April 1999

Respiratory Protection: Medical Evaluations and ADA concerns

Questions:

I have heard about a new standard issued by the California Occupational Safety and Health Administration regarding the use of respiratory protection devices. My understanding is that all employees will need to be re-evaluated for their medical ability to wear a respirator using the CalOSHA Medical Questionnaire. Is there any disability discrimination problems that may arise where an employee is not medically fit to wear a respirator?

Answer:

Yes. An employee who is not medically qualified to wear a respirator cannot remain in a position for which respirator use is an essential function. However, the District may be required to accommodate an employee by providing a type of respirator which is compatible with the

employee's condition, or by considering the employee for a position for which no respirator is required

Background:

The new standard, which takes effect in May 1999, requires that all employees who are required to wear respiratory protection devices be medically evaluated prior to using such devices. This evaluation must meet the criteria found in the CalOSHA medical evaluation questionnaire found in Appendix C of the standard. For this reason, employees who wear, or who may wear, a respirator may need to be re-evaluated by a Physician or other licensed health care professional (PLHCP). Employees for whom respiratory protection devices are merely a convenience-not a safety requirement-are exempt from this requirement. A copy of the medical questionnaire is available by calling the CSRMA Risk Control Advisor, David Patzer, at (415) 371-5430

The new standard strikes a balance between the importance of protecting employees from discrimination on the basis of a medical condition and the District's need to ensure safety and adequate job performance. For example, the procedure mandated for evaluating an employee's ability to use respiratory protection is carefully designed to prevent the District from accessing the employees' medical data; only the medical evaluator's written conclusions and recommendations will be available to the District.

A pair of significant ADA-related questions is unavoidable, however for one, what must a District do if and when an employee's evaluation indicates an inability to wear a respirator?

Under the standard, an employee who is deemed medically unfit to wear the respirator-or who refuses to cooperate in. the evaluation-is disqualified from such usage, and by extension, disqualified from anv position for which respirator use is required

That raises the second question - is respirator use an. essential function of the particular job? While the fact-intensive nature of these individual inquiries makes blanket recommendations difficult, there are a few steps which Districts can take to limit exposure to claims under the ADA by employees now deemed unqualified for their position. First, ensure that up-to-date, comprehensive job descriptions are available for each position. Employers who have written descriptions have the benefit of the doubt as to what functions may be essential. Also, when given to the medical evaluator, these job descriptions can help determine at the initial stage whether alternative respiratory protection (e.g.5 supplied-air instead of cartridge filter) is feasible.

Second, be aware of possible alternative positions within the District. The ADA does not require an employer to create a new position for an employee who is no longer medically qualified to perform the essential functions of the job, but it may obligate the District to consider the employee for an alternative position for which the employee is qualified.

Because the potential for significant liability is great, Districts are encouraged to seek legal assistance in evaluating whether activities requiring respiratory protection  are "essential functions" of a given position, and completing or updating job descriptions accordingly. Likewise, Districts should seek legal assistance in evaluating eventual accommodations that may become necessary. For further information, contact the Employment Practices Hotline at (650)592-6160

if your District is faced with ADA questions or circumstances such as this, call the CSRMA Employment Practices Hotline.  This Hotline provides free legal advice to all CYRAM members On various employment issues For more information on the Hotline, please call Lynn Lieher with Fisher & Phillips at (650)592-6160.