American Journal of Law & Medicine

Limiting Occupational Medical Evaluations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act

Although medical care delivery by one's personal physician is the paradigmatic American healthcare arrangement, in the workplace setting, many Americans undergo medical evaluations to assess their fitness for duty or degree of impairment. This Article explores the complex and evolving legal status of occupational medical evaluations. Beginning with the legal and ethical frameworks of occupational medical practice, the Article then examines the effects of increasingly detailed legal regulation under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act on employees, employers, and physicians.

  I. INTRODUCTION
 II. LEGAL AND ETHICAL FRAMEWORK OF OCCUPATIONAL MEDICAL
     EVALUATIONS
     A. Development of Occupational Medicine
        1. Medical Evaluations
        2. Occupational Physicians
     B. Physician-Examinee Relationship
     C. Ethical Responsibilities.
III. MEDICAL EVALUATIONS UNDER THE AMERICANS WITH
      DISABILITIES ACT
     A. Preemployment
     B. Preplacement
     C. Post-hiring or Periodic.
 IV. GINA AND THE DISCLOSURE OF GENETIC INFORMATION.
     A. Legislative History and Congressional Intent
     B. GINA'S Title II Protections.
        1. Definition of Genetic Information.
        2. Antidiscrimination and Privacy Protections
     C. GINA in the Courts.
        1. Review of GINA Complaints
        2. EEOC Cases
        3. Individual Litigants
        4. Judicial Limitations
  V. MODERN PRACTICE OF OCCUPATIONAL MEDICINE
     A. Medical Evaluations
     B. Access to Genetic Information
     C. Other Issues
        1. Workers' Compensation
        2. Health Promotion
        3. Predictive Health Information
VII. CONCLUSION

I. INTRODUCTION

Occupational medicine is a preventive medicine specialty. Its primary goal and core value is to keep workers from harm ("primary prevention"). When harm has occurred, the goal shifts to limiting the consequences through health surveillance ("secondary prevention") and early and effective treatment. When permanent impairment (loss of function) occurs, the goal shifts again to disability prevention and management ("tertiary prevention") by monitoring work capacity (for return to work or retraining), rehabilitation, and compensation. Although practice patterns vary greatly, most occupational physicians have become less involved over the years in the primary medical care of injured workers, leaving this to other primary care providers, while becoming more involved in disability management and navigating through the workers' compensation system. A majority of occupational physicians practice in clinical settings, including freestanding occupational medicine clinics and multi-specialty clinics and hospitals. (1) Only 16.3 % of occupational physicians are full-time, salaried employees working in industry, (2) even though employers use many more physician services through contracts or consulting arrangements.

Some generalist physicians also have become increasingly involved in direct health promotion ("wellness") activities that support the personal health of employees, but which are generally unrelated to occupational hazards. Specialist occupational physicians are much more likely to be involved in complicated and disputed cases in the workers' compensation system. Many occupational physicians, usually more senior and experienced, assess disease causation using all available information, including family history. They may also conduct independent medical evaluations in disputed cases or advise insurance carriers on a worker's level of impairment, which is then converted into a rating of disability used for making compensation awards.

In the United States, occupational medical evaluations of applicants and employees began in the mid-nineteenth century. The use of medical criteria for selection and retention of employees was largely unregulated for over a century; employers and their physicians (either employees or consultants) had largely unfettered discretion in deciding what criteria to apply in making recommendations about individuals' fitness for various types of employment. The first regulation of occupational medical evaluations was incidental to legislation intended primarily to prevent discrimination in employment on the basis of disability (originally referred to as "handicap"). At the same time that workplace medical evaluations became subject to legal scrutiny, evolving professional norms of occupational medicine began limiting the scope of medical inquiry for fitness-for-duty and other evaluations. (3)

The Rehabilitation Act of 1973, (4) the first significant federal legislation in this field, prohibits discrimination on the basis of disability, but applies only to federal agencies, (5) federal government contractors, (6) and recipients of federal financial assistance. (7) This Act, plus a patchwork of state laws, (8) afforded some protection against discrimination in employment on the basis of disability, but were inadequate in scope, procedures, and remedies. More comprehensive legislation was needed.

