Rheumatologist Ephraim Engleman practiced medicine until he died at age 104 in 2015. Although Dr. Engleman’s story is atypical, as our colleagues who attended the American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute reported, and the Association of American Medicine Medical College’s November 2017 State Physician Workforce Data Report confirms, an increasing number of physicians are choosing to work past traditional retirement age. Today, nearly one-third of all physicians in the United States are over the age of 60.

While senior physicians can be an invaluable resource to the medical community, this demographic shift poses a number of challenges for health systems and hospitals, especially as medical practice acquisition and physician employment remains strong. One such challenge is ensuring late age physicians remain mentally and physically capable of providing safe, up-to-date care. To address this issue, a growing number of health systems and hospitals have adopted policies requiring older physicians to undergo cognitive and physical testing. Also, the American Medical Association’s Council on Medical Education is working on developing standards for age-based evaluation.

Although many healthcare employers are exploring late age testing as one means to ensure quality care, employers must be careful not to run afoul of the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and related state laws when implementing this testing. There is uncertainty here because courts have yet to weigh in on their application to physician age-based testing policies.

The ADEA restricts an employer’s ability to make age-related employment decisions unless the employer can establish that age is a “bona fide occupational qualification” (BFOQ). This generally means the employer must show there exists a trait that precludes safe and efficient job performance that cannot be ascertained by means other than knowing the employee’s age and that it is appropriate to treat all employees of a certain age the same because it is “impossible or highly impractical” to deal with older employees on an individualized basis.

At first blush, it may appear that a blanket late age physician policy would easily pass BFOQ scrutiny. After all, patient safety is at stake. However, rulings by courts examining age-based testing policies in other professions create some doubt as to how late age physician testing will fare under judicial review. For example, in the airline industry, courts have found mandatory retirement age policies pass BFOQ muster as to pilots, but not flight attendants; and in another case, a court found the New York City Transit Authority’s policy of requiring certain individuals over the age of 40 to have an EKG did not satisfy the requirements for a BFOQ.

Applying the reasoning from these and other decisions regarding BFOQ, a court may find that because physicians’ duties vary widely by practice area, a per se physician testing policy is discriminatory. However, employers may have a stronger argument if they apply late age testing to a subset of physicians, i.e., to neurosurgeons versus a family medicine practitioners.

While the ADEA presents certain challenges, employers concerned about the competence of specific physicians (regardless of age) are not without recourse under the ADA. For example, employers may make disability-related inquiries or require that an employee undergo a medical examination when the employer has a reasonable belief that an employee cannot perform the essential functions of the job or poses a direct threat due to a medical condition.

Of course, this is not the end of the inquiry because an employer must remember that if it learns a physician has a disability, in most circumstances, there will be a subsequent obligation to engage in the interactive process with the physician to determine whether there is a reasonable accommodation that will allow the physician to perform the essential functions of his or her job. Towards these ends, stay tuned for a future post where we will examine special considerations to keep in mind when engaging in the interactive process with licensed healthcare professionals.