OSHA Launches Webpage Addressing Preventing Workplace Violence in Healthcare

The federal Occupational Safety and Health Administration has launched a webpage to provide employers and workers with strategies and resources for preventing workplace violence in healthcare settings.

The development of this webpage follows OSHA’s update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers (see our April 2015 report).

To read more about the information provided on the new OSHA webpage, see this post on the Jackson Lewis OSHA Law Blog.

EEOC Finds Hospital’s Leave Policy Unlawful, But Court Dismisses Nurse’s ADA Claims

A federal court in Texas has dismissed a nurse’s disability discrimination and retaliation claims because she failed to establish she was qualified to perform the duties of her position with or without reasonable accommodation even after the EEOC found the employer’s six-month cap on leaves of absence violated the American with Disabilities Act. Salem v. Houston Methodist Hospital, C.A. No. 4:14-1802 (S.D. Tex. Oct. 30, 2015).

Fatima Salem was a nurse at Houston Methodist Hospital. Salem suffered from various medical and psychological conditions. Because of these conditions, Salem requested and was granted a leave of absence, which lasted for 59 days and was covered by the FMLA. She returned to work, but subsequently took another leave of absence. The Hospital maintained a policy that “[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins.” Salem asked the Hospital to make an exception to this policy when she was unable to return within the six-month limit. The Hospital refused this request and terminated her employment.

Salem filed a charge with the EEOC alleging the termination of her employment violated the ADA. The EEOC found the Hospital’s leave policy violated the ADA “in that it deprives certain employees of a reasonable accommodation, dispenses with respondent’s obligation to engage in an appropriate interactive process and impermissibly relieves [the Hospital] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months.” However, the EEOC was unable to conclude the Hospital violated the ADA when it terminated Salem’s employment. Salem then sued the Hospital in federal district court alleging the Hospital discriminated against her on the basis of disability in terminating her employment, failed to accommodate her disability by not providing her with additional unpaid leave from work, and retaliated against her in violation of federal and Texas state law.

The court granted the Hospital’s motion for summary judgment on all of Salem’s claims. Salem never established she could perform the duties of her position without reasonable accommodation and the court found Salem’s request for additional leave was not a request for a reasonable accommodation under Fifth Circuit authority because she did not provide the Hospital with a date on which she anticipated being able to return to work.

The court noted the Hospital’s “minimal participation” in an interactive process with Salem to determine whether a reasonable accommodation could be made was inappropriate, but that did not alter the outcome because there is no evidence a reasonable accommodation was feasible. The absence of evidence of a feasible reasonable accommodation also required the court to grant the Hospital’s motion for summary judgment on the failure-to-accommodate claim. Salem’s retaliation claim also failed because she could not show the Hospital’s adherence to its six-month leave limit was a pretext for retaliation.

The courts have held under the ADA that indefinite leave is not a reasonable accommodation. However, healthcare employers should note the EEOC’s finding that the Hospital’s leave policy here was unlawful and the court’s remarks on the Hospital’s participation in the interactive process, despite the judgment in favor of Hospital. If Salem had been able to provide a date on which she would have been able to return to work after an extended leave of absence, this case may have come out differently.

Discrimination and Retaliation Claims of Nurse with Night Blindness May Proceed, Federal Court Rules

Denying a nursing home’s motion for summary judgment, a federal court in Tennessee has allowed a nurse who suffered from impaired vision to proceed with her age and disability discrimination claims and a claim for retaliation. Harris v. MatureCare of Standifer Place, LLC d/b/a The Health Center at Standifer Place, C.A. No. 1:14-CV-64 (E.D. Tenn. Aug. 5, 2015).

In 1998, Ruth Harris, then aged 53, was hired by the nursing home to work on the evening shift as a Licensed Practical Nurse. In 2010, because Harris told her supervisor she had difficulty seeing and driving at night, she was moved to the day shift. In November 2012, Harris was moved back to the evening shift over her protests. On January 11, 2013, Harris filed a charge of discrimination with the EEOC. The nursing home terminated her employment on January 15, 2013.

Harris then sued the nursing home in federal district court for violation of Tennessee and federal law by discriminating against her on the basis of her age and disability and retaliating against her for filing a claim with the EEOC. The nursing home moved for summary judgment, which was denied as to all counts.

In her deposition, Harris stated she was told that she was moved back to the second shift because she was older and that “[the facility] needed a younger nurse because the State was coming [to review the facility].” The court found that this evidence, if credited, demonstrated that age was the “but for” cause of the nursing home’s actions, even though the statement was made in connection with moving Harris to the second shift rather than the decision to terminate her employment.

