Accommodating Medical Professionals with Pre-Existing Health Conditions in the Coronavirus Pandemic

I read with interest Dr. Peter Poullos’s article at Just Security about health care workers with chronic illnesses who are on the frontlines of responding to COVID-19. His piece raises important issues, both for our response to the pandemic, and for health care generally.

Individuals with disabilities are massively underrepresented in the health professions. In significant part, that is because the health system systematically fails to take seriously the mandate of the disability rights laws designed to avoid discrimination against, and provide reasonable accommodation to, disabled individuals. Schools and residency programs that train medical professionals continue to impose exclusionary criteria that needlessly screen out applicants with disabilities. They fail to provide accommodations to disabled students even when those accommodations can enable those students to succeed. And the same problems occur once individuals with disabilities enter the medical profession.

In medical schools, exclusionary practices often rest on an archaic sense that doctors must be generalists, prepared to perform any sort of medicine. But throughout the health professions, the rigidity and refusal to make accommodations often rests on a sort of machismo. Poullos captures this machismo well when he tells the story of Dr. Donald Abrams’s decision, at 70 and experiencing asthma, to stop treating coronavirus patients due to his own special vulnerability to the effects of the virus if infected. When Abrams shared his concerns with a colleague, the colleague responded that he should “grow up and wash [his] hands”—which reads as the medical staff version of “walk it off.”

As Poullos explains, the medical world is beset by “a powerful culture of ableism. Social norms emphasize ‘superhuman’ efforts of those who toil around the clock, endure without food or breaks, and above all, don’t complain.”

Wherever it comes from, the refusal to embrace and accommodate disabled medical professionals causes serious harm—and not just by denying educational and employment opportunities to individuals with disabilities. There is ample evidence that patients with a range of disabilities face substantial discrimination in the health care system. Many disabled individuals get less effective treatment than do their nondisabled counterparts. Bias is a significant cause.

Studies have demonstrated that medical professionals frequently believe that a disability imposes a greater limitation on the quality of life than disabled individuals themselves find. Diagnostic tools often are not designed for people with disabilities, which means that symptoms that appear to point to particular diagnoses in nondisabled individuals will in fact not be particularly predictive in those with particular pre-existing disabling conditions. And medical professionals often fail to communicate effectively with patients with disabilities. They treat the pre-existing disability as “overshadowing” the reason why a disabled individual sought treatment, thus keeping them from treating the underlying condition.

These biases lead people with disabilities to receive subpar medical treatment. We have seen the effects of these biases in action in the response to COVID-19. In setting up protocols for rationing life-saving treatments if it became necessary, many states and health systems declared that people with certain pre-existing disabilities would go to the back of the line for those treatments. Those decisions often rested significantly on, and would have exacerbated, biases against disabled individuals. After the Office for Civil Rights at the Department of Health and Human Services quickly intervened, states have moved to change those discriminatory policies. That the policies were adopted in the first place, however, highlights the life-and-death stakes of bias in the medical profession.

That bias would likely be alleviated considerably if more qualified disabled individuals were able to train to become, and to continue to serve as, health care professionals. The exclusion and failure to accommodate that exists throughout the medical professions thus directly harms health outcomes.

Disability discrimination laws provide crucial tools for challenging exclusionary practices like the ones Poullos highlights. Two major federal statutes protect individuals with disabilities against discrimination: the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Virtually all institutions that provide health care or train health-care providers are covered by one or both of these statutes. The statutes impose broadly similar requirements. Taken together, they protect disabled employees, students, patients, and—at least in public institutions and those that receive federal funds (nearly all hospitals)—anyone with a disability who interacts with them. These statutes prohibit intentional discrimination against disabled individuals. They also require institutions to make changes in their standard ways of going about their business where necessary to accommodate people with disabilities—at least so long as the modifications are “reasonable” and don’t impose an “undue hardship” or create a “fundamental alteration” in the nature of an institution’s program.

The insight behind the reasonable accommodation mandate is easy to understand. Physical facilities, job responsibilities, educational requirements, and other social and economic structures were designed with the reflexive background premise that the people who would use them would be nondisabled. If architects assumed that their buildings would be patronized by people with mobility impairments, they would design them with ramps instead of stairs at their front entrances. If web designers assumed that blind people would visit their internet sites, they would include image descriptions rather than simply posting photographs without captions. The reasonable accommodation mandate rectifies these sorts of “stereotypical thought processes” and “thoughtless actions” that “far too often bar those with disabilities from participating fully in the Nation’s life, including the workplace,” as one Supreme Court decision describes it. If a workplace, school, or hospital has physical structures, or policies or practices that gratuitously exclude individuals with disabilities, the law requires the entity to modify them to eliminate the exclusion.

What constitutes a reasonable accommodation is necessarily fact specific. But Poullos’s article offers a nice example. As a diagnostic radiologist, he could do essentially all of his work from home without experiencing any meaningful loss of efficiency. Letting him do so is thus a “reasonable” accommodation to ensure that he can remain in his job without facing the heightened risk of contracting the novel coronavirus that would otherwise be associated with his disability. Disabled workers have sought work-from-home accommodations for years, but judges have tended to be wary of them. Now that so many people are being forced to work from home during our period of social distancing and sheltering in place, perhaps courts will reconsider their wariness.

Working from home is not the only possible accommodation that will enable health care professionals to protect themselves while remaining in their jobs during the pandemic. The ADA explicitly lists “job restructuring, part-time or modified work schedules,” and “reassignment to a vacant position” as reasonable accommodations as well. If there are particular job tasks that are especially risky for a worker with a disability, the relevant tasks might be assigned to someone else (with the disabled professional taking on new tasks to compensate). If there are particular times of day in which the risk is especially great, the worker with a disability might be permitted to perform key duties at a different time, if it is possible to accommodate that change without undue hardship to the organization. And if it is just too risky to continue to serve in the current position, a health care worker could be reassigned to a different job for which they are qualified, so long as there is no incumbent who will be forced out.

After the ADA Amendments Act of 2008, the ADA broadly treats as disabled, and thus protects, people with a wide array of medical conditions. The statute covers anyone who has an impairment that substantially limits any major life activity or major bodily function—or who has an impairment that would substantially limit such an activity or function if left untreated. Poullos’s spinal cord injury would certainly qualify, but so would Dr. Abrams’s asthma—and, likely, so would any pre-existing medical condition that made it especially risky for an individual to work directly with COVID-19 patients.

The disability discrimination laws provide a crucial tool to ensure that medical professionals with pre-existing conditions can continue to work during the coronavirus crisis. Although the health care field has not historically been especially open to making accommodations for disabled workers, we can hope that the current pandemic will prompt a change in that stance. Not just the livelihood of professionals with disabilities, but also the health of patients—both disabled and nondisabled—is at stake.

Image – Doctors, nurses and emergency medical staff of the Brooklyn Hospital Center pose of a picture after the U.S. Navy’s Blue Angels and U.S. Air Force’s Thunderbirds performed a flyover as a tribute to honor NYC COVID-19 frontline workers on April 28, 2020 in the Brooklyn borough of New York City. The World Health Organization declared coronavirus (COVID-19) a global pandemic on March 11th. (Photo by Robert Nickelsberg/Getty Images)

 

About the Author(s)

Samuel Bagenstos

Frank G. Millard Professor of Law at the University of Michigan Law School; Principal Deputy Assistant Attorney General for Civil Rights from 2009 to 2011; Pursuant to an appointment by Governor Gretchen Whitmer, he currently serves as the Chair of the Michigan Employment Relations Commission. Follow him on Twitter (@sbagen).