No Weingarten Rights for Nurses in Peer Review Proceeding, Federal Appeals Court Rules

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.

Cybercriminals Often Target Healthcare Providers with Ransomware Attacks

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.”

New California Healthcare Workplace Safety Prevention Regulation Effective April 1, 2017

As previously mentioned, healthcare employers in California must comply with a host of new workplace safety requirements, effective April 1, 2017, on preventing workplace violence. The new requirements include written workplace violence prevention plans, additional recordkeeping, and preventive training, among other things.  To get all the details, click here to read our special report.

New Healthcare Workplace Safety Prevention Laws Take Effect April 1, 2017, in California

Healthcare employers in California should prepare for a host of new workplace safety requirements, starting this weekend. California’s new healthcare workplace safety prevention law takes effect April 1, 2017.  The scope of the regulation affects almost all health care facilities, medical groups, and several other care facilities including senior care centers, nursing homes, and retirement homes.  For more information, click here.

Long-Term Care Facilities: New Rule Imposes Significant Changes, including Bar on Pre-Dispute Arbitration Agreements

Skilled nursing facilities participating in the Medicare program and nursing facilities in the Medicaid program are prohibited from including a mandatory pre-dispute arbitration clause in their contracts with individuals seeking admission to long-term care (LTC) facilities under a final rule from the Centers for Medicare & Medicaid Services (CMS). This prohibition and other significant new or amended regulatory changes will go into effect on November 28, 2016, a mere 55 days after publication in the Federal Register.  To read the full article, written by Albany Principal James Shannon, click here.

New Connecticut Statute Restricts Physician Non-Compete Agreements

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.

Hospital May Fire Employee Who Refused Influenza Vaccination, Federal Court Finds

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.

Respiratory Therapist May Proceed with Civil Rights Claims Based on Patient’s Request That He Not Be Treated by Black Employees

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.

Inconsistent Discipline of Female and Male Mental Health Technicians Bars Summary Judgment for Hospital

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.

Court Finds No FMLA Violation, Disability Discrimination Where Hospital Terminates Nurse with Migraine Who Slept While On Duty

A federal court in Ohio has dismissed Family and Medical Leave Act and disability discrimination claims filed by a nurse who was caught sleeping while on duty and fired.  Lasher v. Medina Hosp., et al., C.A. No. 1:15CV00005 (N.D. Ohio Feb. 5, 2016). The court found the hospital had a legitimate, nondiscriminatory reason for terminating her employment, which she could not establish was pretextual, and that she failed to notify her employer that she needed FMLA leave for the time she was sleeping on duty.

Jodi Lasher worked as a registered nurse in Medina Hospital’s Family Birthing Center. She suffered from chronic migraine headaches. The Hospital maintained a no-fault attendance policy. Lasher was disciplined under that policy in February and June 2014. In the spring of 2014, the Hospital also received complaints that Lasher’s coworkers sometimes were unable to find her on the unit where she worked and that she was inappropriately using the call room during her shift.

Rather than discipline Lasher because of these complaints, Lasher’s supervisor and a member of the Hospital’s Human Resources Department met with her to discuss accommodations for her migraines and the availability of FMLA leave. Lasher informed the Hospital that accommodations were not applicable to her situation, but that she would take intermittent FMLA leave as needed. Lasher was granted all of the FMLA leave she requested, including an occasion when she developed a migraine headache during her scheduled shift.

During a shift in September 2014, Lasher developed a migraine headache while caring for a patient who was in labor. When she experienced dizziness, Lasher went into a vacant room and collapsed onto the bed. A coworker later found her and woke her up. Lasher then went to the emergency room for treatment. The Hospital terminated Lasher’s employment pursuant to a policy that classifies sleeping while on duty as a major infraction that may result in suspension or termination of employment.

Lasher filed suit alleging the Hospital violated the FMLA by retaliating against her for exercising her FMLA rights and by interfering with those rights and that it discriminated against her on the basis of a disability in violation of Ohio state law. The court granted the Hospital’s motion for summary judgment, dismissing all claims.

The court agreed that sleeping while on duty constituted a legitimate, nondiscriminatory reason for terminating Lasher’s employment. Applying Sixth Circuit case law, the court found that because the Hospital honestly believed Lasher was sleeping while on duty, she could not establish the stated reason for terminating her employment was pretext for unlawful conduct. The court also found Lasher failed to identify any employee who engaged in substantially identical conduct and was treated differently under the policy the Hospital relied on to discharge her. For these reasons, the court dismissed Lasher’s FMLA retaliation and state law disability discrimination claims.

The court also dismissed an FMLA interference claim, because Lasher did not notify the Hospital she needed leave on the night she fell asleep while on duty. It is undisputed Lasher’s manager previously had made clear that if she experienced a migraine during a shift, she must notify someone that she needs to remove herself from patient care and that she cannot just leave patients without letting someone know. Lasher did not inform anyone she was experiencing migraine symptoms when she went into the vacant room. Nor did she later inform her manager that she needed FMLA leave that night.

The Hospital’s proactive approach to addressing Lasher’s potential need for accommodations and FMLA leave was a key to its victory in this matter. Healthcare employers should train front line managers to work with their Human Resources colleagues to engage in the kind of interactive dialog that occurred here.