue to do the job in the way that's demanded of them by the employer? And this considers the abilities and limitations of that worker and the functional requirements of the job. We tend to think of reasonable accommodations in terms of fancy equipment, the space age chair and the fancy keyboard, but most reasonable accommodations generally involve job restructuring, modifying work schedules or shifting around task assignments to enable that person to work. So for example, if the person is a diabetic and is dependent on insulin, modifying their work schedule such that they only work a daytime schedule, they can have three regularly spaced meals and appropriate time to take insulin is a reasonable accommodation. You don't put them on rotating shifts or night shift because that then complicates their ability to control their diabetes. It can involve things like assistive equipment or it can involve provision of readers for people who are sight-impaired or interpreters for hearing-impaired workers. But in general, it oftentimes means shifting around the job or the work schedules to enable that person to do the job appropriately. The next definition is the determination when someone is undergoing a pre-placement examination as to whether they represent a direct threat to the health and safety of others or to themselves. In this case, there's something of a high barrier here. You have to adjudge that that person presents a significant risk of sustaining substantial harm or of causing substantial harm to themselves. It has to be specific and it has to be current and it has to be related to that specific individual and based upon their objective medical evidence. So the usual example here is the forklift driver with a seizure disorder. If they're poorly controlled and apt to lose consciousness while driving a forklift truck, you can think about the hazards that that will present to other co-workers and to themselves. That's substantial harm and you have information that it's specific objective on that specific individual and it's current. The employer has to consider reasonable accommodation to reduce or eliminate that risk, but it may be a little more difficult and the barrier might be a little bit higher to doing so. So another case, a little bit different than that forklift driver as to whether this person is a direct threat to themselves, this is a 24-year-old healthy male who applies for work as a firefighter or to go to firefighter training academy. Every one who applies for that job gets a huge laboratory evaluation and in this worker it shows an elevated iron. They get sent for further evaluation probably via their primary care doctor and that evaluation is consistent with the diagnosis of hemochromatosis. The question here is whether or not this applicant can be excluded from a job as a firefighter given that hemochromatosis may lead to diabetes, cardiac dysrhythmias, liver cirrhosis, various types of arthritis, and most of these are excludable conditions under the NFPA standards. In other words, you would be reasonably justified in excluding people with those conditions. So think about that for a moment. So as you probably suspected, that person's examination and the rest of their laboratory exams at the time they're being evaluated for the job indicate that there's no evidence for those end organ impairments. He's not cirrhotic, he's not got an arrhythmia, he's not a diabetic, and so there's no organ impairment and there's no functional limitations. So that end organ damage is not current, it's putative, it's speculative, and it's potentially out in the future, but it's not current. And as well, it can be modified with appropriate therapy. There's treatment for hemochromatosis that would prevent the end organ damage we saw in the last slide. So risk in that specific individual case is only speculative and not based on any current medical evidence. So this is someone who you couldn't exclude from that job based on the ADA because of a direct threat to health or safety. When it comes to medical decision making in the ADA, these are a few summary points. Ensure that you're always supplied with a job description and be familiar with the processes and the jobs that that organization is asking their workers to do. That way you'll be able to make better decisions about worker capabilities. You need to tailor your physical evaluation to specific questions about whether or not they can work or work effectively or need accommodations. Any specific testing, although you're allowed to do a lot of testing, you really should be doing it only to target to job performance and information that you think will be predictive of their functionality or their risk at the job. You should always get additional data as you need. They should come from their primary care or their specialist, or in some cases they may need to be sent to a specialist for information that you need. It's very difficult to assess the certainty or severity of risk or outcome. We always use that forklift driver with a seizure disorder, but that seems rather a no-brainer in many cases. There's kind of a fine line as to whether or not you can say this is going to have a severe outcome or not. It's a matter of negotiation with the employer a lot of times as to whether individuals can be accommodated, but you want to have a good communication with the employer. Always follow up your decisions because that will tell you whether you're acting appropriately or whether your decisions prove to be accurate or not. Along the line, here's some similar questions. Who's to decide what a direct threat to oneself is? We'll see some answers in the next slides. The degree of severity or certainty of an adverse outcome hasn't been specified by the EEOC who administers the ADA. It's not clear whether or not organizations can call business necessity a problem with respect to anticipated workers' compensation costs. In other words, if they suspect that someone is going to have a recurrent back