Dr. Fowler is both a physician and an attorney, and he is regarded as one of the nation's foremost experts in medical malpractice and occupational medicine law. He currently serves as the Chief Risk Officer, U.S. Public Health Service, Department of Health and Human Services based in Washington, D.C. Previously he served as a legal medicine officer to the Surgeon General of the Army and as a chief physician for Motor Company. He received his Doctor of Jurisprudence with honors from Drake University Law School and is a graduate of the University of Des Moines College of Osteopathic Medicine. He is currently retired from the U.S. Army Reserve Medical Corps. Dr. Fowler is past president of the American Osteopathic College of Occupational and Preventive Medicine. Dr. Fowler is a fellow of the American College of Legal Medicine and American Academy of Family Physicians, the American Osteopathic College of Occupational and Preventive Medicine. He's board certified by the American Osteopathic Board of Family Practice, the American Board of Forensic Examiners, the American Board of Disability Analysts, and the American Osteopathic Board of Preventive Medicine. Dr. Fowler is a member of Florida, Illinois, Kentucky, District of Columbia Bars. He has also been sworn in as a member of the Bar of the United States Supreme Court. Dr. Fowler. Great. Good morning, everybody. I got good news and I got bad news. What do you want to hear first? I got a live audience and then my welcome to everybody in my Zoom audience there. Bad news first. The bad news? You got to listen to an attorney in the first lecture of the morning. Can I get a boo? Come on, guys. Boo! Good news? I don't have any good news. Typical attorney. Lady here says, typical attorney. You got that right. Okay. Oh, and okay. So anyway, speaking of attorneys, I was in a big rush to get out of my legal office yesterday and I got a really nice partner and right at four o'clock, this guy came in and he wanted to do a quick will and he's just doing a quick codicil to a will and my partner did it real fast and he says, oh, what do I owe you? And the guy said, just give me $100. So the guy pulled out a crisp new $100 Ben Franklin. Can you see that? And he gave it to my partner. Liz, you can see that. Everybody see that? And lo and behold, there was two hundred dollar bills. Okay. $200. They were right there from the bank. So that raises that age old ethical question for attorneys. Does the attorney get to keep the extra hundred dollars or share it with his partner? Okay. There we go. You didn't think he was going to get back. Well, welcome. Welcome to the basic course. We really had everybody in the room here and this is part two and this is where I started out in this college. I took the basic course the very first time and that was many decades ago. And this really is a great college. Jeff, we have a great executive director. We have wonderful people here. And there is a good side on this lecture. I can't think of any other specialty where you have the involvement between legal issues and medical as you do in occupational medicine. And today we're going to discuss probably the foremost of some of those legal issues that we encounter in occupational medicine. So before we get to that, do we have anybody here who's been in the military? All right. I see Dean, Liz. All right. The first thing they teach you, and Murray, Murray, Murray, yes. And the first thing they teach you in basic camp is never volunteer for anything. Well, I am so glad to be here today in my civilian attire. I've been retired from the Army Reserve for 20 years ago. And last June, I got a call, Dean, you probably didn't know this, but I got a call from Fort Knox and they said I had to be 48 hours, I've been recalled out of retirement. I hadn't been in uniform in 20 years and I have spent the last almost year back in the Army. They said at the time, I was probably one of the oldest people, I'm 64, in the United States Army. It was not fun. I went from Rutger to Bragg, got to Belvoir and back home. So I'm just thankful to be back here right now. All right. Let's look at some of our learning objectives today. We're going to talk in depth. Everything you wanted to know but were afraid to ask about the American with Disabilities Act. We're going to see how that has been expanded over the years. We're going to look at what are exempted employers for the ADA. I can't think of anything that you do on a daily basis in occupational medicine where the ADA does not affect it. We're going to talk about GINA, the Genetic Information Non-Discrimination Act, and then we're going to talk about the Family Medical Leave Act. All right. I've been lecturing on the ADA to this college for, gee, I don't want to age myself here, almost 20, 25 years. This is probably always what I've been. I also lecture on ADA at many legal conferences. I always hate it when they ask me to lecture in a legal conference because I've got to do so much preparatory work because this is the one law that has changed so much over the years based on court decisions. This is now over 30 years old when President Bush first signed this, the first President Bush back in 1990. What it was meant for? It was meant to provide fair employment practices. This is the Bill of Rights for disabled persons. You've got to know it. There's certain things I'm going to tell you during this lecture that you've got to know. When Fowler says, write it down, you've got to know, write it down because you just may see it again. All right. Today, there's many titles to the ADA, but we're going to talk about the employment portion as it's relevant to your occupational medicine practice. Okay. Now, what was the original idea? Well, your employers would provide reasonable accommodations to qualified workers so they could be gainful and be employed. So what do we think about the ADA? We think about, oh, in your city where you're at, they change the curbs or the computer for the blind lawyer that can do a speech output or the accountant is able to get to work with a wheelchair or blind employees was allowing them to have the seeing eye dog with them. These are some of the things we think about with the ADA. And it has not been anticipated when they originally wrote the act, all of the problems we're going to see today with the ADA. All right. When you first think about ADA, and I think about its litigation, and there's been a ton of litigation in the ADA over the last 30 years. And it's been predominantly