In 1990, Congress enacted the Americans with Disabilities Act (ADA), (9) the first comprehensive federal law to prohibit discrimination in employment (10) (as well as public services (11) and public accommodations (12)) on the basis of disability. Other workplace antidiscrimination laws, such as Title VII of the Civil Rights Act of 1964 (13) and the Age Discrimination in Employment Act (ADEA) of 1967, (14) mostly prohibit discriminatory actions by employers, such as refitsal to hire or discharge. They do not explicitly regulate the hiring process or other key aspects of the employment relationship. The ADA is different; it expressly regulates the hiring process. (15) Building on the structure of the Rehabilitation Act of 1973, the ADA is designed to enable individuals to demonstrate their abilities before employers can learn of their disabilities. (16) Thus, under the ADA, the permissible scope of employer medical examinations and inquiries depends on the stage of employment, with pre-offer medical examinations and inquiries prohibited and other medical assessments permitted but limited. The effect of the ADA is to refine the legal and practical parameters of workplace medical evaluations.

Also during the 1990s, as researchers led by the National Institutes of Health (NIH) worked to map and sequence the human genome, the availability of sensitive genetic information to employers, insurers, and other parties became a matter of serious public concern. (17) First at the state level and later in Congress, legislation was enacted to address these fears and reassure the public that discrimination and loss of privacy were not the inevitable by-products of the Human Genome Project.

In 2008, Congress enacted the Genetic Information Nondiscrimination Act (GINA) (18) to address genetic discrimination in health insurance (Title I) and employment (Title II). Title II of GINA is unique among federal workplace antidiscrimination provisions. It was not designed to redress a history of genetic discrimination in employment; in fact, there was little such discrimination reported at the time of GINA's enactment. (19) Instead, Congress believed that individuals would be more willing to avail themselves of genetic testing and related services if there were established protections against genetic discrimination. (20)

One of the main ways in which GINA attempts to prevent genetic discrimination in employment is by restricting the medical information about applicants, employees, and their family members that employers may lawfully obtain during preplacement and periodic medical examinations and inquiries. Moreover, in addition to genetic test results, GINA defines "genetic information" to include family medical history. (21) By using a broad definition of genetic information and by prohibiting employers from obtaining such information, GINA adds an additional layer of legal regulation to the medical evaluations of applicants and employees. This Article contains one of the first published analyses of all GINA complaints filed with the United States Equal Employment Opportunity Commission (EEOC) since the act went into effect, as well as a more detailed analysis of the cases that have been decided in court, with a focus on their application to the field of occupational medicine.

It is important to emphasize that the key laws discussed here regulate the conduct of employers, but the indirect effects on the practice of occupational medicine are still significant. The two statutes with the most discernible effects on occupational medical evaluations, the ADA and GINA, were enacted for reasons far removed from the practice of occupational medicine. The ADA attempts to prevent discrimination based on disability by, among other things, limiting the timing and nature of medical information available to, or discoverable by, an employer or its agents during medical evaluations. Consequently, this law designed to prevent discrimination includes provisions that enhance individual health privacy and mandate major changes in the way some employers conduct medical evaluations. GINA also was not enacted to affect occupational medicine, but was merely a "preemptive" measure designed to reassure members of the public that they could avail themselves of new genetic testing and related technologies without fear of discrimination in health insurance or employment. It is unclear whether GINA is having its intended effect, in part, because GINA's protection against genetic discrimination does not extend to life insurance, disability insurance, long-term care insurance, or other commercial transactions such as mortgages. Individuals concerned about these potential uses of genetic information may still avoid genetic testing. Furthermore, the sparseness of claims of genetic discrimination in employment before and since the passage of GINA adds to the difficulty in measuring the law's effect.

