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. 

Under the Patient Protection and Affordable Care Act of 2010 (PPACA), also known as Obamacare, all nursing facilities and skilled nursing facilities must have a compliance and ethics program that contains certain statutorily-required elements by March 23, 2013. The program must be effective in preventing and detecting criminal, civil, and administrative violations under PPACA and in promoting quality of care.  Please click here to read the full article.

For insights regarding litigation avoidance from our very own blogger, Ana Shields, check out this link on Resource Nation:   http://www.resourcenation.com/blog/email-interview-with-jacksonlewis-com/34965/

The Church Amendment (42 U.S.C. §300a-7(c)) provides that no entity receiving federal funding may discriminate in the employment of any physician or health care personnel because he or she performed or refused to perform a lawful sterilization procedure or abortion.  An Operating Room Nurse filed suit against a New York hospital arguing that the hospital violated her rights under the “Church Amendment” because her job duties required her participation in performing late-term abortions.

The hospital had a written policy allowing employees to register conscientious objections to abortions and other procedures.  As part of the hospital’s hiring process the nurse confirmed her unwillingness to participate in abortions.  She nevertheless later claimed to have been compelled to participate in a late-term abortion.  When the nurse made an official complaint of the incident, she alleged that her supervisors attempted to coerce her to provide written confirmation of her willingness to assist in emergency abortions (even though the hospital’s objection policy lacked an “emergency” exception).

In July 2009, nurse sued the hospital in federal court, alleging violation of rights protected by the Church Amendment.  The District Court granted the hospital’s motion for summary judgment, dismissing the plaintiff’s claims on the ground that the Church Amendment did not create a private right of action. 

Dismissal was affirmed by the Second Circuit Court of Appeals, which held that a private right of action is inferred only when there is “explicit evidence of Congressional intent” to create a private right and a defined private remedy.  Here, the Second Circuit held, there is “no evidence that Congress intended to create a right of action.”  Accordingly, the plaintiff’s claim against the hospital was dismissed.

The lessons are clear for employers.  Written policies should define clearly proscriptions and obligations, as well as the protocol for reporting potential violations.  Moreover, policies should be implemented without exception.