Many hospitals and healthcare facilities are federal contractors. Jackson Lewis regularly provides specialized assistance in developing and implementing affirmative action plans (AAPs). Some of the specific services we offer include:

  • Identifying pertinent labor market areas and analyzing census-related statistical data
  • Providing sample plan texts, notices, letters and policy statements
  • Preparing utilization and availability analyses
  • Conducting impact ratio and compensation analyses

To help covered employers understand their affirmative action obligations and the procedure for plan development, we train management so they can understand the company’s obligations and their role in affirmative action. We defend clients against the imposition of citations and allegations of discrimination in connection with audits by the OFCCP and in related litigation brought on the OFCCP’s behalf by the Solicitor’s office of the U.S. Department of Labor.

We also prepare AAPs for, and defend against, audits by state and local affirmative action agencies. To identify and resolve potential adverse impacts and compensation disparity discrimination liability, we perform highly-specialized vulnerability audits. For federal contractors and non-federal contractors alike, we advise on implementing lawful diversity initiatives and voluntary AAPs, set-aside, and vendor and franchisee preference programs; counsel on affirmative action coverage issues; and conduct preventive analyses during downsizing.

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.

As #MeToo and #TimesUp initiatives sweep the nation, the healthcare industry should pay attention.

Recent nationwide media attention on sexual harassment in healthcare, coupled with stressful work environments, means healthcare employers have their share of workplace issues. However, healthcare employers have a unique opportunity to make meaningful culture change happen now – both in the context of sexual harassment and beyond. So what can employers do?

  • Use this national dialogue to make your company the employer of choice. Engage leadership in a discussion about how and why your organization can benefit from this movement. If there is ever a time to demand professionalism in all aspects of the workplace, from the operating room to caregiver interactions, it is now.
  • Get out into the field. Cascade down the message that your organization is focused on a renewed culture.
  • Do not limit #MeToo discussions to employee-employee interactions. Broaden the discussion to include harassment between patients and employees and general workplace culture.
  • Use the #MeToo movement to drive home basic respect and courtesy in the workplace. If you raise your voice, you lose the battle. If you raise your voice or otherwise behave poorly and someone has it on tape, you may lose your job.
  • Lead from the top. Create an environment where employees know that if they have concerns, those concerns will be addressed in a respectful and thorough manner. Do not brush concerns under the rug. Be a leader in proactive culture setting.
  • Use this movement to enhance the patient experience. Taking these steps to engage your workforce and train across all levels will enhance the patient experience.
  • Use this movement to enhance the manager’s experience. Strong managers are approachable, patient, and good communicators. Encourage effective, early performance management so managers free up their time to build a culture of good performers.
  • Retaining the “best of the best” workforce is critical to patient care services and the ability to compete in an industry full of change. Top providers, clinicians, nurses, and researchers demand a positive workplace environment.
  • Provide physicians with strong management tools. Unlike other industries, healthcare employers often face non-traditional supervisory issues where physicians and other practitioners do not consider themselves a “supervisor” but, when it comes to harassment in the workplace, they may be viewed that way under the law.

While the laws regarding workplace harassment have not changed, the sheer number of those who speak out, the volume with which they do it, and the audience they reach is changed forever. Get ahead of this movement.

To learn more about the firm’s healthcare industry team and specifics about how we can help you address the speak out evolution or work towards cultural change, including our Engage MD™ model aimed at revamping physician management practices, please contact your Jackson Lewis attorney.

The American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute in New Orleans focused on the legal challenges faced by physicians and hospitals. Here are the Jackson Lewis Healthcare Industry Team’s “Top 7” takeaways from the attorneys who attended the conference:

  1. Healthcare and labor & employment law are hot. According to Law360, Labor & Employment, Data Privacy & Cybersecurity, and Health Care are three of the top four hottest practice areas for 2018. For the first time in history, healthcare has surpassed manufacturing and retail to become the largest source of jobs in the U.S.
  2. Hospital and health care system transactions and partnerships are on the rise. The U.S. Department of Health & Human Services’ Agency for Healthcare Research and Quality reports at least 69.7 percent of U.S. hospitals are part of health care systems. Consolidations continue to draw great scrutiny from the Federal Trade Commission.
  3. Qui tam cases are on the rise and companies are starting to use the False Claims Act to gain competitive edge. According to the Department of Justice, $2.4 billion of the $3.7 billion in settlements and judgments it recovered from False Claims Act cases in fiscal year 2017 involved the health care industry, including drug companies, hospitals, pharmacies, laboratories, and physicians. This is the eighth consecutive year that the Department’s civil health care fraud settlements and judgments have exceeded $2 billion. In at least one recent lawsuit, the relator was a competitor medical supply manufacture.
  4. The use of Advanced Practitioner Professionals to supplement direct physician involvement is on the rise in hospital and ambulatory settings. This has created legal and ethical issues, particularly for hospitals and health care facilities that must comply with the laws of multiple states.
  5. HIPAA compliance and enforcement is getting more expensive, but now healthcare providers also have to worry about attacks on internet-connected devices. Ransomware attacks on healthcare providers are on the rise. As a result, the Food & Drug Administration has issued guidance and webinars to address the management of cybersecurity in medical devices.
  6. The number of practicing physicians older than 55 is increasing. Some hospitals require doctors over a certain age to undergo periodic physical and cognitive exams, which can lead to age and disability discrimination claims. These exams address only some of the issues presented by the aging physician population. For example, an 84-year-old New Hampshire physician recently lost her license to practice medicine because she did not know how to use a computer and kept handwritten patient records instead.
  7. The law is catching up with telemedicine. According to the Center for Connected Health Policy, in the 2017 legislative session, 44 states introduced more than 200 telehealth-related pieces of legislation. No two states are alike in how telehealth is defined and regulated, which has created a confusing environment for Medicaid reimbursement, licensing and prescribing, among other issues.

Nurses had no right to union representation in their hospital employer’s peer review committee proceedings, the Court of Appeals for the District of Columbia Circuit has ruled. Midwest Division – MMC, LLC, dba Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017). The Court, however, found the hospital violated the National Labor Relations Act by refusing to provide the union information it requested about the peer review committee and by maintaining an overbroad confidentiality rule.

Menorah Medical Center maintains a peer review committee consistent with Kansas law. The committee investigated two nurses for substandard conduct. The nurses’ union filed an unfair labor practice charge with the National Labor Relations Board about this investigation. It alleged Menorah violated the NLRA by refusing to allow the nurses to have union representation at the committee’s hearings; refusing to provide information the union requested about (i) the structure and functions of the peer review committee and its members, (ii) allegations against nurses investigated by the committee (and the sources of those allegations), and (iii) any discipline issued by the committee; and maintaining an overly broad confidentiality rule.

The NLRB upheld an administrative law judge’s decision finding the conduct alleged by the union violated the NLRA.

The appeals court rejected the NLRB’s finding that the nurses had a right to union representation at the peer review committee hearings. The Court explained that under the U.S. Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), an employee’s rights under the NLRA are infringed when an employer compels him to appear at an investigatory interview the employee reasonably believes might result in disciplinary action, but denies him union representation. Conversely, absent compulsory attendance, the right to union representation does not arise. Here, the nurses received letters advising them the peer review process “afforded an opportunity” to appear before the committee “if you choose.” The letters also invited them to “submit a written response…if you wish in lieu of an appearance.” Accordingly, the Court ruled the nurses were not compelled to attend a hearing and, therefore, had no Weingarten right to union representation.

The Court next ruled the union was entitled to the information it requested. Menorah argued its confidentiality interests based upon Kansas peer review statutes justified its refusal to provide the information. The Court found the state law privilege was not so broad as to attach to “any document that may incidentally come into committees’ possession.” The requested information was relevant and the union’s interest in the requested information prevailed over Menorah’s asserted confidentiality interests, the Court ruled.

Finally, the Court agreed with the NLRB that Menorah’s confidentiality policy was overbroad because employees would reasonably understand the rule’s prohibition on disclosure of reportable incidents as barring discussion of events underlying peer review investigations. Therefore, the rule was unlawful because these underlying events also could be the subject of grievances under the collective bargaining agreement, making such discussion protected by the NLRA.