centered on the definition of the ADA, such as there's something substantially limited, is there impairment, did it affect a major life activity? And what happened was the Supreme Court has got involved in many of these decisions. Now, the Supreme Court has shot down many of the, many plaintiffs have come to the Supreme Court saying they're disabled, and the Supreme Court has shot down many of these. Why? Why is the Supreme Court been very unfriendly towards the ADA? Well, they're looking out for their own judges. They don't want the courts bogged down with all this litigation. All right. Then we have what we have, we had a, back in 2002, I remember this very well. I had just been working for Ford Motor Company, and they had the seminal case here of Toyota Manufacturing versus Williams. And if any of you've ever been in a auto assembly plant, people have a lot of cumulative trauma. And this lady Williams had carpal tunnel, she worked on the assembly line, and she couldn't do her regular job on the assembly line. But she had carpal tunnel, and they moved her from the paint shop and all these different spots. She said, I can't do it, my shoulder's hurting, typical occupational medicine in an assembly line. And make a long story short, the Supreme Court said, hey, wait a minute, you can do, yeah, we agree, you can't do your regular job at Toyota there in Kentucky, but you have no problem doing your regular job at home. You can wash dishes, and so forth. You are not disabled within the meaning of the ADA. Well, what happened after that, Congress said, well, wait a minute, that's not what we intended. All right, so they crafted, they decided, they said, that's just too high a standard. So what they did was they amended the ADA. And everything now that you deal with in occupational medicine is going to be under the amended act. So what was this amended act in 2008 and became effective in 2009? Well, you can see me right now from where the ADA was, it's everything now. So who is protected by the ADA now in the amended act? Anybody claims disability, every single person in this room, you're going to be protected. Because it's that broad a sweep, all right? They broadened the definition to include your personal and even other people's perception of disability. And now they said the definition of disability should be construed and fried up broad coverage for individuals. And it really is broad coverage. And I'm going to give you some warnings on that today, when we talk about the practical realities of the ADA. Okay, another thing you got to know, who enforces the ADA, EEOC, Equal Employment Opportunity Commission. There's technical assistance manuals that are available from the EEOC to assist you in your occupational medicine practice. Okay, who is protected under the ADA besides everybody? What's the official definition? You got to know this slide. This is one of the most important slides I'm going to give you all day long. To be a qualified individual with a disability under the ADA, you have to have a physical or mental impairment that substantially limits one or more major life activities. And I'm going to need everybody in the room to repeat it after me. Physical or mental, come on guys. Physical or mental impairment that substantially limits one or more major life activities. So that's how you get to be disabled under the ADA. Or you can have a record of such impairment. This doesn't come into that much. Or be regarded as others are having such impairment. So let's talk a little bit about that. Remember I talked about how broad the ADA is now? All right. So we're talking about impairment. That's any physiological disorder condition, cosmetic defigurements, any mental or psychological disorders. It does not include if I'm right-handed and I'm left-handed, you can't say I'm overweight. That basis alone is not going to get you an impairment to qualify for being disabled under the ADA. Age. And then we're going to talk a little bit about right now, current drug and alcohol use. Let's talk about that right now. I'm going to caution you right now, if you have someone in your, say you're taking care of companies in your occupational medicine practice, if you've got someone, that company calls up and says, well, I've got a person, drug or alcohol use in their claimant ADA, I think you ought to pull out a real red flag and get your counsel, the company's counsel involved immediately because this is a big red flag. For alcoholism, alcoholism can be sometimes a disability under the ADA and sometimes it's not. So the bottom line is you could be a previous alcoholic and then you may have some impairments from that alcoholism and you're going to qualify in the ADA. But if I show up, you liberate it and there's a policy written in their manual that says I can't, you know, you can't show up to work and you drive in a forklift, ADA is not going to protect you. No way. All right. Drug use, drug use again, your previous drug user and you got problems with that, ADA is going to cover you. If you show up stoned out of your mind to work, they got a policy with that, you're going to have some trouble. So just as a word to the wise, be real careful in your practice with alcohol and drugs in the ADA. All right. So remember, we said the definition of ADA, physical or mental impairment that substantially limits one or more major life activities. Okay. So under the ADA amended act, life activities has been expanded to everything. And they further added, I remember lecturing, they even added reproductive functions now. All right. That before was a no-no, the Supreme Court said no on that. I remember lecturing a bunch of attorneys on this. They just included everything under the amended act. All right. Remember, I talked about there was three ways we can become disabled under the ADA. Physically or the first definition we all recited, then I said, or you can have a record of such disability. All right. And that means to people that there's two ways you can get there, you can be recovered from limitation, you can be misclassified. Again, these are more legal definitions, but it goes to show you the massive expansion of this act. The other way you can get there is be regarded as having a disability. So you don't even have to have the disability, but if someone thinks you got the disability, then you're covered. So again, this is just wild. So if I think you're nuts, then you have a medical disability. Yes. Yes. So if you've been previously classified, again, then