By Rob Wolff
California’s Governor has just signed a bill (AB 1136) requiring hospitals in his state to implement a patient handling policy that includes “lift teams” trained in moving patients with appropriate equipment. Among other things, the law provides that “employer[s] shall maintain a safe patient handling policy at all times for all patient care units, and shall provide trained lift teams or other support staff trained in safe lifting techniques in each general acute care hospital.” Significantly, under this law, a hospital “employee who refuses to lift, reposition, or transfer a patient due to concerns about patient or worker safety or the lack of trained lift team personnel or equipment shall not, based upon the refusal, be the subject of disciplinary action.”
Similarly, Washington, Texas and Illinois have statutes, like California’s, which protect healthcare employees from disciplinary action in response to a good faith refusal to engage in unsafe patient transport or lifting. The Washington statute provides that “a hospital employee who in good faith follows the procedure developed by the hospital in accordance with this subsection shall not be the subject of disciplinary action by the hospital for the refusal to perform or be involved in the patient handling or movement.” Likewise, Texas law mandates that hospitals promulgate “procedures for nurses to refuse to perform or be involved in patient handling or movement that the nurse believes in good faith will expose a patient or a nurse to an unacceptable risk of injury.” An almost identical statute in Illinois requires establishment of protocols “for a nurse to refuse to perform or be involved in patient handling or movement that the nurse in good faith believes will expose a patient or nurse or other health care worker to an unacceptable risk of injury.”
Other states, for example Rhode Island, Maryland, Minnesota and New Jersey, require the establishment of safe patient handling committees that include nonmanagement nurses, development of safe patient handling/lifting programs and protocols, use of patient lifting and handling equipment, the provision of paid training for nurses, etc., but generally do not address protection or accommodations for nurses who cannot or refuse to lift patients.
These statutory provisions will, in all probability, make it extremely difficult for healthcare employers in these states to maintain that a nurse who cannot lift or move patients without assistance is incapable of performing essential job functions with or without a reasonable accommodation. Indeed, in these states, a nurse with lifting restrictions is but one part of a patient lifting or movement team. A recent federal court decision in Virginia is instructive, because it is precisely the sort of holding that courts will be far less likely to reach in California, Illinois, Washington, Texas, Rhode Island, Maryland, Minnesota and New Jersey.
In Griffin, v. Prince William Health System, the plaintiff was a registered nurse working in the hospital’s Special Procedures Department, a subdivision of Perioperative Services. In this role, she was responsible for pushing patients on stretchers to the post-anesthesia care unit recovery room; moving medicated and/or sedated patients; and turning or lifting patients onto their sides or backs. After the nurse was given permanent lifting restrictions by her doctor, the Health System determined that it could not accommodate her impairment and told the nurse that she should apply for long term disability benefits.
The court granted summary judgment to the hospital finding, among other things, that lifting was an essential function of the job. In addition, the court considered whether there was a reasonable accommodation available. The sole accommodation the plaintiff sought was to have other nurses assist her in lifting anyone or anything greater than 25 pounds. This request, the court held, “is not reasonable, as Plaintiff essentially sought the creation of a new position or the reallocation of essential functions from an existing position. . . . Requiring other nurses to assist Plaintiff with her lifting duties for her permanent lifting restriction is not a reasonable accommodation.”
Nevertheless, even in states that do not have statutory lifting accommodation provisions for nurses, whether lifting or moving patients is an essential job function may depend on the unique facts of a nurse’s job duties and the reviewing court. For example, in Deane v. Pocono Medical Center, the court determined that lifting, repositioning, or transferring patients would not be an essential function of a registered nurse’s position if she spent only moments each day performing those tasks.
The EEOC has also discussed when an how a healthcare employer must accommodate a nurse’s inability to lift or move in its Questions and Answers about Health Care Workers and the Americans with Disabilities Act issued in February of this year. For example, the EEOC states that purchasing a portable mechanical patient lifting device or transferring a nurse to another position which does not require lifting – even at a lower salary – would be reasonable accommodations.
In sum, healthcare employers in any of the states that require trained lift teams or the use of mechanical lifting equipment will have difficulty arguing that enlisting the aid of other staff or mechanical devices to help move patients is not a reasonable accommodation. But, even in other states that do not have such statutory requirements, whether lifting is an essential job function and whether there are reasonable accommodations available remains an intensely factual inquiry.