Running Head: RESPONDEAT SUPERIOR

Respondeat Superior Melody France MHA 622: Health Care Ethics and Law Dr. Tamara D. Smith 12 March 2012

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Respondeat superior is a legal doctrine which states that employers have liability for actions undertaken by their employees in the course of doing their duties. This Latin phrase is often translated as let the chief answer, in a reference to the idea that the employer can be made to answer for wrongs committed by employees. A healthcare provider can be held liable for the negligence of others, even though he has not been personally negligent. This is called vicarious liability and it is based on the principle of respondeat superior, let the superior respond for the negligence of agents or employees. Thus, physicians and other providers are responsible for the negligent acts of their nurses, paramedics, x-ray technicians, and other persons in their employ. One ethical consideration surrounds the notion that a person can take on a position or apply for and obtain a job based on free will and rights theory. Under this assumption, the candidate has a right to seek and obtain a position because he is able to perform the duties of the position at this time. The same person may struggle with whether disclosing a condition which may interfere with the candidates work in the future. The candidate may believe that it is better to disclose this, rather than take a chance of being let go in the future, if the condition worsens. A third ethical consideration is a manager may struggle with making a hiring decision, knowing the candidate has the right to suitable employment which is fulfilling to the person and at the same time benefits the organization, at least for the time being. If a manager chooses not to hire the top pick, based on this information, a feeling of unfairness may happen. Ethics plays a very important role during the recruitment of new employees. Law and regulations dictate hiring policies must be ethical. It is importance candidates be selected based on their merits. Applicants should be hired based purely on merits such as knowledge, skills, and ability in accordance to the needs of the organization. If a company provides any special considerations, for example affirmative action, where certain groups are given special considerations, these

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considerations should be well stated in the company's policy statement. In any case, any preferential treatment should be one that is legally allowed. Under the Americans with Disabilities Act (ADA), an employer cannot deny someone suitable employment due to a disability. If the top candidate is not hired, there may be legal recourse, particularly if the candidate is aware of the situation. The employee may later discover an illness is progressing, and may fail to inform his employer, for fear of losing employment. However if an employee is in a position in which life-threatening mistakes can be made or there may be issues of liability, due to such mistakes, the employee may still be held responsible (Showalter,2007). If the person does not hold any professional license, they fall under the liability of the employer. Under common law doctrine of respondeat superior, the employer is liable for the actions of the employee, and so, may be liable if the employee causes injury, when the employees condition leads to injury or accident. The challenge for the employer is to find out pertinent information without asking questions prohibited by ADA. The ADA defines a qualified individual as someone who, with or without reasonable accommodation, can perform the essential functions of a job (ada.gov, 2012). Therefore, the interview process can be fraught with pitfalls for the inexperienced employer. Also, the ADA protects employers from accommodations that will impose an undue hardship on the company, defined as an action or accommodation that is excessively costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. If the cost of an accommodation would impose an undue hardship on the employer, and no outside funding is available, the individual with a disability must be given the option of paying for the portion of the cost that causes the undue hardship or providing the accommodation. Therefore, the employer and the employee should discuss what the employee's needs are and together determine an effective, reasonable accommodation.

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The organization may believe that the costs of health care for this candidate will be too costly and may affect the rates the organization is currently paying. There are financial considerations for time lost from work, when and if the candidate's condition worsens. If others within the community learn that a top candidate has been passed over due to potential health issues, others may follow suit. This could have a negative effect on the community. However, it may also bring the organization that passes over the candidate quite a bit of unwanted or negative publicity, which could affect revenues, when businesses or consumers look elsewhere for products or services. Title I of the ADA of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment (Equal Employment Opportunity Commission, 2010). However, there are some employers who, in spite of the ADA are still non-compliant with the rules. They feel like it would be too much of a bother and too expensive to accommodate the disabled. They might have to add lifts, or ensure the employee's office can accommodate a wheelchair if needed. The first point of contact should be Human Resources for advice and guidance whenever an applicant reveals a potential disability to avoid any legal recourse. The decision cannot be made based on speculation but facts. Potential applicants who are qualified should be hired as long as a hardship is not costly to the company. When healthcare facilities and companies become responsible for employees decisions under respondeat superior, they must take so many things into consideration upon hiring employees. If an employee has medical issues which can cloud judgment, the facility could potentially be held accountable for a persons actions. This becomes an important issue when the employee is responsible for patient care or decisions in a patients care. By the same token,

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if an employee has any physical disabilities which limit their capability to do their job, the accommodations must ensure proper function for the well-being of any patients they employee comes in contact with.

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References Americans with Disabilities Act (ADA). Retrieved from http://www.ada.gov Equal Opportunity Employment Commission. Retrieved from http://www.eeoc.gov Showalter, J. (2007). The Law of Healthcare Administration: Liability of the Healthcare Institution, 5th Edition