The court also found that Harris presented sufficient evidence that she had night blindness, which prevented her from driving at night, to survive summary judgment on her disability discrimination claim. The nursing home contended that a sharp uptick in problems with Harris’s performance after she returned to the second shift provided a legitimate nondiscriminatory basis for the decision to terminate her employment. Harris disputed several of the disciplinary notices relied upon by the nursing home and pointed to younger employees who were not fired for similar mistakes. The court found this evidence sufficient to create a factual question for the jury as to whether the employer’s proffered reasons for terminating her employment were pretextual.

Finally, the court found the close temporal proximity of the dates on which the termination notice was written, Harris’s counsel faxed the employer a copy of her EEOC charge, and the termination notice was signed by her supervisor, sufficient to create a genuine issue of material fact as to whether the termination of her employment was causally connected to her filing a charge with the EEOC.

The evidence that Harris presented disputing several of the disciplinary notices and pointing to younger employees whose employment was not terminated for similar mistakes was a key factor in the denial of the nursing home’s motion for summary judgment on the age discrimination and retaliation claims. This demonstrates the importance of ensuring supervisors are consistent when issuing discipline to employees.

Department of Health and Human Services Issues Compliance Resource for Governing Boards

The Inspector General of the Department of Health and Human Services (HHS OIG), the American Health Lawyers Association, the Association of Healthcare Internal Auditors and the Health Care Compliance Association have released a joint educational resource to assist governing boards of health care organizations in carrying out their compliance plan oversight obligations.

This new resource touches on many elements found in the HHS OIG’s voluntary compliance program guidance documents for several sectors of the healthcare industry. The HHS OIG suggests that a good first step for a board is to ensure that the organization’s senior management is aware of the U.S. Sentencing Guidelines, the HHS OIG’s compliance program guidance documents, and relevant corporate integrity agreements. The principles in the Sentencing Guidelines are the basis of the HHS OIG compliance program guidance documents.

The HHS OIG continues to recognize that there is no “one size fits all” compliance program for healthcare providers, acknowledging that the design of a compliance program will depend on the size and resources of the organization. It also advises boards to stay abreast of the ever-changing regulatory landscape and operating environment, suggesting that one way to do so is to require updates from staff involved in the organization’s compliance program.

The HHS OIG calls upon organizations to define the interrelationship of the audit, compliance, and legal functions in charters or other organizational documents. As healthcare providers review their compliance programs, they should note the HHS OIG reiterated that an organization’s Compliance Officer should “neither be counsel for the provider, nor be subordinate in function or position to counsel or the legal department, in any manner.” The HHS OIG also suggests that boards should receive regular reports regarding the organization’s risk mitigation and compliance efforts — separately and independently — from key players, including those responsible for audit, compliance, human resources, legal, quality, and information technology.

Finally, the HHS OIG states that “compliance is an enterprise-wide responsibility” and suggests that boards may assess employee performance in promoting and adhering to compliance and use these assessments either to withhold incentives or to provide bonuses based on compliance and quality outcomes. Recent enforcement activity by the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”), an interagency task force coordinating efforts between HHS and the Justice Department, further highlights the importance of promoting a culture of compliance throughout any healthcare organization.

In addition to reviewing their current compliance programs, healthcare employers should consider enhancing compliance training programs for employees at all levels of the organization. Jackson Lewis attorneys are available to advise organizations on developing compliance programs that meet the expectations set forth in the HHS OIG compliance documents.

Hospital Cannot Show Nurses’ Overtime Refusal Would Cause Irreparable Harm, Court Rules No TRO

Denying a hospital’s request to restrain its unionized nurses from refusing overtime assignments after the hospital had announced it would make layoffs, a federal court in Rhode Island concluded the hospital failed to demonstrate that it or its patients would suffer irreparable harm as a result of the nurses’ refusal to work overtime. New England Healthcare Employees Union, District 1199, SEIU v. Women & Infants Hospital, C.A. No. 15-55 S (D. R.I. Mar. 27, 2015).

After Women & Infants Hospital announced layoffs, the union representing its nurses and other employees notified the hospital that it would conduct informational picketing and that nurses would refuse to accept overtime assignments (the parties’ collective bargaining agreement and Rhode Island law prohibit the hospital from mandating overtime except in emergencies). The hospital asked the federal district court for a temporary restraining order requiring the nurses to accept overtime assignments pending arbitration of the parties’ dispute over the layoffs.

To establish the requested “Boys Market” injunction (named after a 1970 Supreme Court decision) in aid of arbitration would be appropriate, the hospital had to demonstrate that (1) the parties’ collective bargaining agreement contains mandatory arbitration procedures; (2) the work stoppage to be enjoined is over an arbitrable grievance; and (3) ordinary principles of equity warrant the injunctive relief, such as a showing of irreparable harm in the absence of injunctive relief. The court found the hospital established the first two conditions, but failed to show that the nurses’ refusal to accept overtime assignments would cause the hospital irreparable harm.