We explore the complex legal status of occupational medical evaluations, as well as their ethical and practical implications, in four Parts. Part II focuses on the legal provisions and ethical considerations applicable to the practice of occupational medicine. It discusses how the physician-examinee relationship affects medical evaluations as well as personal injury and employment-related litigation. Part III reviews the medical examination provisions of the ADA, including the case law interpretations of the statutory framework for medical assessments. Part IV explores GINA's provisions dealing with employer access to genetic information, including the regulations and judicial decisions interpreting these provisions. Although there have been relatively few cases brought under GINA, a substantial percentage of those cases involved allegedly unlawful acquisition of genetic information during the course of employer-mandated medical evaluations or other inquiries. Part V reviews the last four decades of occupational medical evaluations, from the Rehabilitation Act of 1973 to the present. It considers whether the increasingly detailed legal regulation under the ADA and GINA has affected the practice of occupational medicine specialists or part-time consultants. Finally, the Article concludes by evaluating the impact of occupational medicine practices and legal restrictions to limit occupational medical evaluations.

II. LEGAL AND ETHICAL FRAMEWORK OF OCCUPATIONAL MEDICAL EVALUATIONS

This Part lays the necessary foundation for our analysis. It first considers the legal context of occupational medical evaluations and the ethical issues of the relationship between physicians conducting medical evaluations and the applicants and employees being evaluated. It then briefly discusses the history of occupational medicine in the United States, as well as the training and practices of specialist and generalist physicians performing occupational medical evaluations.

A. DEVELOPMENT OF OCCUPATIONAL MEDICINE

This sub-Part describes the evolution of the field of occupational medicine and explores the role of the occupational physician. It proposes how current regulation of an employer's role in the practice of occupational medicine may need to evolve.

1. Medical Evaluations

Beginning in the mid-nineteenth century, physicians were hired by large employers to maintain a productive workforce and to provide medical services in isolated communities. (22) The railroad, mining, and lumber industries were among the first to employ physicians to treat injury and accident victims and, to a lesser extent, to provide general medical care. (23) The employers' investment in medical care was motivated in part by the frequent and often horrendous injuries that occurred in these industries and by the absence of providers on the frontier or in remote areas, where employer-owned "company towns" were self-contained. (24) The emphasis was on patching up the injuries of otherwise able-bodied workers and ensuring that company-dominated neighborhoods, camps, and towns were livable under the standards of the day. (25)

With the enactment of workers' compensation laws in the early twentieth century, many manufacturing corporations hired physicians to manage liability and to protect the company by providing testimony during litigation. (26) This undermined the reputation of what were called "company doctors," and it contributed to an adversarial relationship with workers at many workplaces. (27) This low opinion was belied by the practices of certain industries, including the railroads, which sponsored teaching hospitals, health plans, and innovations in care. Some such institutions were not only leaders then, but continue today as health care networks. (28)

Also, at the beginning of the twentieth century, millions of new workers were needed for the greatly expanding manufacturing sector in the United States. Because migration from the traditional sources of immigrants (e.g., Great Britain, Ireland, and Germany) had slowed, many of the applicants for these jobs were newly-arrived, poor immigrants who came from countries like Italy and regions like Eastern Europe, where communicable diseases, particularly tuberculosis, were endemic. (29) To prevent workplace transmission of these diseases, some companies hired "factory" or "industrial" surgeons to determine whether an applicant would threaten the health of other workers. (30) In addition, the examining physicians assessed whether applicants were generally healthy enough to perform the physical demands of particular jobs, known today as determining "fitness for duty." (31)