they say it's a barrier to employment and physical, if they thought you were disabled, but you're really not. So again, that's what I'm talking about. The ADA is amended right now is broad, broad, broad with a capital B coverage. All right. Boy, I remember lecturing on this to the college in 2007 here at the basic. And there was a recent Supreme Court decision that with episodic impairments, say you have a patient who has cancer and cancer is completely, or they're completely cured or they're completely in remission and they're back to work. Well, sorry. As long as you had the cancer diagnosis under the ADA amended, you are now covered. So before the Supreme Court said, no, no, no, wait, wait, wait a minute. We're looking at the present disability. That's all thrown out now, totally thrown out. Okay. Now there are exclusions. I'm not going to go through a whole list of this. You can see that here. Stay tuned under the present circumstances. These may be covered. Okay. Controlled substance acts does preclude illegal drug use. So you cannot show up using current, using drugs at a workplace. Yes, Liz. This is going to be particularly important for the CBD. So it's not legal in Texas to have THC in your system, right? But if you use CBD oil, rule out. Come over here, yeah. Liz got a good point here. So you're going to get asked this all the time about the CBD oil. And in Texas in particular, it's not legal to have THC in your system. So if you've signed something that says you will not show up in the workplace with THC in your system, and you either travel to some place where it's legal or use CBD oil, it's going to be positive. And you're going to get fired, and there's not a darn thing we can do. Yeah, yeah. Well, you want to also just mention real briefly the difference. So I work for the VA now. So there's also differences between what's legal in the state and not legal working for the government or working for the military. Let me cover that, because I'm going to go over the exclusions for the federal government in a minute, OK? A good point. Is this a good place to address suboxone usage? If somebody is currently recovering, going through a suboxone program, and then they're applying for a job that might have some safety sensitive qualifications, like forklift operator, or whatever. Once they had a diagnosis of previous drug use, you're going to be covered under the ADA Amended Act, and you're going to be clearly disabled. Now, the question is, we're going to get into reasonable combinations and so on, OK? But you're going to be, the basic definition, would that person be considered disabled under the ADA? Yes, everyone is. So what happens is, you're going to be, the main determination that you do now is, are they going to be, let's go to the next step, OK? All right. So an individual disability is considered qualified under the ADA, but they still got to have the basic ability is to be able to perform the essential functions of the job with or without reasonable accommodations. And this is where your occupational medicine practice is where the rubber meets the road. So if I go to apply for a job, and it's a physician job, and I don't have a current license, but I claim I'm ADA, I claim I'm disabled from my time I fell and hurt myself at Rutger, and I'm disabled now. Am I entitled to file suit under the ADA? Am I going to file suit? Am I going to recover? No, because I'm not, if I don't have a physician's license anymore, which I do, but I mean, if I didn't have one, same way if a job requires you to be an accountant, and you're not an accountant, but you're claiming disability, and you can't discriminate me because I'm disabled. Well, you still got to be able to perform the essential functions of the job. And that's where the real crust of the matter comes now for your occupational medicine practice is determining whether there is reasonable accommodations. And we're going to discuss that now. Again, the essential functions of the job are those integral tasks that you must be able to perform with or without reasonable accommodations. All right. And then the essential functions, the position exists to perform the function in question. They may have limited employees where they can be distributed or may be highly specialized. OK. Who determines what the functions are essential or not? The employer does. And that's on the basis of the amount of time spent in the job performing a particular function or the work experience and written job descriptions. OK. Are job descriptions required by the ADA? No. Some employers unwisely choose to do them. I like to use a better chance. I think you ought to change your job descriptions. You have your employers change them to use the term essential functions to mirror the ADA and to make sure the job description focuses on what is to be accomplished, not how it is being done. Because that's where the test comes later on down with the ADA. OK. Now let's get to some real practical realities. You're in your occupational medicine practice. You've got your employers on the phone asking you questions. Where does the rubber meet the road here with the ADA in regard to this? Let's look at the practical aspects of this. OK. This is before you make a job offer. Yes. The employer's got someone in their office now and they're applying for a job, say, to be a forklift driver. You can ask. The employer can ask, do you have the qualifications? Have you ever driven that forklift before? You can ask questions. Well, do you think you can drive that forklift? Do you think you can lift 200 pounds, whatever it requires? You cannot ask, Murray, are you disabled? You can't do that. You just can't say, are you disabled? Do you have diabetes, Murray? No. OK. You can't do that. You can't ask about medical conditions. Now, with things going around in the country right now, there's a lot of openings. A lot of the trucking companies need people. So they make a conditional offer. OK. So you may require, after you make the conditional offer, only after you make that conditional offer, you can require a medical examination. Now, this has changed greatly under the amended act of the ADA. I remember years ago, I first started out in occupational medicine. And I've been both on the corporate side and on private industry side. We did exams for weeding out people. We wanted to know if they had diabetes, if they had this, because it would affect the insurance companies. We did carpal tunnel EMG. Right. We wanted to weed them out. You