Apparently I was supposed to lie: back injury preventing hospital hiring

Long Term Care Columnist / Guide · Jun 29, 2013

I wish I had some words of wisdom for you, but I know that the corporations that run healthcare institutions have offices full of lawyers at their disposal, and those lawyers have a million and one ways of getting around the Americans with Disabilities Act and the Equal Employment Opportunity Commission. That's a fact....one I, too, had to learn the hard way a couple of months ago when I was fired for having a disability that my former employer decided they couldn't accommodate. No attempt was made to accommodate me either......it was just "Sorry, you can't do the job anymore, see you later."

Best I can tell you is to check with an attorney yourself, preferably one who is an expert in employment law. Just don't hold out much hope, because you can bet that hospital has checked with theirs and they are probably very well protected by some obscure law that we know nothing about unless we've read the whole of the ADA.

I was going to pursue my case because I was so angry at having been unceremoniously dumped for an illness I never chose to have, but even my doctor said that my chances of winning were 50-50 at best. And besides......who wants to work for a place where they treat people like that??

Woodenpug, BSN · Jun 29, 2013

Where I work the official policy is zero tolerance for Narcotic use. If you show positive it is grounds for immediate dismissal. Many nurses refuse to take prescription pain meds after an injury. That is actually an overly strict interpretation of the policy. The full story is that therapeutic use is permitted. They just don't want recreational users to try that as an excuse. It is possible that someone is just checking to see if they can detect the difference between therapeutic use and recreational use. It's more expensive but the difference can be detected. NORCO (HYDROCODONE BITATRATE AND ACETAMINOPHEN) TABLET [PHYSICIANS TOTAL CARE, INC.] has a very detailed pharmacokinetics for narco.

Bonus points to you for being honest. I would not want to work for a place that could not accommodate, occasional therapeutic use of narco.

Jory, MSN, APRN, CNM · Jun 29, 2013

Where I work the official policy is zero tolerance for Narcotic use. If you show positive it is grounds for immediate dismissal. Many nurses refuse to take prescription pain meds after an injury. That is actually an overly strict interpretation of the policy. The full story is that therapeutic use is permitted. They just don't want recreational users to try that as an excuse. It is possible that someone is just checking to see if they can detect the difference between therapeutic use and recreational use. It's more expensive but the difference can be detected. NORCO (HYDROCODONE BITATRATE AND ACETAMINOPHEN) TABLET [PHYSICIANS TOTAL CARE, INC.] has a very detailed pharmacokinetics for narco.
Bonus points to you for being honest. I would not want to work for a place that could not accommodate, occasional therapeutic use of narco.

That is a violation of American's with Disabilities act. No, you have the right to be treated for an injury...and there is a difference between using narcotics and working (which a hospital cannot allow) and taking them OFF duty for legitimate purposes, such as chronic pain, surgery, or short-term injuries.

I have a prescription for narcotics that I take, my employer knows I take, to "break" migraine cycles and I use them sparingly. I don't take them within 24 hours of reporting to a shift (if I have to take one, I call in, I have only had to do that once). I have had two surgeries since I had my job where I was given morphine, etc. plus post-operative pain meds and I wasn't going to sit there and suffer and not take anything.

No, it is ridiculous that a nurse can "never ever" take a narcotic. What she cannot do, is take them while working, regardless of the reason.

If your facility has a blanket "no narcotics rule" they can find themselves in a major lawsuit if they fire someone because they take a narcotic for a legitimate purpose that does not interfere with their work.

So, if the OP has a patch that she uses occasionally (and I would say that every 3 to 4 months is appropriate use) as long as she removes in X number of hours before reporting to work, she is ok. However, I have a feeling that it's not the medication she is on, but her back.

Yes, she may be able to perform the duties of her job, but she has applied as a tech in the ER, where situations can come hard, fast and be highly unpredictable. Moving quickly and being asked to help with a patient on a dime can put her back at risk for further injury and that leaves the hospital trying to figure out (if she is out because of her back) if she is due workman's comp because of her old injury or a new injury.