In a partial concurrence and dissent, one judge on the three-judge panel questioned whether Weingarten rights apply in peer review interviews, because they are part of the state’s regulatory apparatus, rather than the employer’s disciplinary process. This judge also would have vacated the NLRB’s order to the extent it ruled the union was entitled to all of the peer review information it requested and would have remanded the case to the NLRB to properly re-balance Menorah’s confidentiality interest against the union’s asserted need for the information.

Hospitals should review their peer review policies and consider appropriate revisions to address the Court’s analysis of the scope of Weingarten rights and the duty to furnish information to unions.

The U.S. Department of Health and Human Services had issued guidance on ransomware attack prevention and recovery from a healthcare sector perspective in July 2016. The importance of these measures was highlighted by the recent worldwide ransomware, “WannaCry,” attack that caused major disruption to the United Kingdom’s National Health Service and cancellation of operations. Learn more about that ransomware attack on our Workplace Privacy Blog.

For more information on preventing such attacks, click here to read our article, “Ransomware Attacks: Prevention and Preparedness.”

On June 2, 2016, Connecticut Governor Dannel Malloy signed Public Act 16-95, establishing significant new restrictions on physician non-compete agreements in Connecticut.

Under the statute, an existing physician covenant not to compete is valid and enforceable only if it is:

  1. necessary to protect a legitimate business interest;
  2. reasonably limited in time, geographic scope, and practice restrictions as needed to protect that interest; and
  3. otherwise consistent with the law and public policy.

The statute also states that the party seeking to enforce a physician covenant not to compete bears the burden of proof at any proceeding.

While these factors and burden of proof are consistent with current Connecticut common law as to non-compete agreements in general, the remainder of the new statute is not.

For covenants not to compete that are entered into, amended, or renewed on or after July 1, 2016, the statute prohibits restricting a physician’s competitive activities (i) for longer than 1 year and (ii) beyond 15 miles from the primary site where the physician practices (defined as “the office, facility or location where a majority of the revenue derived from such physician’s services is generated, or any other office, facility or location where such physician practices and mutually agreed to by the parties and identified in the covenant not to compete.”).

Additionally, a covenant not to compete entered into, amended, or renewed on or after July 1, 2016 must be signed by the physician and is not enforceable against a physician if (i) the employment agreement at issue was not made in anticipation of, or as part of, a partnership or ownership agreement and the agreement expires and is not renewed, unless, prior to the expiration, the employer makes a bona fide offer to renew the contract on the same or similar terms and conditions, or (ii) the employer terminates the employment or contractual relationship without cause.

The statute provides that if a covenant is rendered void and unenforceable under the statute, the remaining provisions of the contract remain in full force and effect, including any provisions requiring the payment of damages for injuries suffered due to the contract’s termination.

Until Connecticut courts have an opportunity to interpret the 15-mile rule, new or amended physician non-compete agreements should refer to the 15-mile range, rather than listing towns that would fall within that range.  If any part of a listed town falls outside of the 15-mile range, a court could find the entire restriction to be unenforceable.

Public Act 16-95 is silent as to whether courts are allowed to apply the “blue pencil rule” in determining the enforceability of post-July 2016 physician non-compete agreements.  The “blue pencil rule” would normally permit a judge to strike a geographically improper town from a list, while enforcing a restriction within the remaining listed towns.

A Boston hospital reasonably accommodated an employee’s religious objections to its influenza vaccination program by offering alternatives, but exempting the employee from the vaccination requirement would impose an undue hardship on the hospital because of the risk of infection to patients, a federal court in Massachusetts has concluded, granting the hospital’s motion for summary judgment in an employee’s religious discrimination suit. Leontine K. Robinson v. Children’s Hospital Boston, C.A. No. 14-10263-DJC (D. Mass. Apr. 5, 2016).

