Hospitals are not immune from lawsuits by employees asserting violations of the Americans with Disabilities Act (ADA). On August 25, 2010, the Baltimore Washington Medical Center, Inc (“BWMC”) was hit with an ADA class action complaint challenging BWMC’s return-to-work policies. Specifically, Atkinson-Bush v. Baltimore Washington Medical Center, Inc., filed in federal court in Maryland, alleges that BWMC’s policy requiring employees who take three or more consecutive days off for medical reasons to submit to medical examinations before returning to work violates the ADA.

The lead plaintiff in the case, a Patient Care Technician, complains that BWMC required her to submit to a medical examination before returning to work from a medical leave of absence for hip surgery, although her own physician released her to return to work on light duty. According to the lawsuit, plaintiff submitted to the examination and was informed that BWMC’s physician concluded that she had a serious medical problem and could not return to work with or without a reasonable accommodation. As a result, plaintiff claims, she was constructively discharged.

One of the significant issues raised by the case is whether ADA claims are amenable to class action treatment. Most recently, in Hohider v. United Parcel Service, Inc., 574 F.3d 169, (3d Cir. July 23, 2009), the U.S. Court of Appeals for the Third Circuit held that ADA claims were not suitable for class action treatment because the individualized nature of the claims would defeat the commonality and typicality required for class actions. The plaintiffs in Hohider claimed that UPS’s allegedly common return-to-work policies, including a “100% healed” policy, violated the ADA. The Third Circuit concluded that in order to certify a class challenging policies that allegedly violate the ADA, it is necessary to determine whether the class members are “qualified individuals with a disability” under the ADA. In this regard the court emphasized that even if the company’s policies were deemed to be discriminatory, they could not give rise to a finding of liability and relief under the ADA unless those affected by the policy were covered by the ADA (i.e., they were disabled and able to perform the essential functions of the job they seek with or without reasonable accommodation). Because this determination requires individual inquiry, the court held, it rendered the plaintiffs’ claims unsuitable for certification under Rule 23(a).

Other courts, however, have certified ADA class actions where the challenged conduct was a specific policy that allegedly discriminated against employees in a broad-based manner. For example, in Bates v. United Parcel Service, 204 F.R.D. 440 (N.D. Cal. 2001), a federal district court in California certified a class action brought on behalf of UPS employees challenging policies that allegedly discriminated against employees who used sign language as a primary means of communication due to a hearing loss or limitation. According to the court in Bates, the case was distinguishable from other class actions in which class certification had been denied because the plaintiffs were not challenging the failure to provide accommodations in specific situations, but rather UPS’s alleged failure to address communication barriers and determine generally what jobs hearing-impaired employees could hold.

The BWMC case also raises numerous other procedural issues, including issues regarding the impact of the plaintiff’s failure to wait 180 days or obtain a right to sue letter before filing suit. Nevertheless, regardless of the court’s decision on these issues, and whether this case is certified as a class action, this case serves as a reminder for hospitals to review their return-to-work and other disability-related policies for compliance with the ADA and state disability discrimination laws.

This entry was written by Steven Kaplan.