can't do that anymore. That's all gone. Those days are long gone. It has to be job-specific and should not involve body systems that have no bearing on any specific position that they're applying to. OK, here's an example of the ADA and some of the improvements with the wheelchair access and so forth. OK. Medical examinations. You can't require a medical examination to determine if the job has a disability. You've got to keep it in a separate file. I remember the old days where we would just send the whole physical examination to the employer. You can't do that anymore. Cannot do that. And it's key to you as an occupational medicine physician or as a family practice person who's learning occupational medicine that you have knowledge of the essential functions and the ADA requirements. And where do you attain the knowledge of your company's essential functions? Well, I think Carl today is going to have an excellent thing about worksite surveys. Carl, I think you're giving that lecture, so stay tuned. That's really important. I can't emphasize how important this lecture is that Carl is going to give. He's one of our founding fathers here in our basic course. And he's going to give an excellent lecture. But you've got to go out and you've got to get yourself to that site and learn what the essential functions of each job is. OK. Circle this slide. I cannot emphasize how this is going to keep you out of trouble. Underline it. Take a yellow marker out on my things. Yellow this. Put three things down. When you do an examination and you're deciding you can't make your decision on when you're going to let them work or not based on speculation of risk of future injury, you can only reject them if there's a high, high probability of substantial harm that cannot be accommodated. You've got to be careful. I can't emphasize. You're going to get yourself in trouble. You cannot say, oh, I think he may hurt himself. He's at risk. OK. If you have any doubt, go get those separate IMEs. And I'm going to talk a little bit more about that today in my second lecture, OK? But you can only reject them for the position now if there's a substantial harm that cannot be accommodated. Seek outside help on this or you're going to have an ADA claim. All right. Using that as an example, what about somebody who comes in and their blood pressure's 205 over, they can't press like a switch. Like to do what? No, like let's say it's a factory job. And their blood pressure is like 180 over 105. Doesn't matter. That's not a central function of the job. For ADA purposes, you can't say there's a substantial risk. Now, you would note that you would make the notation and make the note to them that they should see their personal doctor, OK? But you can probably temporarily halt them. Right. But you can't say they're not qualified for that position on the basis of that. Not qualified pending further and then get information. Correct. But you can't transmit that information to the employer. That does not pertain to, you know, don't take them off. OK, now, Carl on Friday is giving our DOT course, correct? Is it Friday or Saturday, OK? By the way, if any of you, that is an excellent course at the college. I think Carl and Liz will be doing that. And who else is lecturing on that? Dan Houston? It's a lot of people, a lot of virtual people this time. Yeah, a lot of virtual people. OK, I took that course. It allowed me to pass the test. So let's say you've got someone applying for, they're doing their DOT physical. And you've taken our course, our basic course here on Friday, and you're up to snuff. So they don't meet the standards. They don't have the vision standards, the new vision standards that Carl just told you in this course. Well, he says, well, you've got to pass me anyway, Carl. I got ADA as amended, and Dr. Fowler says it covers everyone. Eh, no way. It does not override medical exam requirements under local and federal law. Does not, does not. So tough luck. They can try, but Carl's still not going to give them that DOT card. Yes. And if somebody threatens you, which I've had that happen. From the ADA? Yeah, oh, no, no, yeah. The patient threatens. Yeah. Bodily harm if I didn't pass it. I need to transmit that to the CEO folks. They want to know. Oh, yeah, yeah. If I had a nickel for every DOT physicals I've done in my life, I could retire by that. But anyway. All right, just remember that. So when you do DOT, there's federal requirements. Some of you may be involved in return to work examinations typically. These are people already employed. They've been out for some physical reason. This is not, you have to be very job specific, job focused. You must allow a worker with a disability to return to work, even if not fully recovered. Unless, again, here you go. They cannot perform the essential function of the job with or without accommodations, or they would pose a significant risk of substantial harm. Significant risk of substantial harm. When you get into a courtroom, that's a high bar. So just think about that. And if you don't know what to do, punt. Get their surgeon, you're coming back for return to work. Get the surgeons who just operated on them to give you a note what they can and do. Don't put your neck out there. OK, guys? All right. Accommodations. Reasonable accommodations. That's what it all comes down to now. That's what you're dealing with in occupational medicine. Because practically everybody is covered now under the Amendment Act. You don't have to go through this recitation that Dr. Fowler just had you do. Everybody's covered now. So the question comes, can we reasonably accommodate them or not? And that's what you're mainly involved in the day-to-day operations. And your occupation is helping your employers, what can they do, what we can reasonably accommodate. OK, what does the law say? Employers are required to accommodate known physical and mental impairments. They're not required to accommodate disabilities they're unaware. So can they make an inquiry? No, the employee's got to say, hey, the employer can hand them the form and says, but it's up to the employee to inform the employer what they can and can't do. All right, so what are we talking about when we're talking about these reasonable accommodations? Well, what we're talking about is the wheelchair, making existing facilities accessible, restructuring the jobs, providing part-time or modified work schedules, acquiring a modified equipment, modifying policies, so on. All right, reassigning