In July 2011, Children’s Hospital Boston adopted a policy requiring anyone affiliated with the Hospital who accesses patient-care areas to be vaccinated against the influenza virus by December 1, 2011. The only persons exempt from vaccination were those for whom the vaccine posed a serious health risk. While it did not exempt people who objected to the vaccination on religious grounds, it accommodated them by allowing them to receive a pork-free (gelatin-free) vaccine.

Leontine Robinson, a Muslim, was an administrative associate. In this position, Robinson interacted with patients and their families as they arrived in the emergency department. Robinson objected to the vaccine on religious grounds, because it contained gelatin made from pork, which she said her religion forbade. The Hospital offered Robinson the pork-free vaccine, also telling her that if she found another position where she would not interact with patients, she would not be required to be vaccinated. In November 2011, Robinson also told the Hospital she believed many vaccines were contaminated and she was not comfortable receiving the influenza vaccine. On the December 1 vaccination deadline, Robinson informed the Hospital she had an allergic reaction to the influenza vaccine when she received it in 2007. The Hospital granted Robinson a temporary medical exemption, but ultimately concluded her medical history did not qualify her for a medical exemption.

The Hospital granted Robinson’s request to use earned time off while looking for an alternative position. When Robinson still was unable to find another position after an additional two-week leave, the Hospital terminated her employment, but treated the termination as a voluntary resignation, leaving her eligible to apply for open positions at the Hospital in the future. Robinson filed suit in federal district court alleging that her termination constituted unlawful religious discrimination under federal law (Title VII of the Civil Rights Act of 1964) and Massachusetts law. After filing suit, Robinson testified in her deposition that in addition to her concerns about the vaccine containing pork or otherwise being contaminated, she learned in November 2011 that her religion had a moratorium on all vaccinations.

The court granted the Hospital’s motion for summary judgment as to both the federal and state law claims. Assuming for purposes of deciding the motion that Robinson refused to be vaccinated because of her sincerely held religious beliefs, the court found the Hospital met its obligation to reasonably accommodate Robinson’s religious beliefs by allowing her to seek a medical exemption, providing her reemployment resources, granting her time to secure new employment, and preserving her ability to return to the Hospital by classifying her termination as a voluntary resignation. The court also agreed with the Hospital’s alternative argument that it was entitled to summary judgment because granting Robinson’s request would have increased the risk of transmitting influenza to its already vulnerable patient population, creating an undue hardship for the Hospital. Robinson has appealed the decision.

This case highlights the importance of working proactively with employees when implementing an influenza vaccination program. Religious objections to influenza vaccination programs continue to be the subject of legal challenges around the country. In addition, the EEOC has announced that it filed suit against a hospital alleging the hospital violated federal law when it failed to accommodate employees’ religious beliefs when implementing its influenza vaccination program.

A respiratory therapist can proceed with her civil rights claims because questions remain about whether her hospital employer intended to honor a patient’s request that he not be treated by black employees, a federal court has ruled. Caprice McCrary v. Oakwood Healthcare, Inc., C.A. No. 14-14053 (E.D. Mich. Mar. 16, 2016).

Caprice McCrary, an African-American, works as a respiratory therapist at Oakwood Hospital. A patient treated in the Hospital’s emergency department and subsequently admitted informed a nurse-in-training in the emergency department that he did not want any black people taking care of him. The nurse-in-training made a note in the patient’s record that he stated, “I do not want any black people taking care of me at all.” When McCrary later went to patient’s room to provide him a breathing treatment, the patient twice refused to allow her to treat him, once saying to her that she must not have read his chart.

McCrary complained to the Hospital about the patient’s request. The Hospital apologized for how the request was handled and informed the patient that it would not honor the request. The Hospital also told McCrary she could treat the patient, could have someone accompany her when she did so if she was afraid of him, and could have a different assignment if that was her preference. When McCrary went to treat the patient, she found that he was no longer on the unit where she was assigned.

McCrary sued the Hospital, alleging that by allowing the assignment of its employees to care for the patient to be based on race, the Hospital violated 42 U.S.C. § 1981, which prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private actors, and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), which prohibits discrimination with respect to employment, compensation, or a term, condition, or privilege of employment. The Hospital filed a motion for summary judgment seeking to dismiss McCrary’s claims.