The hospital argued it would have to divert patients to other hospitals. It identified three ways in which it said diverting patients would cause irreparable harm: (1) reputational harm; (2) harm to patients; and (3) lost revenues. The court found the hospital’s evidence as to each type of alleged harm insufficient to warrant injunctive relief.

The court noted that the hospital had diverted patients in the past, including as a result of labor disputes, and that there was no evidence these past diversions caused any reputational harm. The court found the hospital’s evidence of potential harm to diverted patients was speculative and contradictory, in part because the hospital provided no evidence that past diversions had posed a health risk to the diverted patients. Further, the court could not gauge the amount of lost revenue the hospital might suffer because the hospital failed to provide monetary figures for the average reimbursements it received in the units that may be affected by patient diversion. Moreover, the court noted it was not clear the hospital would suffer any financial loss when patients were diverted to other hospitals within the same healthcare network as the hospital.

Significantly, the court also found the hospital’s claim that patient diversion would occur at all was speculative and prevented a finding of irreparable harm at this stage of the litigation because the hospital had alternatives to assigning overtime shifts, such as using per diem and temporary nurses. The court’s analysis in this case illustrates the importance of contingency planning when healthcare employers face potential work stoppages.

Nurse’s Request to Use Cane in Behavioral Health Unit Not a Reasonable Accommodation, Court Rules

A nurse’s request to use a cane while working in a hospital’s behavioral health unit is not a reasonable accommodation under the Americans with Disabilities Act, a federal district court in Florida has ruled. United States Equal Employment Opportunity Commission v. St. Joseph’s Hospital, Inc., No. 8:13-cv-2723-T-30TGW (M.D. Fl. Feb. 18, 2015).

Leokadia Bryk worked as a nurse in St. Joseph’s Hospital’s Behavioral Health Unit. The BHU is an in-patient psychiatric unit for patients who present an imminent danger to themselves or others. Bryk had been using a cane in the BHU since returning to work after hip-replacement surgery in October 2009. In October 2011, Bryk began working under a different supervisor who asked her to get clearance from the Employee Health Department to use the cane while working in the BHU.

Based on the patient population in the BHU, the Hospital informed Bryk that she could not continue working in the BHU with a cane and gave her one month to transfer to another position. When Bryk was not hired for any position for which she applied by the end of the one-month period, the Hospital terminated her employment. The EEOC filed suit on Bryk’s behalf alleging the Hospital violated the ADA when it failed to provide her with a reasonable accommodation. Both parties filed motions for summary judgment.

The court found Bryk’s gait dysfunction due to her hip replacement established she is a disabled person within the meaning of the ADA. The court also found that being able to perform “takedowns and emergency codes” on patients were essential functions of Bryk’s position, even if those situations arose only infrequently or typically were performed by others. Citing federal appeals court precedent, the court found that to prevail, the EEOC must demonstrate that Bryk could perform the essential functions of her job safely while using a cane. Based on evidence that patients could take the cane from her and use it as a weapon, the court concluded, as a matter of law, that Bryk’s request to use a cane in the BHU was not a reasonable accommodation.

The EEOC also argued the Hospital violated the ADA by failing to reassign Bryk to a vacant position. The court found jury issues existed as to whether it would have been a reasonable accommodation to reassign Bryk to two of the three positions for which she had applied. The court found that reassignment to the third position was unreasonable as a matter of law because Bryk applied for it after her employment was terminated.

The court’s recognition that a job function can be essential, even if it is performed only infrequently, and its acknowledgment of the dangers inherent in many health care settings as affecting an employee’s ability to function with certain impairments can be instructive to health care employers facing requests for reasonable accommodations.

Appeals Court Finds No Breach of Settlement Agreement by Hospital Disclosing Nursing Board Report to Prospective Employer of Former Employee

A hospital did not breach its settlement agreement with a former employee when it disclosed to a prospective employer that it reported her to the New Jersey Board of Nursing (the “Nursing Board”), a federal appeals court has ruled.  Debra Weisman, et al. v. New Jersey Dept. of Human Servs., et al., No. 13-4656 (3d Cir. Dec. 2, 2014).

The plaintiff was a charge nurse at Ancora Psychiatric Hospital.  When she attempted to return to work following a leave of absence, the psychiatrist conducting her fitness-for-duty examination would not clear her to return to work.  As a result, Ancora suspended, and later terminated, the plaintiff’s employment.  In accordance with New Jersey law, Ancora reported both the suspension of her privileges and the termination of her employment to the Nursing Board. 