The largest industrial companies had the greatest need for physicians and the resources to hire them. In 1916, when the American Association of Industrial Physicians and Surgeons was formed (the precursor of the American College of Occupational and Environmental Medicine (ACOEM)), its founding members were associated with large corporations, such as Sears, DuPont, Ford, and Kodak. (32) At the time, some companies were also providing health-related services, such as health education and nutritional guidance, to families of immigrants as well as providing special services to working women. (33) What would later be called "health promotion" has deep roots in these immigrant support programs and the Settlement Movement. (34)

Beginning in the 1930s and increasing after World War II, tentative efforts to increase workplace health and safety regulations (35) and to extend workers' compensation laws to cover occupational disease (36) further increased the demand for occupational physicians and expanded their scope of practice. Physicians were not only tasked with advising employers on the initial selection of workers, but also with conducting periodic and post-exposure examinations to determine whether the working conditions were causing occupational injury or illness, now called "periodic health surveillance." (37)

Another development during World War II was the creation of employer-sponsored healthcare facilities, which were pioneered by the railroads in the nineteenth century. (38) Of particular note, Kaiser Steel Corporation and its foundation formed a group practice called Kaiser Permanente, which provided full-service medical care to construction, shipyard, and steel mill employees and their dependents using a group practice model. (39) By 1945, people outside the company were allowed to join, (40) and today Kaiser Permanente is one of the largest healthcare providers in the United States. (41)

Diversification of American industry in the mid-twentieth century led to new workplace exposures, including those associated with the burgeoning petrochemical and electronics industries. (42) Advances in toxicology, pathology, industrial hygiene, epidemiology, and other scientific disciplines identified and documented the effects of occupational exposures on workers. Employers attempted to identify workers at the early stages of illness through increased medical surveillance. The practice of occupational medicine emphasized fitness for duty to maintain productivity, the prevention of disease through periodic health surveillance, and the evaluation of disability for purposes of compensation. (43) Occupational medicine began to emerge as a medical specialty, first informally during World War II as a response to needs in the military, and after the War as a distinct medical specialty. (44) During this period, occupational health regulation was both rudimentary and primarily a state responsibility conducted by public health agencies. (45)

The Occupational Safety and Health Act (OSH Act) (46) of 1970 mandated a greatly increased role for occupational safety and health through prevention, assessment, and intervention in a wide range of industries. The Mine Safety and Health Act of 1977 mandated similar protections for the mining industry. (47) Standards promulgated pursuant to the OSH Act require employers to conduct periodic health surveillance when they have employees exposed to certain toxic substances in the workplace, such as asbestos, (48) vinyl chloride, (49) and lead. (50) As a result of the OSH Act, some occupational physicians are responsible for overseeing compliance with OSH Act recordkeeping (51) and employee exposure notification requirements. (52) Fitness-for-duty evaluations, including preplacement and periodic medical screening examinations, which were common by (1970), were not mandated or regulated by the OSH Act, which required medical surveillance only for workers exposed to toxic substances or harmful physical agents (e.g., noise, radiation). Thus, employer-sponsored health evaluations and services remained largely outside the framework of law and regulation in the United States. (53)

2. Occupational Physicians

Physicians practicing occupational medicine traditionally come from diverse medical backgrounds and entered the field with a variety of clinical experiences. There are three main ways in which employers obtain occupational medical services: company-salaried physicians; physicians in private practice; and contracting with health systems.

First, company-salaried ("on-site") physicians are employees of individual firms, and their responsibilities are principally to their employers. (54) The corporate-level physicians, often called "medical directors," are usually defined by a management role, whereas physicians at the plant level are often part-time and have less discretion in decision-making. (55) Rank-and-file workers, suspecting that physicians' loyalties attach to the source of their compensation, distrust both types of physicians, especially plant physicians because of their greater visibility. (56) A conflict between employees and physicians can quickly turn their superficially cordial relationship into an adversarial one. In general, employees are reluctant to disclose health information that may result in a limitation on their ability to work. (57) When employees fail to disclose symptoms or other pertinent medical information, it may impede the physician's ability to make an accurate assessment of the individual's risk or fitness for duty. (58)

Second, physicians in private practice ("off-site" or "community-based" physicians), mostly internists and some family physicians, are hired on a part-time basis to conduct preplacement and periodic examinations, as well as to manage workers' compensation issues. (59) Third, some employers contract for occupational medicine services from free-standing occupational medicine centers and hospital-based services, which employ occupational medicine specialists and serve multiple employers. (60) Physicians working for these firms arguably have more independence because of they have looser ties to any one company and maintain more financial independence.

