Rick Carlton Mar. 30, 2016, 1:13pm


CINCINNATI (Legal Newsline) - A recent unpublished opinion from the U.S. Court of Appeals for the Sixth Circuit put the Americans with Disabilities Act (ADA) front-and-center in a fight between commercial hospital operators and some health care professionals.

The plaintiffs in Lopreato v. Select Specialty Hosp. are two nurses who had been previously been found guilty of drug theft-related offenses and subsequently terminated, even though they had successfully completed various rehab programs, been re-certified and ultimately returned to work based on restricted licensure.

The defendant had purchased the hospital but refused to hire the two nurses.

According to attorney Jonathan M. Crotty, of Parker Poe in Charlotte N.C., says the ruling could be applied to employers outside of the health care industry. 

“Conceivably, the decision could apply to other professions... especially those where state licensure is required, i.e., lawyers, engineers, etc.,” he said.

Crotty added that rules and court decisions allow employers to exclude from employment disabled persons who do not hold the license required for the position. But in the Lopreato case, in which the two nurses had obtained restricted licenses, the question was not whether the ADA allows employers to reject persons with restricted licenses.

"Instead, it had more to do with the way the plaintiffs approached the claim,” Crotty said.

“They only pled disparate treatment. If the employer shows that it consistently applied a policy without regard to disability, the excluded employees were not subject to disparate treatment."

The Sixth Circuit agreed, citing a 2003 U.S. Supreme Court ruling that held a consistently applied, neutral employment policy serves as a legitimate non-discriminatory business reason for adverse decisions, Crotty says.

But does the ruling support suggestions that hospitals are becoming more aggressive in terms of acting on various drug-based hiring policies, and in turn, will these decisions ultimately lead to further litigation?

“An absolute ban on hiring persons with restricted licenses invites this kind of litigation,” Crotty said.

“(However) we generally advise clients to make case-by-case hiring decisions instead of applying a blanket policy, looking at the reasons the restriction was applied, and the applicant’s conduct after the restriction was applied."

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