Healthcare Workplace Update - Labor and Employment Laws and Developments in Healthcare Industry

A resolution adopted by the Nurse Alliance Leadership Council of SEIU Healthcare opposing mandatory flu vaccine and masking policies may add another challenge to healthcare employers seeking to implement such requirements.  Other unions representing healthcare workers have taken similar positions.  This opposition from labor unions is at odds with the efforts of regulators in many states to increase the percentage of healthcare workers who receive the flu vaccine.  For example, in Massachusetts, the Department of Public Health set a 90% flu vaccination coverage rate as the target for acute care hospitals during the 2012-2013 flu season. 

The SEIU has also filed a lawsuit in federal court challenging the state of Rhode Island’s requirement that healthcare workers be vaccinated.  (While many states require hospitals to offer flu vaccines to their employees, only Rhode Island requires that healthcare workers be vaccinated.) 

Mandatory flu vaccination and masking programs have also been the subject of recent litigation regarding religious accommodations and employer bargaining obligations under the National Labor Relations Act.  In addition, the EEOC has recently weighed in on employers' rights to make reasonable inquiries about an employee's religious beliefs when the employee objects to the vaccination on religious grounds.  These programs can also raise accommodation issues under state and federal disability discrimination laws.  The SEIU’s opposition to mandatory flu vaccination and masking programs for healthcare workers is one more issue for employers to address when developing these programs. 

In one of the last decisions of 2010, a Minnesota federal judge issued an opinion that flipped on its head the statutory time limitations imposed upon an individual’s right to sue under the Minnesota Human Rights Act (“MHRA”), greatly eroding an employer’s ability to determine predict when the threat of litigation is over.  The MHRA prohibits unlawful discrimination in employment and, like many state anti-discrimination laws, imposes time limitations as to when an aggrieved individual can commence litigation.  A claimant has the choice of filing a charge of discrimination or commencing litigation within one year of the alleged unlawful employment action.  If an individual chooses to file a charge, with either the Minnesota Department of Human Rights (“MDHR”) or the federal Equal Employment Opportunity Commission (“EEOC”), he or she must obtain a right to sue notice prior to commencing a civil lawsuit.  In cases where the individual files a charge, but decides to withdraw the charge and pursue litigation, the MHRA mandates: “the charging party shall notify the commissioner of an intention to bring a civil action, which shall be commenced within 90 days of giving the notice.”  Minn. Stat. § 363A.33.  Until recently, courts have interpreted this provision to mean the individual must commence a civil action within 90 days after notifying the commission his or her intent to sue.  This interpretation may no longer be applicable.

On December 23, 2010, in Beliveau v. The Saint Paul Area Council of Churches, 2010 U.S. Dist. LEXIS 135902 (D. Minn. Dec. 23, 2010), United States District Court Judge Donovan Frank, contrary to the direct language of the MHRA and court decisions interpreting the MHRA’s time limitation provision, ruled that the 90 day limitation did not begin to run until the individual received notice from the MDHR acknowledging the request of dismissal.  This interpretation provided plaintiff in Beliveau additional time to commence the civil action against her former employer.  The plaintiff in Beliveau filed a civil lawsuit 112 days after notifying the MDHR of her intent to sue, 89 days after she claimed to have received notice from the MDHR dismissing her action.  The debate as to when notice was received arises often under statutes subject to jurisdiction of the Equal Employment Opportunity Commission, which require filing of suit within 90 days after receipt of notice of dismissal by the agency. 

Based on what appeared to be an untimely filing of the complaint, defendant filed a motion to dismiss the MHRA claims.   Judge Frank denied the motion and found plaintiff’s letter to the MDHR requesting a dismissal did not trigger the 90 day time limitation.  Instead, Judge Frank held the 90 day time limitation started when the plaintiff received notice from the MDHR acknowledging her intent to file a lawsuit and dismissing the charge. 

The Beliveau decision erodes an employer’s ability to determine when a threat of litigation may be over (and, thus, for example, to release a litigation hold of electronically stored data).  Under the Beliveau decision, there is no way for an employer to predict with certainty when a charging party actually received notice of dismissal from the MDHR. It is not uncommon, despite the MDHR’s best efforts, for the department to issue a right to sue notice months after an individual’s request for dismissal.

Thanks to Nora Kaitfors for this submission.

In Clark v. Chickasaw County, Mississippi, d/b/a Shearer-Richardson Memorial Nursing Home,[1] a full-time Certified Nurses Assistant (“CNA”) alleged discrimination on the basis of her race (Black) and retaliation for having made complaints of discrimination.  Ms. Clark complained to the Administrator of the Nursing Home regarding what she believed to be discriminatory practices by her supervisor against African-American staff.  Soon thereafter, Ms. Clark was demoted to part-time employment and later was discharged.  

A.                         The Administrator Failed To Investigate The Alleged Discrimination.

Although the Nursing Home articulated a legitimate and non-discriminatory basis (i.e. excessive absenteeism and tardiness) for Ms. Clark’s demotion, the District Court denied the Nursing Home’s motion for summary judgment.  It did so, in part, because a coworker purportedly told Ms. Clark that her Supervisor, “don’t like nobody black” and therefore did not like Ms. Clark.  When confronted by Ms. Clark, the supervisor purportedly admitted to having made the statement.  On another occasion, the supervisor allegedly said “I know how your kind of people are”, which Ms. Clark perceived to mean that all African Americans are “troublemakers.”  Further, it was alleged that similarly situated Caucasian coworkers were late multiple times without discipline or demotion and that although Plaintiff complained to the Nursing Home’s Administrator regarding the alleged discrimination, remedial action was not taken.

B.                        Plaintiff Was Demoted Within A Week Of Her Complaint Of Discrimination.

In evaluating Ms. Clark’s retaliation claim, the District Court noted that Ms. Clark’s causal connection between the complaint of discrimination and demotion was the temporal proximity of the two events – one week.  Despite the Nursing Homes’ seemingly non-discriminatory basis for Ms. Clark’s demotion, the District Court concluded “a reasonable juror could conclude Plaintiff was retaliated against for complaining about any alleged discrimination” because the demotion occurred one week after her complaint.  

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This decision is yet another reminder to employers and their carriers that possibly discriminatory conduct is costly.  Comprehensive and accessible anti-harassment policies and regular employee anti-harassment and discrimination prevention training are as fundamentally necessary as ever.   It is critical that complaints of discrimination be addressed properly before litigation commences.   Thereafter, once a complaint of discrimination is made, employers must tread carefully before taking adverse employment action.   While independent circumstances may require discipline or discharge shortly after a complaint is made, the basis for the adverse employment action must be supported by demonstrable evidence and must be consistent with prior decisions.

[1] No: 1:09CV192-SA-JAD (N. D. Miss.  September 16, 2010).