I feel for the OP, but if I was the hiring manager, I wouldn't take a chance on this happening. It is not that the OP cannot work in a hospital, but I would say that the ER is probably the one place in the entire hospital where she is the most vulnerable to injury...mainly because there is no time to get someone else in case of an emergency.

In some departments, this type of accommodation cannot be made. There is no time during an emergency to say, "Oh, gosh, my back is hurting today and I'm afraid it's getting worse...can we call someone else to help?" Seconds are an eternity and someone else may not be available...every person in the ER must be able to function at 100%.

I feel for the OP, I really do...she is one of the few that has a legitimate injury and isn't using it as an excuse to score more pain pills, which is rare and I applaud that. However, the hospital must make decisions based on what is safest for both the patient and the employee...I cannot disagree with that.

dishes, BSN, RN · Jun 29, 2013

The rate of occupational back injury and re-injury in nursing is high and like jory mentioned it can be a battle to determine if it is the old injury or re-injury that it is filed under with workman's comp. Any nursing positions that require lifting, turning, repositioning, and transferring patients pose a greater risk of re-injury than nursing positions that do not require these skills.

Home Health Columnist / Guide · Jun 29, 2013

Back and muscle sprain injuries are the #1 cause of work comp claims in healthcare facilities. The ER is one of the areas having the highest rates of Work Comp claims because of the amount of patients flowing through unit each day, along with higher number patients needing pulling/lifting in bed, transfering to/moving stretchers, transporting to radiology, etc. It's not the fact that you take pain meds affecting hiring: accepting an employee with known back injury is a red flag to work comp staff as disproportionate #persons with one back injury face repeat injury. Asking to work in an area that would have higher exposure to re-injury is the issue.

Facilities need employees who can work and perform the full function of the position upon hiring. Providing documentation from ortho docs to prove your injury is healed and cleared to work will require second review of your application. Expect to be required to pass a push/pull test to prove you can lift 50 lbs safely, if not done at first exam.

If they say no again due to your type of injury, might be upsetting to you. However look at it differently: they are trying to help prevent re-injuring your back. Another unit may be a better fit for you.

Occupational Injuries, Illnesses, and Fatalities among Nursing

ANA Handle With Care® Backgrounder - ANA Safe Patient Handling

Nursing and Musculoskeletal Disorders Over the past decade, much attention has been given to the issue of ergonomic hazards as a health and safety concern among health care workers. Professional nursing groups, labor organizations, industry, regulatory agencies, and the scientific community have converged in attempts to arrive at effective solutions to protect health care workers from ergonomic hazards associated with manual patient handling. Despite the recognition that manual patient handling is a high-hazard task, the incidence of musculoskeletal disorders (MSDs) persists at high rates for nurses and other nursing personnel - signaling the need for continued action. Emerging efforts to prevent musculoskeletal injuries have concentrated on reducing exposures through the use of assistive equipment and devices for patient handling.
Patient handling tasks are recognized as the primary cause for MSDs among the nursing workforce. A variety of patient handling tasks exist within the context of nursing care, such as lifting, transferring, and repositioning patients, and, are typically performed manually. Continuous, repeated performance of these activities throughout one's working lifetime results in the development of MSDs. Of primary concern are back injuries and shoulder strains, which can both be severely debilitating for nurses. One study found that 48 percent of nurses experience chronic back pain

ANA Brochure: Preventing Back Injuries: Safe Patient Handling and Movement [pdf]

Woodenpug, BSN · Jun 29, 2013

If your facility has a blanket "no narcotics rule" they can find themselves in a major lawsuit if they fire someone because they take a narcotic for a legitimate purpose that does not interfere with their work.

No Jory it does not have a blanket policy, as I said. But many, interpret the Zero tolerance policy to mean zero narcotic use. I was suggesting that someone, was one of those and they are just checking it out. They have yet to flat out say "sorry we are considering others at this time."

Esme12, ASN, BSN, RN · Jun 30, 2013

Technically regardless of the statistics about nurses and back injury.....to deny someone employment based on health/injury technically against the law. But they do it every single day.