injury, they may disallow them on the grounds of business necessity. A little bit of historical notes and perspective. The ADA is from the early 1990s, but across the course of the 1990s and the 2000s, a lot of decisions were interpreted rather narrowly by the Supreme Court, and so a lot of diseases and disorders were sort of chopped off as not qualifying as disabilities. One in particular was noteworthy with regard to the workplace, that in the case of Toyota versus Williams, it ruled that an assembly line worker who had carpal tunnel syndrome was not protected by the ADA, and they didn't have to accommodate her by her going to a different job. After some time, because the scope of the ADA had gotten further and further narrowed in 2008 with support from, believe it or not, both parties and the current president at the time, the ADA Amendments Act, or ADAAA, restored some previous protections, and we'll show you what those were on the last slide, and on the next slide. The other noteworthy case is one called Achazabal versus Chevron, and what happened there, Mr. Achazabal worked for an oil refinery. He had chronic hepatitis C. Chevron bought the refinery and sent everyone for a new pre-placement examination to determine whether they could work. Since he had hepatitis C and was working with petrochemicals, which may have some effect on the liver, the doctor who was examining him indicated that he presented a direct threat to himself and to his health because of his liver disease in working with petrochemicals. Achazabal took Chevron and the doctor to court, saying that he was the one to be the judge as to whether or not he was a direct threat to himself, and that he was able to assume that risk. This went on further up the scale of the courts, and they tended to rule in his favor until it got to the Supreme Court, which ruled instead in favor of the company, which said that the intention of the ADA to protect other workers extends to protecting the individual as well, so that its ruling was that if there are specific and documented risks in the workplace, you can't ignore them, and you should exclude people who you deem that would present a direct threat to their health, even if that individual desired to assume those risks. I mentioned the ADAAA on the previous slide, and to reverse some of the previous decisions, this Act prohibited considering ameliorative effects of mitigating measures when you assessed whether someone had a qualifying disability under the ADA, in other words, whether their impairment impacted or limited a major life activity. So what does all that fancy language mean? If you're a diabetic, you can ameliorate your disease. You can control it by taking insulin. In the past, when these were being narrowed, courts would rule that a diabetic who took insulin was therefore not someone with a qualifying disability. The ADAAA restored this and determined that, in this case, a diabetic who is taking insulin remains a diabetic, and therefore they have a qualifying disability under the ADAAA. So that this put back in protections for people who were disabled, even if their treatment allowed them to lead what we might essentially call a normal life or to not appear to us to be disabled. The one exception is the use of eyeglasses or contact lenses, which are considered fine for people to wear and not necessarily disabling. When you're performing exams under the ADAAA, you will be obtaining medical information. That information needs to be kept confidential in a separate medical file from personnel files, HR files, and it needs to be kept secure, as would any other medical information. Your report to the employer does not provide medical information, in other words, you don't report on the disease or the disorder. You report on the worker's fitness to work and ability to work, their potential limitations if they're disabled, if there are any direct threat issues, and the possible or suggested accommodations that would enable them to perform the essential functions of the job if they're going to work and be hired. One somewhat gray area concerns a report to first aid teams. Many companies, particularly if they're working in a big manufacturing facility, for example, would like to have information for their first aid or emergency response team in case something happens to them on the job. So if someone is a diabetic or has a seizure disorder, that would be useful information for the emergency response team to know. So you can ask that the worker supply that information, but you have to obtain the worker's consent for you to supply that there. In other words, it should not be automatically reported to emergency response or first aid teams unless or until you obtain that worker's consent. And as I mentioned before, you as doctor are not responsible for doing hiring. You're responsible for examining people, going through their medical records, identifying that person's abilities and impairment, areas in which they can be accommodated, whether or not they present a direct threat to themselves or others based on the medical criteria you obtain in that exam. It's the employer or the company that's responsible for the hiring decision. Once you have gone through that, it's important to realize that because you're not making the decision about that. The employer, however, needs to be clear with you as to what the job tasks are so that you can make a reasonable, well-informed and supportable decision. And in that case, they may want to get input from other experts. They may want to ask industrial hygienists about toxins. They might want to ask ergonomists about the hazards of the work for the musculoskeletal system, et cetera, et cetera. But just to remind you that you're not doing the hiring and you're not making the hiring decisions. In the last few slides, we'll see some other examples of law that pertain to employability and to potential disability in the workplace. The Family and Medical Leave Act doesn't specifically address impairment