The court noted some discrepancies in the factual record called for denying summary judgment. First, the Hospital had not identified the charge nurse to whom the nurse-in-training presented the patient’s request, raising a question as to what she was told about how the Hospital would handle the patient’s request. The nurse-in-training did not write in the patient’s record that the request would not be granted, which she testified she believes she would have done if she had been given such an instruction. There also was a question as to the credence a nurse gave to the notation in the patient’s record, since he asked McCrary to find someone else (i.e., a Caucasian respiratory therapist) to treat the patient. Finally, because the record fails to reflect when the patient actually underwent surgery, a question remained as to whether the patient was moved to avoid having McCrary be the respiratory therapist called upon to perform the patient’s needed breathing treatments.

The court denied the Hospital’s motion for summary judgment on all counts, concluding a reasonable jury could find that by recording patients’ race-preference requests in the patients’ record, failing to have a policy for handling race-based requests by patient, and by not training its employees to reject those requests, the Hospital purposefully allowed the assignment of its employees’ duties to be determined by their race.

It is important for employers to note that unlike Title VII of the Civil Rights Act and many state anti-discrimination laws, the state and federal laws at issue in this case do not require a plaintiff to demonstrate that she suffered an adverse employment action. Accordingly, the court rejected the Hospital’s argument that McCrary’s claims should be dismissed because this single patient encounter did not alter her terms and conditions of employment, e.g., she was not disciplined and suffered no loss of pay and no reduction in hours.

This case highlights the importance of training and maintaining clear anti-discrimination policies.

Where a former female employee showed a hospital imposed lesser disciplinary action upon male employees for infractions similar to the one that led to her discharge, her sex discrimination claims can proceed, a federal appeals court has ruled, reversing summary judgment for the hospital. Jackson v. VHS Detroit Receiving Hospital, Inc., No. 15-1802 (6th Cir. Feb. 23, 2016).

Karon Jackson worked as a Mental Health Technician (MHT) in Detroit Receiving Hospital’s Mental Health Crisis Center. In September 2013, Jackson assisted a nurse with a patient discharge. Neither Jackson nor the nurse checked the patient’s wristband as required by hospital policy. The Hospital terminated their employment because the failure to check the patient’s wristband constituted a “major infraction” under the Hospital’s disciplinary policy.

Jackson sued the Hospital in federal district court alleging discrimination on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. The district court granted the Hospital’s motion for summary judgment, but the Sixth Circuit Court of Appeals, in Cincinnati, reversed that decision and remanded the case back to the district court.

The Sixth Circuit found that Jackson had established the male MHTs she claimed were treated differently than she were similarly situated to her. One male MHT, who also was subject to the requirement that he check patients’ wristbands before discharge, had escorted the incorrect patient out of the Crisis Center because he failed to check the patient’s wristband. This failure constituted a major infraction under the Hospital’s discipline policy. Similarly, as a result of his improper search of a patient who was carrying knives, a second male MHT was cited for violation of the same two major infractions for which Jackson was terminated. The Hospital did not terminate the employment of either of these male MHTs. Therefore, the Court found that Jackson established these similarly situated male employees were treated more favorably than she was.

The Court next examined whether Jackson met her burden to demonstrate the Hospital’s stated reason for discharging her was pretext for sex discrimination. The Hospital argued Jackson’s mistake was more egregious than those made by the two male MHTs, and thus warranted the more severe penalty of discharge. The Court disagreed, in part because the Hospital’s argument speculated on the harm that could have resulted from the mistakes by Jackson and the two male MHTs. The Court found Jackson met her burden and a reasonable jury could reject the Hospital’s proffered reasons for the difference in treatment.

While courts often refrain from second-guessing an employer’s decision to discipline or discharge an employee for policy violations, this restraint will not always allow an employer to avoid potential liability. Here, the similarity in circumstances between the policy violations was too great to permit summary judgment for the Hospital where there was an apparent disparity in the severity of discipline meted out to male employees, on the one hand, and to the female plaintiff, on the other. This case highlights the importance of consistent application of discipline for similar workplace offenses.