Publications
APS Bulletin • Volume 9, Number 3, May/June 1999
Pain and Public Policy
Michael A. Ashburn, MD, and Corey D. Fox, PhD, Department Editors
Chronic Pain and the Americans with Disabilities Act
Most pain practitioners regularly encounter cases in which the resolution of patients disability is important to ensure clinical success and pain program credibility. Such cases generally involve workers compensation claims and, to a lesser degree, beneficiaries or claimants of the Social Security Disability Insurance Program (SSDI) or private long-term disability (LTD) programs. However, pain practitioners generally have only minimal contact with issues and cases surrounding the Americans with Disabilities Act (ADA) (1990). The ADA is an important program that illustrates many of the challenges of successfully addressing disability management issues for people with chronic pain.
Background
The movement to establish rights for people with disabilities has a long history, which will not be reviewed here. Federal legislation aimed at reducing discrimination against people with disabilities dates back to at least 1968, when bills similar to the ADA began to be introduced. The ADA was signed into law in 1990, and most of the employment provisions became effective in 1992.
The ADA employs the same definition of disability employed in Section 504 of the Rehabilitation Act of 1973. A person with a disability is considered someone who
- has a physical or mental impairment that substantially limits that person in some major life activity;
- has a record of such a physical or mental impairment; or
- is regarded as having such a physical or mental impairment.
Practitioners are concerned primarily with the provisions of Title I of the ADA, which prohibit employers with 15 or more employees from discriminating against people with disabilities for purposes of hiring, promotion, discharge, benefits, or any other aspect of employment. These provisions apply to all current or prospective employees who are qualified, which means that employees with disabilities must be able to perform the essential functions of a job, whether or not employers provide reasonable accommodations for them. Furthermore, employers should experience no undue hardship or threats by hiring or retaining such employees or by providing reasonable accommodations for them.
Effect of the law
There is considerable controversy among disability advocates and employers about the effect of the ADA on the employment of disabled people. About two-thirds of Americans with disabilities were unemployed in 1994, a rate that is nearly identical to the rate in 1986, but the proportion of unemployed people with disabilities who say they want to work has risen from approximately 66% to 79% (LaPlante, 1997). This trend cannot reasonably be attributed to the ADA, but the beneficial effects of the statute certainly have not been realized.
The agency that enforces most of the provisions of the ADA is the Department of Labors Equal Employment Opportunity Commission (EEOC). Discrimination complaints that have been filed with the EEOC are summarized in Table 1.
TABLE 1. Depicts trends in claims filings for the five leading problems by diagnostic category. |
Before the passage of the ADA, many policy experts had predicted that claims filings for back disorders and related musculoskeletal problems would become a significant problem, especially among people receiving workers compensation benefits. This, in fact, does appear to have been the case. Notable rates for neurological problems and extremity diagnoses, of which carpal tunnel syndromes and various repetitive strain injuries constitute a significant proportion, have also been documented. These types of complaints also have emerged principally from workers compensation claims.
In 1998, psychiatric diagnoses for the first time surpassed back problems in the number of complaints filed. The trends are complex and difficult to interpret; but many employers have attributed this fact to more aggressive management of musculoskeletal problems and to the ambiguity of behavioral health problems, allowing claimants more latitude in obtaining disability certifications from practitioners. Nevertheless, the various musculoskeletal problems, for which pain is the major complaint, still account for the largest share of the filings. The rates for more traditional diagnostic categories (e.g., cardiovascular problems, diabetes, cancer) have remained relatively constant since 1993 (the first full year of ADA authority) and are well below those for pain-related problems.
The principal employer violations cited in EEOC complaints, in order of frequency, have included
- Unwarranted discharge
- Failure to provide reasonable accommodations
- Harassment
- Hiring violations
- Discipline
- Layoffs
More than 80% of the complaints have alleged either unwarranted discharge or failure to provide reasonable accommodations. The ADA was intended to prevent these types of discrimination against people with disabilities. However, the statutes impact on employment practices has not been systematically evaluated, and complaints based on soft diagnoses, such as back conditions and mental health problems, continue to be variable.
