Is faxing a reasonable accommodation?

Remember faxes? I don't.

A 70-year-old home health care nurse (RN) has sued her employer under the Americans with Disabilities Act and the Age Discrimination in Employment Act.

According to the lawsuit, the employer required its home health nurses to use a computer system (known in medical circles as a "point-of-care" system) to document patient visits. 

If you've been to the doctor in the past 20 years or so, you know what I'm talking about. They can review your prior visits on a little laptop that is in the examination room. Then they can take your blood pressure and measure your heart rate, and enter the information directly into that laptop. In this case, the nurses took their laptops to patients' homes and entered the information into the system from there.

But this particular nurse claimed that using the computer system gave her migraine headaches so severe that she was sometimes vomiting in the homes of her elderly, sick patients.

As an accommodation, her supervisor let her write the patient information down on paper and fax it in.

(We still have a fax machine in our office. I can't even remember the last time I saw anyone using it.)



Apparently, the fax machine was in the office of a different supervisor, who did not always provide the nurse's faxes to the nurse's supervisor in a timely manner. (In the other supervisor's defense, who checks the fax machine any more?)

Anyway, the nurse's supervisor retired, quit, or otherwise moved on. Now there was a new sheriff in town who wanted the nurse to use the point-of-care system. According to the new boss, the faxes were often illegible (I don't know whether that was because of the nurse's handwriting or because of issues with the fax transmission), they did not always get to the supervisor in a timely manner, and ‑ most important of all ‑ faxing might violate the privacy rules of the Health Insurance Portability and Accountability Act.

All of which sound to me like legitimate concerns. But the nurse didn't think it was fair that her new boss was insisting she enter patients' medical information directly into the point-of-care system. So she went to the boss's boss and complained. In that same meeting, her lawsuit says, her employment was terminated. Which, her lawsuit says, was retaliation.

All we have at this point is the nurse's side of the story. The employer has not had a chance to respond. But here is how I imagine that last meeting:

THE LAST MEETING
A Short Story

NURSE: My supervisor is being mean to me. She is making me use the point-of-care system even though she knows I can't do it.

BOSS'S BOSS: Why can't you do it? Everybody else does.

NURSE: I turned in a doctor's note in 2020. Using the computer gives me terrible migraine headaches. Why, just yesterday I tried to use the system, and my headache got so bad that I threw up all over little Sadie Green.

BOSS'S BOSS: You threw up on Miss Green? Well, anyway, using the point-of-care system is part of your job. An essential part, because it is confidential and also lets the nurses report on their patient visits in real time. Are you saying you can't use that system without getting severely ill?

NURSE: Yes, I am.

BOSS'S BOSS: Is there anything that would make it possible for you to use the system?

NURSE: No. The only solution is for me to fax the records in. I will not work here any more if I have to use the system. It's me, or the system.

BOSS'S BOSS: Well, I'm sorry, but since you can't use the system under any circumstances, then we will have to part ways. We wish you all the best in your future endeavors.

NURSE: This is because I'm 70, isn't it?

*FINIS*

Yes, I admit, so far I'm siding with the employer. The age discrimination claim seems to have no merit whatsoever, and the retaliation claim seems like a stretch. But the ADA accommodation claim may not be as clear cut. It will probably turn on whether use of the point-of-care system really is an "essential function" of the job and whether allowing the nurse to fax in her information is a reasonable accommodation. Some of the things a judge will want to know include the following:
  • Assuming her patients didn't have fax machines in their homes, when and from where did the nurse fax in her patients' PHI? Did she take the handwritten notes home at the end of the day and fax them from there? Did she go to the nearest office store and fax it from there? Did she save it all up and fax it in at the end of the workweek? Any of these possibilities could have raised legitimate HIPAA privacy concerns, as well as concerns about delays.
  • Without the computer, how did the nurse review her patients' histories in preparation for the visits?
  • What did the nurse do with the paper records containing PHI after she'd faxed them in? Did she leave them lying around in her house until her next trip to the office, or indefinitely? Did she leave them in her car? Or did she destroy them securely immediately after faxing, so that they wouldn't fall into the wrong hands?
  • Would faxing the patient information require another employee to enter it into the system once received? (I would think so.) If so, how much of a hassle and expense would that be?
  • On the other hand, if delays and privacy at the office were the only concern and nobody uses fax machines anyway, could the fax machine have been moved to the nurse's supervisor's office? Or, could the employer just buy a dedicated fax machine for the nurse's supervisor? It looks like a modern fax machine wouldn't cost much more than $200-300. (Scroll down for the models that use paper.)
  • What was the role of the supervisor who had the fax machine? Would she be considered part of the "covered entity" for HIPAA privacy purposes, meaning that it wouldn't be a violation for her to see the patients' PHI? What about other employees who might see the information while it was sitting on the fax machine?
  • If the faxes were illegible because the nurse's handwriting was bad, could she print?
  • If the fax transmissions were bad, could they buy an upgraded fax machine for $200-300?
This story may have a Chapter Two. Don't go away.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading

Subscribe

Archives

Back to Page

Here we grow again! Constangy is pleased to welcome 32 experienced attorneys in a significant expansion of the firm’s Cybersecurity & Data Privacy practice. The attorneys who will be joining the Constangy Cyber Team are located across 17 cities in 12 states, and are driving the opening of new offices for Constangy in Baltimore, Indianapolis, Philadelphia, Portland, Seattle and Washington, D.C. To learn more about the Constangy Cyber Team, click here.