individual disabilities to vacant positions. All right, undue hardship. The employer is not required to reasonably accommodate an individual if doing so would pose an undue hardship, a significant expense, or difficulty. So how do you determine undue hardship? Well, I was one of the chief physicians for Ford Motor Company. Does Ford Motor Company have the resources to accommodate someone? Yeah, OK, but if I'm working for a small mom and pop 16-employee shop, yeah, it may be a little different story. By the way, oh, we go reasonable accommodation. I still remember. I got to tell this story. The physician at the plant called me up, and he says, I've got this person with carpal tunnel, and he's the bumper installer on the front of a Taurus. And we're part of our SUVs. And he says, he's getting repetitive muscle injuries. So I said, OK, let's just do a reasonable. We'll do a reasonable accommodation. Instead of just, he was only on the right. So he was just lifting all day long. We had one car coming through a minute. And I said, OK, we'll just put him on half the time or the next day, switch him, and put him over to the left side of the line. On Monday, Wednesday, Friday, you can do the right. Wednesday, you can do the left. Reasonable accommodation. Oh, no, the union UAW got involved. That's a seniority position. I said, what's the difference between the right bumper and the left bumper? Don't get me started. Please don't get me started. So that's what you're dealing with many times when you're talking about undue hardship. All right. Dean, quick question here. What employers are not covered under the ADA? If you're less than 15, you're not covered? Dean and I, we're federal employees right now. Are we covered in the ADA? No. Do you know how many seminars I've been to from HR where they say, oh, the ADA says, and I always get my hand up, and I raise, and these HR people in the federal government say, no, no, no, the people who are federal employees like Dean and I in this room are covered under the Rehabilitation Act, which has many, many similar provisions as the Amended Act. Now, Dean, you had mentioned something before you wanted to talk about a little bit. You said about the veterans, so on. So we know that marijuana is legalized in many states. I live in Illinois currently, and it's legal. Recreational marijuana is legal in Illinois. However, it's not legal to take marijuana or use Marinol or any of these other ones if you're a federal employee. Or if you're a veteran and you want to get the VA, for instance, to pay for your marijuana or pay for your Marinol or pay for anything like that, it's still not covered. For now, for now. I don't know anything now I don't know. Exactly. So you never know where that's going to go, but it's always a bone of contention with some of the veterans. Yeah, and Dean is absolutely right. When you get into alcohol and drug use, again, in reference to the ADA, please just put up a huge caution sign. Get the employer involved on that. Don't put your neck out on these and saying they're disabled or not. Tribes are not, North American tribes, and certain tax-exempt private memberships are not covered. So the bottom line, who's not covered under the ADA? If you're under 15 employees, once you get to 15, you're covered. And then the federal government is a very similar position, but not specifically the ADA. All right. Can I hear a clapping? We are done with the ADA. Thank the Lord. Yeah. This is always, I hate giving this lecture. I got to keep updating. They're always constantly changing. Do I have any questions right now from my audience here or of our Zoom audience? And I'm going to have our lovely assistant here help me here. We're going to discuss the ADA questions right now. Where are, in our chat, I don't know where they are. Here we go. OK. I was told that there was some in the chat. OK. Or can we open it up where they can ask questions now on the ADA? Yes. Can they ask it through the chat? Or should I do, how should I do this? So if anybody would like to ask a question, they can unmute themselves, turn on their video, and ask now. Hi, this is Randy. I posted a question in the chat. How do you, thank you, that was excellent, thank you. I know you said we're not permitted to ask, we're not permitted to do medical, we're not trying to do CAPTCHAs, and nobody's interested in trying to do GOTCHAs. But what do you do when an employee shows up and they're in the pre-hire phase, they're in onboarding, they're in that, they're still getting their medical examination. And out of the blue, they just, I had somebody who was showing up and completely, totally unrelated said, oh, I get these, I mean, they just said horrible things. I get these crippling migraines. I can't look at computer screens. I can't function. Sometimes I can't think clearly. And it's hard to talk. I mean, her entire job is literally customer service. This is like the three essential functions of her job. She hasn't even started yet, and she's volunteering all this information. What am I supposed to, I didn't ask her any, what am I supposed to do with that? OK, so again, OK, hang tight because we're going to go a little bit in the genetic information, which is not really pertaining to that. But I'm going to talk a little bit more about that. Hold that question. But the bottom line on that question is you've got to know what that essential job is. And yes, if she's taking all these migraines, she's on prophylactic migraine. But can she still do the eventual? So on a case like that, you could possibly, if you had a question whether she could perform the essential functions of her job with her accommodation, but she may be, she may need, in that situation, I would ask her, hey, is she able to work here? Does she need a different type of schedule? What could accommodate her? So not only that, does she qualify for the job, but remember, if you qualify with reasonable accommodations. So knowing what the employer can accommodate, that would be another issue that you'd have to discuss with the employer afterwards. And you may have to get the neurologist involved also who's treating her. So again, these are not easy questions on that, but so on. OK. Any other questions? Thank you. Other questions? All right. I'm going to need your help back. Let's go back. I'm going to put it to ask disability the candidate discloses some. OK. Any other questions? All right. We are going to move on here. We've got a few more other subjects to discuss here. OK. All