or disability, but what it does is allow individuals unpaid leave from their work, in our case, specifically addressing medical leave when that worker is unable to work because of a serious health condition. So, they don't necessarily need to show that they're impaired or disabled. They need only show that they have a serious health condition. There are other provisions in the FMLA that allow for birth and care of a newborn child or for adoption or for care of an immediate family member with a serious health condition. The FMLA applies to employers with 50 employees within a certain geographic area and the eligibility of employees usually means that they have to have worked for that company for a year before they're eligible for FMLA leave. It provides a total of 12 work weeks of unpaid leave during a 12-month period for these conditions. Generally, there's forms that have to be completed and certified, usually by the treating physician. Say, for example, if they're being treated for cancer, these are filled out by the oncologist, by the surgeon, etc., etc., and then decisions are made on it, usually by human resources, but oftentimes there is input from occupational medicine or the medical staff of that company to determine whether or not this is a serious health condition and would warrant or necessitate leave. And the last of the laws we'll look at in this set of slides is GINA, or the Genetic Information Non-Discrimination Act. This defines protected genetic information as including family health history, which can extend to fourth-degree relatives, which is a long way up and down the family tree, to the results of genetic tests and use of genetic counseling, which are more obviously obtaining genetic information, as well as participation in genetic research. So those are the definitions under GINA of genetic information. The main point of GINA is that employers may not use the genetic information, including the definitions we saw on the previous slide, to make decisions about hiring, firing, promotion, pay, privileges, or terms at the workplace, and to otherwise limit, segregate, or mistreat employees in the workplace. So genetic information cannot be used to discriminate against individuals. This includes, as we see in hiring and firing, but also has to do with benefits, for example, health insurance, life insurance, and other employer-sponsored programs. The employer may also not request, require, or purchase genetic information of a potential employee or his or her family members. Under GINA, there are some exceptions or protections for the employer vis-a-vis that last clause we saw in the last slide that says the employer cannot demand or attempt to obtain that genetic information. The first and probably most important for most of us is when the information is inadvertently supplied or provided as part of that worker's medical history. So for example, this is a drawback of electronic medical records, because EMRs normally spit things out in a template, and they will put in family history, unless you deliberately make it not do it or control it somehow. And they may also put out results of testing in that template. So some of that information may end up in the employer's domain by it being transmitted as part of a worker's compensation claim or some other, let's say, medical records for pre-placement exams and the like. So the employer may accidentally or inadvertently obtain that information, but they still may not use that information to deliberately discriminate against a worker on the basis of genetic information. Also, when the information is publicly obtainable, if a particular worker is heading up a chapter on a particular genetic disease or active in that, they may have a reason for doing so, but the employer may obtain that information publicly, but again, not do anything with it. And if there are monitoring programs that take into account genetic information, the most particular one I can think of is Borrelian disease, which is a genetically determined sensitivity. The employer may collect that information. They need a written authorization. They need a specific monitoring program, and the information back to the employer has to be an aggregate and not about individuals. As well, some employers may offer health services or genetic testing services, including services related to wellness programs. They have to have individual written authorization from their workers, and again, can't use it to discriminate. And the last one is my favorite, which is to say if the employer is in law enforcement and runs a CSI entity and requires the employee's DNA for quality control purposes, because obviously they are going to be handling genetic specimens, DNA matching and the like, and so they will need, the employer will need to exclude their workers' DNA tests from identifications in the forensic lab. And lastly, GINA requires the employer to maintain that information as confidential medical records of their individual workers, as any other health information really should be, but this is specific to the genetic information under GINA. It needs to be maintained in separate forms, in separate files. It needs to be kept from HR. It needs to be kept from insurance personnel, potentially benefits personnel, anyone without a medical reason to access that data who could potentially be making decisions about workers' employment, employment benefits, or could potentially discriminate against workers in that workplace. So it has to be firewalled, as would any other medical information. That's just good standard practice. So this concludes the lecture on workers' comp, disability management, worker fitness and a variety of laws. Thank you for listening. We'll move on to the next one in a short while.

disability management

workers' compensation

occupational medicine

impairment

disability

state regulations

no-fault compensation system

reasonable accommodations

medical decision-making

Genetic Information Non-Discrimination Act