The problem.....prove it (hospitals have access to high power lawyers and know how to circumvent the law easily). Then if you sue you become marked and black balled.....hospitals are really a small intertwined environment and they talk!

However.....since you asked for no accommodations is it really "legal" to deny you employment on a supposed disability that technically doesn't exist without documentation that a disability exists.....no they can't.

Do they get away with it? Yes....hospitals have become very bold in their interpretation of the law and their rights under that law....the problem ......many nurses won't sue or peruse legal action because of the cost (very few lawyers will do pro-bono against the hospitals) and many nurses are afraid of being marked and having repercussions. You can always make a complaint with the EEOC.....which is free. This recent case makes for interesting reading..........]http://www.eeoc.gov/eeoc/newsroom/release/10-3-12c.cfm

PRESS RELEASE
10-3-12

New Hanover Regional Medical Center to Pay $146K to Settle EEOC Disability Discrimination Suit

Hospital Punished or Shunned Employees and Applicants for Taking Prescribed Medications, Federal Agency Charged
WILMINGTON, N.C. - New Hanover Regional Medical Center will pay $146,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that the center violated the Americans with Disabilities Act (ADA) by prohibiting applicants and employees from working if they were taking legally prescribed narcotic medications.
According to the EEOC's lawsuit, filed in U.S. District Court for the Eastern District of North Carolina (Equal Employment Opportunity Commission v. New Hanover Regional Medical Center; Civil Action No. 7:09-CV-0085), Elizabeth Saunders, Mary Eubanks, Allison Burge and other similarly situated applicants and employees were denied hire or placed on leave by the medical center because they were taking prescribed narcotic medications. The complaint alleged that such action was taken because New Hanover perceived persons taking narcotic medications as being disabled as defined by the ADA.

I am sending positive thoughts/prayers that they re-consider.

dishes, BSN, RN · Jun 30, 2013

The ability to lift weight, twist, bend, push and pull a static object does not predict safe ability to lift, turn, or transfer a patient. Patients are not static objects, an emergency department sees patients with; MI, stroke, head injury, alcohol toxicity, severe pain, and agitation and any of these conditions can lead to unpredictable responses from the patient when a nurse is moving them. Its often these sudden, unpredictable patient responses that lead to back injury in nursing staff.

brandy1017, ASN, RN · Jun 30, 2013

The ability to lift weight, twist, bend, push and pull a static object does not predict safe ability to lift, turn, or transfer a patient. Patients are not static objects, an emergency department sees patients with; MI, stroke, head injury, alcohol toxicity, severe pain, and agitation and any of these conditions can lead to unpredictable responses from the patient when a nurse is moving them. Its often these sudden, unpredictable patient responses that lead to back injury in nursing staff.

This risk can happen anywhere in a hospital not just the ER!

jadelpn, LPN, EMT-B · Jun 30, 2013

But OP as you have noted, you no longer have a back injury, and are cleared for unrestricted duty. Therefore, I wouldn't call it a disability. And with a disability to be accommodated, you usually have to have an MD's letter stating such, and some receive SSDI insurance, that type of thing. A facility is not under any obligation to hire someone who has pain issues.

I am curious if your physical with the MD, the back injury did come up as part of your PMH, and are you sure that the MD didn't state that he questioned your physical ability to do the job? I question the thought process of taking a 3-4 month use of a narcotic pain med right before a drug test, however, what is done is done and you can only move forward from here. I would be entirely sure that your PMH is not going to continue to come back an haunt you for your career in the medical field. To consult an attorney regarding this would be in your best interest.

However, with a job that requires lifting, on one's feet for 12 hours, and other duties of an ER technician, it could be enough to make your occasional pain chronic pain.

Never the less, if you have an acceptance letter in writing, and can prove that you were offered the job, then I would consult an attorney regarding your options, and your options going forward.

dishes, BSN, RN · Jun 30, 2013

It's premature to consult an attorney at this point, the employers final decision is still pending. If their final decision is to rescind the job offer, I doubt that they will give disability as the reason in writing.