right. Yes, excellent. OK. It's not advancing. There you go. OK. All right. So we're done with the ADA. Yay. All right. So now the next subject is gene, I call it, the Genetic Information Non-Discrimination Act. Who has seen the movie, and I'm not saying this right, Gattaca? Gattaca? That's right. Is that right? Who has seen that movie? I haven't seen it. I've been lecturing on this for a while. What is the G and the A? These are the nucleobases. This was genetic manipulation movie. I don't think it won Academy Award, did it? No. No. It wasn't pretty bad. We were just watching. You only need to watch about the first three minutes, five minutes of the movie. It starts with a baby. And I mean, I'll just talk loud. Talk loud. Here. Yeah. This is my slide because I used to do this lecture. And Gattaca starts, it's a movie where they start with a baby that's just been born and it just got back its genetic screen, if you will, or information. And they're going to decide at this point what it can and cannot be when it grows up. And the baby is two weeks old. And so they've already, and that's this particular dystopian world where, no, no, you can't be an astronaut because you've got the wrong base pair here. And you've got a risk for having heart disease when you're in your 40s. So this movie was about making a better genetic human being. So when we use GINA, GINA was a law that says, well, we want to look at preventing people from getting jobs from genetic conditions. So why was this act done? Well, now we've got more sophisticated tests and we can becoming genetic causes for diseases is becoming more and more available. And there's a risk employers will make a decision on hiring, firing basis of future disease risk. Why would they wanna do this? Duh, they're insurance premiums, okay? Or if you're a life insurance company, well, I'd like to know if Murray's mom and dad died at age 30 of a heart attack, right? I'd really love to know that. Or was, you know, Huntington's disease or something like that. Holy, holy mackerel, correct, right. So that's where this is moving. So now we have this new genetic information. So what can you and can't you do now in your occupational medicine practice, okay? Well, this act was passed about the same time as the ADA amended act. And what does it do? It prevents your employers from collecting genetic information. And it prevents from using genetic information in hiring, firing or promotion decisions. It forbids insurance company from considering any genetic information in rate setting. Wow, big difference. So what's covered? All lab, genetic testing, even your ethnic information. All right, family, medical history or even a vicarious knowledge of family history. So how does this relate to you in everyday occupational medicine practice? Well, I advise you don't collect any more family history when you're doing a pre-employment or fitness to duty exams. Don't collect the family history for when you're doing an IME exam. Wait a minute, Dr. Fowler. I've been taught all through osteopathic medical school, complete history and physical examination. And I got dinged if I didn't do it. Medicare is gonna ding me if I don't have family history, okay? So what I do is add a statement to the office notes saying intentional omission of family history due to genome. So our goal is not to disadvantage the workers based on genetic information, which may be risk, but not truth. But again, like I just said, aren't we losing important genetic information, important clinical information that come in with an injury? I wanna know that. So here's what I suggest, all right? The first task is always an accurate diagnosis. You may need that family history, all right? We can still collect it. You can collect it. During the clinical examination, here's my advice to you. Go ahead and verbally collect that family history. Write it on another separate note right here. Like I got my pad right here, right now, all right? If it's relevant, if you think it's relevant to the job, or you can write it in the official note. If it's not relevant, here, I use this statement. Family history was reviewed with the patient and found not relevant to the patient's condition, excluded because of genome. Then you got yourself covered yourself and you covered yourself under the ADA, all right? Any questions on GINA? Let's move forward. Family medical review act. I remember the first time, for the first day I was informed, didn't have a work comp injury. HR came into me with a whole stack of FMLA leave approvals. You're like, you don't want the VA, you got the same thing, all right? FMLA approved. And I'm going, what the heck? This is not what I signed up for. So this is why we've included in this family medical leave act. You gotta know a little bit about it. We're gonna see some different changes here with COVID Tulsa, all right? All workers were able to take, what's the goal of this? You should be able to take unpaid time away from work to care for yourselves or family members. And what's it do? So you don't lose your job. Bottom line, this job flexibility traditionally has been more available for management white collar workers than the average blue collar workers and part-time or hourly employees. How are you qualified for medical and family reasons? What does it include? So what can you claim for family medical leave act? Personal or family illness, family military leave, pregnancy, adoption, foster care, placement of a child. Okay, so it is pretty inclusive now. Is it paid or not paid? Unpaid. Unpaid. Say that again. Unpaid. How many weeks? 12. 12 weeks. Unpaid. How many weeks? 12 weeks. 