The plaintiff’s union challenged the termination in arbitration.  During the arbitration process, the parties reached a settlement in which the plaintiff agreed to waive all claims arising from her employment with Ancora and, in return, Ancora agreed to designate her departure as one based on a “resignation in good standing.”

A month after resigning from Ancora, the plaintiff was offered a job at another hospital.  In response to a questionnaire from this hospital, Ancora reported that the plaintiff resigned her employment voluntarily and that her job performance met Ancora’s patient care standards.  However, in response to whether Ancora had ever reported the plaintiff to a professional review board, Ancora responded that it had, attaching copies of its letters to the Nursing Board.  The hospital subsequently withdrew its offer of employment.

Blaming Ancora for the withdrawal of the job offer, the plaintiff filed suit in federal court alleging breach of contract and violation of federal statutes.  She also sought equitable relief to address Ancora’s alleged failure to properly implement the provisions of the settlement agreement.  The court granted Ancora’s motion for summary judgment as to all counts.  The plaintiff then appealed to the federal appellate court in Philadelphia.

The Third Circuit found the settlement agreement did not require Ancora to revoke its letters to the Nursing Board or to omit reference to the letters upon any inquiry by a prospective employer.  Ancora’s obligation was simply to record the plaintiff’s separation from employment as a resignation in good standing and to report to any interested future employer that she resigned her employment “in good standing.”  Accordingly, the Third Circuit affirmed the lower court’s judgment for Ancora.

This case highlights the importance of healthcare employers understanding their obligations to report to licensing authorities and, where applicable, the National Practitioner Data Bank, certain disciplinary actions taken against licensed staff.  When resolving claims in these situations it is important that all parties understand those obligations and their effect on any settlement.

Court Allows Retaliation Claim to Proceed Where Reason for Termination was Unclear

An EMT can proceed with his retaliation claims where he presented sufficient evidence to require a trier of fact to determine whether his former employer’s asserted reason for terminating his employment is pretext for unlawful retaliation under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, a federal district court has ruled, denying the employer’s motion for summary judgment.  Verga v. Emergency Ambulance Service, et al., 12-CV-1199 (DRH) (ARL) (E.D. N.Y. Nov. 18, 2014).

The plaintiff, a male EMT employed by the defendant Emergency Ambulance Service (“EAS”), was partnered during one shift with a male paramedic who repeatedly stated that he wanted to have a sexual relationship with the plaintiff and placed his hand on the plaintiff’s thigh near his crotch for approximately 20 seconds.  The plaintiff reported the paramedic’s behavior to EAS at the end of the shift. 

Later, on his Facebook page, the plaintiff threatened bodily harm to the person who “thought today was a joke” without identifying the individual to whom he was referring.  EAS’s Director of Human Resources investigated the plaintiff’s complaint and directed the paramedic to apologize to the plaintiff and to undergo sexual harassment training.  The Director also determined the plaintiff should attend a workplace violence seminar because of the Facebook post and his co-workers’ concerns about his behavior.

The Director prepared a letter requesting the plaintiff’s consent to attend the workplace violence seminar and stating that EAS was dealing with the plaintiff’s complaint.  According to the plaintiff’s affidavit, approximately 10 minutes after signing the letter, he asked the Director to rip it up because he did not agree the matter was being handled appropriately, but said he would attend the seminar.  The plaintiff then left the EAS facility and never returned.  One week later, EAS informed the plaintiff his employment was terminated.

The plaintiff filed suit alleging EAS had unlawfully retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and the New York State Human Rights Law, as well as making a state law claim for unpaid wages. 

EAS moved for summary judgment.  The court noted EAS’s Director of Human Resources stated in his affidavit that EAS terminated the plaintiff because of his demeanor when it attempted to discuss the incident with him, information from his co-workers about his anger issues, the information on the plaintiff’s Facebook page, and the plaintiff’s refusal to attend the seminar.  On the other hand, the plaintiff submitted an affidavit stating he told EAS that while he would not sign the letter he would attend the training.  The court held that the plaintiff’s evidence calls into question EAS’s articulated reason for terminating him, and therefore denied its motion for summary judgment.

This decision highlights the importance of employers carefully articulating the reasons for terminating an employee to reflect accurately their decision making process.

Enterovirus D-68 and Ebola Cases Raise Privacy Concerns for Healthcare Providers and their Workers

The following posting from our colleagues on the Jackson Lewis P.C. website, as part of the Workplace Privacy, Data Management & Security Report, regarding privacy concerns related to Enterovirus and Ebola may be of particular interest to healthcare employers. Click here to be transferred directly to the link.