Legal issues
Unlike public and private disability programs, which generally are insurance plans, the ADA is a civil rights statute. As such, the federal courts have generally facilitated the pursuit of ADA claims by people who have claimed or are receiving benefits under SSDI, workers compensation, or private LTD plans. However, the courts have not considered the most common problems encountered in pain management environments (e.g., nonspecific low-back pain, pain in the extremities, headaches, and various repetitive strain injuries) to constitute permanent disabilities that substantially limit a claimants ability to work (Goldstein, Lutner, & Midgett, 1998).
The courts have not accepted the concept of chronic pain syndrome or similar diagnostic designations. Such concepts also have been repeatedly eschewed in the professional literature (e.g., Teasell & Mersky, 1997), by the Institute of Medicine relative to the SSDI program (Osterweiss, Kleinman, & Mechanic, 1987), and by professional groups such as the IASP (Mersky & Bogduk, 1994). Most pain syndromes, especially nonspecific back problems and repetitive strain injuries, have been viewed as temporary disorders and not as qualifying sources of permanent disability. This view is similar to the recommendations in IASPs now-controversial Back Pain in the Workplace report (Fordyce, 1995). As of this writing, however, the Supreme Court had been considering two cases in which mitigating measures or appropriate management of chronic conditions may affect a claimant's ADA protections (Murphy v. United Parcel Service, 1999; Sutton and Hinton v. United Airlines, 1999).
Relation to pain
Pain practitioners may want to consider at least three important elements via the ADA: the evaluation of disability, the qualifying of a patient, and the provision of workplace accommodations. The evaluation or certification of disability for a chronic pain patient under the ADA is an uncertain enterprise at best. To assert that a pain patient suffers from a permanent condition that meets the statutory definition is extraordinarily difficult. Chronic clinical pain is, of course, not directly measurable; and its causal effect on behavior, as opposed to the reverse, is generally impossible to assess. What is required is a finding that the clinical condition itself substantially limits a major life activity. The EEOC and the courts generally have not permitted this for diagnoses in which the principal or only finding is pain (a factor that may differentiate the ADA from various insurance or entitlement programs under which practitioners perform disability evaluations).
Most physicians are not in the best position to determine whether a patient is a qualified individual with a disability because he or she is found to be able to perform the essential functions of a job. This type of evaluation requires considerable familiarity with the physical, cognitive, and behavioral parameters of a particular job. With given impairments documented by medical evaluation, such assessments are best performed by occupational and vocational experts in consultation with the employer.
A prescription for reasonable accommodations usually cannot be performed on a medical basis. For most chronic pain patients, the relationship between pain, impairment, and functional capacities cannot be evaluated objectively, because the roles of effort, incentives, and various psychological factors cannot be adequately taken into consideration. When medical restrictions (e.g., rest periods, lifting restrictions, work tasks) are promulgated, defensive attitudes on the employers part are often reinforced, and the certification of disability may itself exacerbate the suffering and dysfunction of the claimant (Loeser & Sullivan, 1995). It is usually more productive for the practitioner to generate medical reports delineating objective medical impairments (or the lack thereof) and to ensure referral to the appropriate disability management specialists.
Generally, practitioners are not able to facilitate patients return to work through disability evaluations and accommodation recommendations. Employers are most likely to accommodate their valued employees (with or without ADA protections) whether or not they suffer from pain problems, and the physicians role in this process is usually maximized by facilitating communication rather than delineating parameters for work.
Employer concerns
Most reasonable employers accommodate valued employees without much fanfare. Cost is rarely a factor in accommodating workers with disabilities; 80% of all accommodations costs employers less than $500 (Job Accommodation Network, 1999), and most larger employers view the accommodation process positively. When a current or prospective employee files an EEOC complaint or otherwise seeks protection under the ADA, a breakdown of employee-employer communications may be assumed.
Employers sometimes see ADA claims as disgruntled employees attempts to legitimize LTD or workers compensation claims, or as a means to modify their jobs. Protections sought under the ADA are often viewed as medical leverage used by employees to reengineer job assignments, tasks, hours, or relationships that cause them distress. This has been a typical perception of employers regarding claims made under psychiatric diagnoses, but back disorders and other musculoskeletal pain complaints also have been regularly cited in this regard. Employers have long been concerned about what they term subjective disabilities, and ADA complaints based on back conditions and other chronic pain complaints are certainly consistent with this concern.