12 weeks per year. Unpaid. Per 12 month period. Can, you're right. So it can be. So starting February, it ends the 5th of February. Does it have to be continuous? No. Can it be intermittent? Can it be scheduled? Yes. But the thing is it's unpaid unless you're a federal employee. We'll get to that in a minute, all right? Okay, so you can, so does this create problems for a small employer? Oh my goodness. Okay. So they strive to just, they barely have enough workers on that assembly line to do the due job. It's confusion because they may have to right-size their workforce. Can they, somebody in that family, are they going, do they know that person? They say, well, I don't want to come back after that. And then, well, they may have a good applicant for the new job, but can they hire them now? They don't have the positional. So this becomes, for skilled positions, this becomes a major problem. And again, you may not know for three months if they need to hire a replacement or not. Okay, what happens in reality? Can employers force them to take FMLE? Yeah, sure. The employer could do it, but they got to have it written down in their employee manual. Even if there's a number, what other way to take time off? All right, so again, it should be an employee manual. This prevents stacking. Okay, that's FMLE. We just got over COVID. Oh, by the way, what is now the number one claim for ADA now going on? Long COVID. Long COVID, yes. You're going to see that regardless if you have any symptoms or not. Right, the claim of long COVID now is just flooding ADAs for reasonable accommodations. And of course, I can't go back to work because I got long COVID and I'm too tired, so I have to keep teleworking, blah, blah, blah, blah, blah. But are you covered under the ADA? Yeah, everybody's covered under the ADA. Right, okay. So we had this thing, the Family First COVID Response Act for the last two years, it gave you paid sick leave, expanded Family Medical Leave Act. It actually expired in 20, it has not been renewed. They got certain tax advantages continued in 21, but hang tight, I don't know what the story on this is going to be in 22, but right now it's not in effect. Okay, let's review a little bit. Which of the following is false in regards to the American Disabilities Act? Is considered the Bill of Rights for Persons with Disabilities, true or false? Yes, sir. True, yes. Contains five major sections or titles? Yes. True. Requires all employers to comply with regulations? No, sir. And who's not covered? Federal government, anybody under fifth right? Okay, and was, of course, was amended in 2008. All right, a person protected under the amended ADA has all the following, physical or mental impairments, substantial limits for major life activities? Yes. Or has a record of impairment? Yes. Or is regarded by others as having impairment? Yes. Has evidence of current drug use? Remember that. All right. FMLA entitles a worker, FMLA, with a qualified two, six months paid leave, three months unpaid, six months? B. B. 12 weeks, three months, 12, it's officially 12 weeks, unpaid leave. By the way. Yes. Clearly anything under FMLA, well, it says unpaid. Some of the employers are fairly magnanimous and generous and will provide some sort of pay. Absolutely, absolutely. Or they may have a program where they'll, which you want FMLA, and then short-term disability kicks in, and then long-term, it depends upon. Excellent, right, right. They can pay, that's up to the employer to do that. The minimum federal bar is they can't lose their job. That's where the FMLA is put in. Correct, that's excellent point. Okay. True or false? Hereditary disease screening is a valuable tool that life and health insurance companies may use to screen applicants. False. However, under the, here's a good one. Under the Affordable Care Act, this information may be used only to set rates, not to deny coverage. No, of course not. Forget the four, it has nothing to do with it. All right. Under GINA, you can't use to set rates. All right. A worker may request leave under FMLA to receive treatment for drug and alcohol abuse. Yes, sir. Of course, yeah, that's a trick question, right. FMLA, it doesn't matter. I was trying to look very closely what the questions say. But on FMLA, you can request any personal medical leave act. I've requested a lot of stuff. You have the right to ask any question you want. I've requested to get a unicorn with donuts on its horn. All right, you guys, questions now from our live audience or our Zoom, our very wonderful Zoom audience. And help me here. I'll make sure we open the chat. So one of the things, Murray, you just, is it Dr. Murray or your first name Murray? No, my first name is Murray. Okay. You had just mentioned, so that kind of has confused me in the past, some of these worker comp injuries, some of the employers will sometimes concurrently run the FMLA with it. So then they show up not only with their work-related injury paperwork, but also their FMLA paperwork for us to fill out as well. So like, I guess how is, I don't understand how that works. Okay, I'll tell you what it is. I'll tell you. As a person who experienced that, as well as a physician who has to have done that. All that happens is you fill out those types of papers. Of course, the FMLA goes in one direction and the rest of it, you know, leave. But some of those things they ask, it's like, can you, I usually put unknown at this date. I mean, I leave it very open-ended. I do leave it open-ended and I say, you know, while unknown at this time, I expect that this person will possibly need to come as often as, and as little as, and I'll give a range of things. And I might say, I expect that they're going to be out of work through, at least to be re-evaluated later. But I always put not out of work because from a worker's comp standpoint, I try never to take people off. So I always say return to work with restrictions. However, if they're not accommodated, that's not my problem. That's not your problem. But one of the things is, is that we as physicians, correct me if I'm wrong, Paul, we as physicians make a determination of, can they physically, medically do the job? Do they have an impairment versus are they disabled, which is an administrative thing? Let me give you an example. Car accident happens to people and they're the go-frogs, their right arm. One of them is a lawyer and the other one is a concert violinist. The concert violin, they're both impaired. The concert violinist clearly can't do that job whereas the lawyer can still, he didn't get his mouth closed, you know. But lawyers have to be able to use hand gestures. I'm sorry, I'm- I've seen too many Jewish lawyers. I'll give you a slightly different answer to that. I have a question here. A slightly different answer to that question, which is when you look at the FMLA paperwork, there's different sections. There's must be off work. There's off work occasionally and there's can work limitations. That's actually one of the sections of the form. Just felt the right, just felt the right form. And the whole idea is the employer doesn't want you to stack. What that means is you're off work. One, workers come for two months. Then you get used to being home. And then all of a sudden it's FMLA and getting another three months off work and with the employer having no idea if you're ever gonna come back. And