In 1973, as part of its enlarging emphasis on individual civil rights, the US Congress passed the Rehabilitation Act, which set forth the rights of individuals with physical and mental handicaps. Two sections of the Rehabilitation Act are of particular interest to employers and physicians who provide occupational medical services to employers. Section 503 and 504 protect employment rights of handicapped persons. Section 503 is an affirmative action section that promotes employment. It applies to contractors and subcontractors of the federal government, which are mainly private industries, who hold contracts totalling more than $2500. Section 504, which is an anti-discriminatory section (rather than an affirmative action section), applies to institutions, such as nonfederal governmental institutions, non-profit organizations, hospitals and universities, that benefit from federal assistance. It is estimated that nearly half of the private businesses are covered by Section 503 and nearly all governmental and non-profit institutions are covered by Section 504. In addition, nearly all states that have passed legislation modeled after the Act that to a greater or lesser degree covers situations in which the Act does not apply. Thus, for all intents and purposes, all US citizens are covered by the intent if not the letter of the Act. Physicians who provide employment examinations for employers should be governed by the laudable intent of the Act, and by its effect on the conduct of medical examinations.
The definition of "handicap" in the Rehabilitation Act is not medically precise, but it dictates for whom the Act is applicable. A person is "handicapped" if he or she:
"Major life activities" including seeing, hearing, speaking, breathing, walking, learning, performing manual tasks, and caring for oneself; it also includes socialization, education, vocational training employment, transportation and adaptation to housing.
"Substantially limits" means the degree that an impairment affects employability. A handicapped individual who is likely to experience difficulty in securing, retaining or advancing in employment would be considered "substantially limited".
"Physical and mental impairments" include impairments of organ systems, mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities, and in some instances, alcoholism and drug addiction. Recently, the Supreme Court added active tuberculosis to the list, an action concerning an infectious disease that may have major application to other conditions such as AIDS. (See Chapter 20.)
A person may be handicapped even if no impairment actually exists; a person need only have a past history of impairment, or a history of having been regarded as having an impairment if, as a result, that person experienced difficulty securing, retaining or advancing in employment.
A "qualified handicapped individual" is a handicapped person who is capable of performing the essential functions of the job or jobs for which he or she is being considered, with reasonable accommodation to his or her handicap. "Reasonable accommodation" means the changes and modifications that can be made in the structure of a job or in the manner in which a job is performed without imposing an undue hardship on the conduct of business. Such accommodation may include modification of workplace facilities or restructuring the job itself, and often can be done with little or no cost to the employer.
Partly as a result of the stipulations of the Rehabilitation Act, the term "pre-employment medical examination" is an anachronism; "pre-placement" examination is more correct. The medical examination is given only after an individual is offered employment based upon other qualifications, contingent upon his or her being found medically qualified to travel to and from the job, be at the job and perform the duties and tasks assigned to the job. (See Chapter 18 on fitness-to-work evaluations.) These conditions dictate that the medical examination must be tailored to the job and not to the individual; the equal rights aspect of the Act dictates that all applicants otherwise qualified for the job, whether handicapped or not, must be examined medically for the job. To perform an examination that fits the letter and spirit of the Act, then, the examining physician must insist that the employer provide a thorough description of the job's tasks and functions, so that the physician can determine what physical and mental abilities are required of the applicant.
There are other restrictions placed upon the employer in determining whether a person is medically qualified for a job. First, although an applicant may be required to provide medical documentation of an impairment, the history of an impairment alone cannot be used to disqualify an individual from obtaining a job. Second, no person can be disqualified on the basis of physical or mental conditions that do not impinge upon the safe performance of the job. In general, an employer must show present inability to perform a job safety and effectively. The risk of future injury to self or others may be used as a criterion for denying employment, so long as the assessment of the risk is not merely uncertain or speculative. Finally, the employer must make a reasonable attempt to accommodate the individual. What is "reasonable" is an administrative and, if contested, a legal decision, not a medical one, although the physician may offer suggestions. If after a reasonable accommodation is attempted the employer anticipates that an applicant may be absent from work in excess of allowable sick leave, the employer may regard the individual as incapable of filling the position.
A physician should never be put in the position of approving or disapproving a person for a job. An employer should never ask, and the physician should never answer, "Should I give this applicant the job?"
Only the physician may determine types of medical procedures and examinations that should be included in a health assessment of a prospective or existing employee. In most cases, however, the employer will request or expect a specific test usually on recommendation of a medical advisor or their own medical director. The physician should supervise the process of collecting health information about an individual to ensure that appropriate procedures are followed.
The physician has the responsibility to provide the employer with an opinion of whether or not an individual has the capability to perform the functions of a job or has a health condition that represents a clear hazard to others in the workplace. The physician also has the responsibility to inform the employer whether or not the individual has a health condition that places the individual at high risk of suffering serious, adverse health consequences as a result of performing the functions of the job or exposure to the environment associated with the job. In identifying an individual as being at high risk of serious health consequences, all of the following should apply:
The physician and all occupational health professionals have an absolute responsibility to treat information obtained through an employment-related health assessments as confidential. Unless required by law or requested in writing by the individual, the physician should not release medical information to any third party. (See Chapter 30, on ethics.) The physician should provide the employer only with summary statements about an individual's health status and fitness-to-work.
Any restrictions that should be placed on the working conditions of an individual to protect the health of that worker or others in the workplace must be clearly communicated to both the employer and the employee. The physician has a responsibility to inform the individual of any medical care that is required to protect the health of that individual or others in the workplace. Although the employer may be informed that the individual needs medical treatment, no specific health information, such as the diagnosis, may be revealed to the employer.
All occupational health professionals have the responsibility to maintain clear medical records, to ensure the accuracy of those records, and to ensure that procedures are established and followed that protect the confidentiality of the medical records. The physician or nurse has the further responsibility to communicate, orally or in writing, to the individual any significant observations about his or her health status and to recommend further study, counseling, or treatment when needed.
The physician has the general responsibility to work primarily for the purpose of ensuring that the health of the employee is protected and maintained. This includes the responsibility to exercise independent medical judgment in conducting employment-related health assessments, regardless of the nature of the physician's relationship to the employer requesting the assessment. To do this effectively, the physician should have direct knowledge of the work environment in which the individual being assessed must function.
There are several resources available to assist physicians in meeting the requirements of the Rehabilitation Act. The President's Committee on Employment of the Handicapped in Washington, DC, interprets the Rehabilitation Act to the public and to the professions. Under its auspices is an information center known as the Job Accommodation Network, based at West Virginia University in Morgantown, which provides guidance on reasonable accommodation to employers and medical personnel assisting employers. There are also systems available that are designed to instruct employers on how to assess what abilities are required for individuals in particular jobs. This is discussed in greater detail in Chapter 18 in the context of fitness-to-work evaluations. A example of this is the Physical Abilities Assessment Manual of the County of San Bernardino, California. Other organizations that provide similar assistance are Med-Tox Associates of Tustin, California, and Advanced Research Resources Organization of Besthesda, Maryland. There are circumstances where a personal health problem is better managed and monitored in the worksite where the occasional attention of the occupational physician or occupational nurse at the worksite may prevent subsequent problems and complications leading to absenteeism or loss of work time. The management of brittle diabetics is one such problem and the treatment of essential hypertension at the worksite is another. Such individual patient management at the worksite should not be considered a substitute for the personal physician but complementary to personal medical care, providing the patient-worker with the best opportunity to remain productive on the job while ensuring that health care needs are met. This type of commitment places some creative strain on an occupational medicine service, which must accept responsibility for routine health care and close liaison with the worker's personal physician.