In many smaller or remote communities, however, there might only be a handful of physicians of any kind and physicians who can perform the minimum services may be in short supply. In other communities, there may not be enough demand for occupational medicine services to justify even a part-time position. Thus, many physicians who deliver occupational medicine services do so within the context of their own primary care practice. They also sometimes evaluate their own patients under contract with an employer, a practice rife with conflicts of interest. (61)

In 1955, after a lengthy battle for recognition opposed by the American Medical Association (AMA), the American Board of Preventive Medicine recognized occupational medicine as one of its designated preventive medicine specialties, the others being general preventive medicine and aerospace medicine. (62) Only a minority of physicians practicing occupational medicine, however, are board certified in this specialty; most of these physicians have entered the field mid-career and learned on the job or through a combination of continuing medical education and experience. (63)

Despite fluctuations, over the last thirty years the number of full-time occupational physicians has been relatively stable. In 1983, there were about 2,000 full-time occupational physicians, another 8,000-13,000 part-time occupational physicians, 4,800 members of ACOEM, 921 board-certified occupational physicians, and ninety-seven physicians completing occupational medicine residencies in that year. (64) In 2013, ACOEM's total membership was 4,419: 3,396 were active members (excluding retired members and residents) and of those, 1,801 or fifty-three percent were board certified in occupational medicine. (65)

One of the most significant trends in occupational medicine is the declining percentage of physicians employed by industry. Occupational physicians today have a much more diversified practice profile than in the past. The most recent survey, published in 2007, indicated the following employment patterns:

Current Employment for Occupational Medicine Physicians
Surveyed (66) (by percent)

Clinical settings                                       51.6
                     Freestanding occupational
                       medicine clinic                  25.2
                     Multispecialty clinic/hospital     18.9
                     Other clinical setting             7.5

Corporate/industry                                      16.3
                     Manufacturing                      8.2
                     Other corporate job                4.2
                     Managed care/insurance             3.1
                     Mining                             0.5
                     Service                            0.3

Consulting                                              11.5
                     Consulting firm/self-employed      11.5

Government                                              9.4
                     Federal/state environmental
                       health and safety                4.6
                     Federal/state regulatory agency    2.1
                     Other government job               2.7

Academic setting                                        6.6
                     Academic appointment               6.6

Other settings                                          4.6
                     University environmental
                       health and safety                1.6
                     Other                              3.0

B. PHYSICIAN-EXAMINEE RELATIONSHIP

The relationship between an examining physician and an individual undergoing a medical assessment to determine employability has been a source of longstanding legal and ethical controversy. (67) The starting point is reviewing the traditional physician-patient relationship, which presupposes that the individual is a patient--a person in need of medical care. (68) Legally, a physician-patient relationship is based on contract and contains the following elements: "(1) the physician is selected by the patient or someone authorized by the patient (e.g., a referring physician [or guardian]); (2) the physician is paid by the patient or some third-party authorized by the patient (e.g., health insurer); (3) the physician acts for the benefit of the patient; and (4) treatment may result." (69)

In occupational medicine, the individual receiving the service is typically not a patient because the service rendered is not diagnosis or treatment. Most occupational medical services are directed at keeping people healthy and assessing their capacity for safe work, so in most cases workers are not patients. In many situations, the physician's role is to provide an opinion or to confirm the status of the individual for the benefit of either an employer or a third party with no role in diagnosis or treatment, such as an insurance carrier. …

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