one of the things that is definitely, you'll see this a lot is as soon as somebody's off work for whatever reason- They're gonna throw the kitchen sink in. No, no. Then they start accumulating family responsibilities. Like they'll do dumb stuff, like take their kid out of daycare because why should we pay daycare if you're gonna be home anyway? And then three weeks later they'll put the kid back in daycare but there's no spot for him anymore because that's evaporated. And now they're like, how am I gonna go back to work if I'm taking my kid? You gotta make him a toy. And so that's what I don't want you to stop. I don't want you to just have another thing. You should go out one and later on. Remember FMLA is everybody for everything. But it is unpaid. Yeah. So it does have to be unpaid. One real quick thing. I got to answer one more question. Family practice, family medicine? I'm in an OCMED clinic, but family practice, I work for- It's very different. So I'm OCMED trained. However, I'm working in internal medicine right now. I'm a women's health provider in internal medicine. I'm not doing OCMED right now for the VA. Yeah, I switched jobs. It's very difficult walking with your training and nothing against internal medicine or anything like, but it's very difficult. You got to stay in your lane. If you're doing internal medicine family practice, you're trying to stay in that lane. And then when you're doing OCMED, you got to stay in that lane. It's very difficult. I mean, it can be easy- A lot more forensics in this one. It's easy to drift out of that family, and start saying, all right, I'm thinking more like a family practitioner and thinking more of an internal medicine doctor. And I really need to start thinking more of like an OCMED doctor and not trying to think, you know, it's like, I'm worried about this person. She might not take her medication. I'm worried about this person. He might not go to his physical therapy. So he can't, don't worry about that. You know, try to stay in that OCMED. And it's difficult. It's difficult. I got one question from our zoo audience. Randolph, are you there? Yes. Okay. So Randolph, I have a question. You said you're not permitted to, give me the question you want to ask here. I'm sorry. That was, you had asked me to hold off on that question. You said you would- Go ahead. Go ahead. Go ahead. That was the situation with the person who disclosed that they had migraines. Oh, okay. Gotcha. Okay, great. Okay. Like I said, if they're, you know, you can't ask about disabilities if they disclose it, then you can certainly take that into consideration, but you have to look again at the essential functions. All right. And again, they'll be coming to you and saying, you know, they got disabilities. That's all key. You can't do, you can't know, you can't give accommodations to people who don't disclose it. They have to disclose it, but you can't ask, do you have this? Until they ask for that reasonable accommodation. Okay. Any other questions on the ADA? Anybody else? So if on a pre-employment fiscal, you have your pre-employment, just assume that I use the right words. Okay. They've been given, and then they're giving their history on their sheet. And many of them come in and they don't mark anything and they don't mark any medications. Is it up to me? Many times I'll say, I reviewed your sheet and I didn't see you marked yes to anything. And they nod. And then I take any medications? No. But then that really is, if they don't disclose any of that, it's really- What relevance is that? The only relevance, if you've got someone working on a high beam and knowing if they're on seizure medicines or not. Right. Remember, what's the test? Substantial risk. Right. Okay. So is that relevant to someone doing a secretarial job? No. Okay. So to answer to your question, it's just like for DOT. If they don't disclose it, you're off the hook. If they don't disclose it on DOT and they have it, and that could be- Yeah, DOT is a whole different book. That's a whole different book. With a pre-employment factory job, they don't disclose it. I mean- No, but it's the same issue. They haven't told you. Right. You're off the hook. Okay. That's, you didn't like not, if you didn't say yes, you can go ahead and operate heavy equipment despite your seizures. Right. Because you didn't know. Right. That that would, you'll be safe. I mean, you don't have to go. And one of the big questions that will drive the lawyer nuts is let's just say you work someplace where you can see the rest of their medical history. Like when you open the record, their medicines are there. And they report they have no medicines. That's a whole different question. So if you're both their family practice doctor- Oh yeah, now that's where you're running into a big- Well, I'm not even going there, I'm just saying. Yeah. No, no, no, I'm not going there either. Nowadays, they say, well, look at my Epic chart. And I'm like, no, no, I don't want to look in your Epic chart. Thank you. You tell me what you want me to know. Please don't ask me to ferret through your family practice chart because that's not my role. Yeah, I'll tell you what, another thing I do, and again, my primary job is a medical malpractice attorney defense. When I'm doing a physical examination for work, I would, first thing I say to them, hey, this exam is determining your ability to safely work in your position or not. It does not take the place of a regular physical by your personal physician. Because I can't tell you how many people, I got a student yesterday, I'm defending, where they went in and they did a DOT physical and they're claiming we failed to diagnose cancer. They actually filed this. Okay, well, it's filed. I don't- Big acclaim, okay? I don't have a crystal ball. That's where you run into problems. I state that very clearly in my notes to cover myself later, okay? Because I got a claim, active claim right now. So you're damned if you do and damned if you don't, essentially in a lot of these situations. So that's what becomes very important, your legal issues and occupational mess. So you've heard enough of this attorney. You get more of me at two o'clock. So I'm gonna let Liz go on and introduce our next speaker. Thank you all for listening to me. Thank you.

Americans with Disabilities Act

Genetic Information Non-Discrimination Act

Family Medical Leave Act

occupational medicine

reasonable accommodations

disability protection

genetic information

long COVID

employment law