Generally, appropriate accommodations emerge from a constructive corporate culture and not as a function of ADA mandates. Such a culture is sensitive to the needs of employees with disabilities and chronic health conditions. It considers such employees in risk management and benefits strategies and incorporates appropriate health and disability management into the line operations of the organization. (For further information on these issues see, for example, Akabas, Gates, and Galvin, 1992, and Barge and Carlson, 1993.)
Summary
The ADA has had an uncertain effect on the successful employment of people with disabilities. Protections are minimal for individuals with chronic pain problems, and in general, appropriate job accommodations and return to work are employer issues not controlled by ADA mandates. Pain practitioners are advised to support this trend; and several good sources of further information are available (e.g., Akabas, Gates, and Galvin, 1992; Barge and Carlson, 1993; Job Accommodation Network, 1999; Postol and Kadue, 1991).
References
Akabas, S.H., Gates, L.B., & Galvin, D. E. (1992). Disability management. New York: American Management Association.
Americans with Disabilities Act. Pub. L. 101-336, 42 U.S.C. ¤ 12101-12213 (1990).
Barge, B.N., & Carlson, J.G. (1993). The executives guide to controlling health care and disability costs. New York: Wiley.
Equal Employment Opportunity Commission, U.S. Department of Labor (1999). Unpublished data. Available at http://www.eeoc.gov/.
Fordyce, W.E. (Ed.). (1995). Back pain in the workplace: Management of disability in nonspecific conditions. Seattle: IASP Press.
Goldstein, L.A., Lutner, R.E., & Midgett, J.T. (1999). ADA update: What are the courts debating? Journal of Workers Compensation, 8(1), 19-26.
Job Accommodation Network. (1999). Available at http://janweb.icdi.wvu.edu/.
LaPlante, M. (1997). The context of employment statistics and disability. Unpublished, Disability Statistics Center, University of California, San Francisco. Available at http://dsc.ucsf.edu/reps/forum2/present.html.
Loeser, J.D., & Sullivan, M. (1995). Disability in the chronic low back pain patient may be iatrogenic. Pain Forum, 4, 114-121.
Merskey, H., & Bogduk, N. (Eds.). (1994). Classification of chronic pain: Descriptions of chronic pain syndromes and definitions of pain terms (2nd ed.). Seattle: IASP Press.
Murphy v. United Parcel Service (1999). U.S. Supreme Court, 1998-1999 session, No. 97-1992 (Murphy v. United Parcel Service, 141 F. 3d 1185 [March 11, 1998])
Osterweis, M., Kleinman, A., & Mechanic, D. (Eds.). (1987). Pain and disability: Clinical, behavioral, and public policy perspectives. Washington, DC: National Academy Press.
Postol, L.P., & Kadue, D.D. (1991). An employers guide to the Americans with Disabilities Act: From job qualifications to reasonable accommodations. The John Marshall Law Review, 24(4), 693-729.
Sutton and Hinton v. United Airlines (1999). U.S. Supreme Court, 1998-1999 session, No. 97-1943 (Sutton v. United Airlines, 130 F.3d 893 [10th Cir., Colo., November 26, 1997]).
Teasell, R.W., & Mersky, H. (1997). Chronic pain disability in the workplace. Pain Forum, 6, 228-238.
New York Public Health Law, Article 33, Title I; IV-VI.
New York State Task Force on Life and the Law. (1994). When death is sought: Assisted suicide and euthanasia in the medical context. New York: Author.
Weintraub, M., Singh, S., Byrne, L., Maharaj, K., & Guttmacher, L. (1991). Consequences of the 1989 New York State triplicate benzodiazepine prescription regulations. Journal of the American Medical Association, 266, 2392-2397.
Corey D. Fox is a former senior consultant with the Washington Business Group on Health and Pain Center director. He is currently a principal with Health Care Consulting Associates in Hartford, CT.