Healthcare HR – New developments lead to new challenges

Experienced healthcare executives know the workplace can be a legal minefield, especially in employment law matters—and with a number of recent rulings and new regulations, the hazards are even greater.

Healthcare executives must ensure that HR professionals and hospital management recognize these hazards and seek the resources needed to navigate through them. In many employment law situations, one of the keys is engaging employees in an "interactive process" to collaboratively come up with a solution. Through thoughtful employee engagement, healthcare professionals can often avoid the potentially damaging impact that accompanies these issues.

Pregnancy accommodation

The Americans with Disabilities Act requires employers to provide "reasonable accommodation" to employees who have a physical or mental impairment that substantially limits a major life activity. The challenges can arise with any employee suffering from impairment, but most often these challenges arise in conjunction with a leave of absence under the Family and Medical Leave Act. The FMLA requires large employers to grant up to 12 weeks of unpaid, job-protected leave to eligible employees for a variety of reasons, including the employee's own serious health condition.

So, how must a hospital respond when a direct patient care employee encounters lifting restrictions due to a pregnancy? Or, what if the pregnant employee works in chemotherapy, or in radiology, and cannot during the pregnancy be exposed to the workplace hazards?

Recently, the Supreme Court ruled (Young v. United Parcel Service) that a pregnant employee, in requesting accommodation for her pregnancy, can compare her treatment to that of others who also have a disability as evidence of what the employer must do for a pregnant employee. The Court ruled this comparison is available to the pregnant employee to prove pregnancy discrimination even if the employer did not provide the same accommodation to all disabled employees (i.e., for example, if the employer provides temporary, light duty to employees injured on the job but not to employees injured off the job). While the Supreme Court stated that pregnant employees are not entitled to "most favored" employee status in this accommodation discussion (i.e., gets the best accommodation provided to any other employee with an impairment even if that accommodation not provided for all with impairment), that is the practical effect of this ruling.

What is the hospital to do? First, the hospital should engage the pregnant employee in an interactive process. The employee must be involved in considering her options.

  • One option is modifying the employee's job, although the employer is not required to eliminate "essential functions" of the job. What is an "essential function" becomes a critical question.
  • Another option to consider is re-assignment to a vacant position. But, the EEOC and many jurisdictions require that the offer be a "preferred re-assignment" – that is, the employee cannot be required to "bid" on or apply for the job among other candidates, but must be given the job.
  • And, if the employee qualifies for FMLA, the employee (a) can choose leave rather than accepting the transfer, and (b) any transfer to a different vacancy cannot be a forced permanent re-assignment;
  • Finally, the employer must consider a job-protected leave of absence, if the employee cannot perform essential function(s) of her job, even if FMLA does not apply.

The employer might also wish to consider "temporary, non-mandatory" accommodations for a limited time. These accommodations often are called "light duty" programs and involve finding light work for the employee at the same pay as regular job, or eliminating duties that are otherwise essential job functions but only for a brief period of impairment, or for "work hardening," or until next doctor visit, etc.

  • Savvy employers know to put a time limit on such temporary light duty assignments as they are in excess of what the ADA requires and should be provided on a limited basis, after which time the approach to the situation is re-evaluated (with the interactive process again).
  • And, if the employer has provided such "temporary, non-mandatory" accommodations for other, non-pregnant, employees, the employer will need to consider making similar "temporary, non-mandatory" accommodations for the pregnant employee under the new Supreme Court authority mentioned above.

Recent NLRB activity

Healthcare employers in many jurisdictions have been facing increasing pressure from various unions, especially nurses' unions. Recent NLRB activity likely will assist such unions in their efforts to unionize healthcare providers. The NLRB issued its so-called "quickie election" rules, which went into effect April 4, shortening the period from when a petition for an election is filed and when the election is held. Most consider the shortened period of time between the filing of a petition and the election to favor the union, as many employers will be caught by surprise and may not have adequate time to respond to the union's sales pitch.

Just recently, a federal judge in Washington, D.C., rejected the U.S. Chamber of Commerce's attack on such "quickie election" rules, dismissing that group's lawsuit. Congress is considering legislation to reverse the NLRB's action on the election rules, but such legislation is not likely to become law given President Obama's expected veto of any such bill, if passed.

Several other actions by the NLRB further support such union activity.

  • The NLRB recently decided Purple Communications, reversing former precedent, and finding that unions have the right to use company email for union activity during non-work hours.
  • The NLRB has been very active in striking down what it views as restrictive social media policies, heightening protections for employees' criticisms of companies and management as protected concerted activity. Some of these rulings provide protections for comments and conduct that under prior rulings would have lost protection, such as vulgar cursing in complaints about management.

Religious discrimination and accommodations

Like the ADA, the area of religious discrimination and accommodations is not a new phenomenon in employment law, but recent rulings in the so-called "culture wars" present new challenges.

Employers have known for some time that they must make accommodations for persons who have religious objections to working on certain days of the week, or that employees often are protected by "conscience clauses" against adverse employment actions for refusing to provide or be a part of certain procedures (abortions, sterilizations, etc.).

For example, a group of nurses filed suit against the University of Medicine & Dentistry in New Jersey after it adopted a policy requiring all nurses to assist in termination-of-pregnancy procedures (Danquah v. University of Medicine & Dentistry). Since the university received federal funds, the nurses claimed protection against being forced to perform such procedures if against religious beliefs. The action eventually resulted in a settlement under which the objecting nurses were allowed to refrain from participating in non-emergency care of patients seeking an abortion, along with a commitment from the hospital to schedule non-objecting nurses on each shift.

Such conscience clauses do have their limits. California has ruled that if a healthcare worker is willing to provide the procedure in question, it cannot decline to provide such procedure to a class of individuals, even if that refusal is based on a religious rationale. In North Coast Women's Care Medical Group, Inc. v. San Diego Cty. Superior Court, the plaintiff was a lesbian who sought an artificial insemination from a fertility clinic. One of the clinic doctors, a specialist in the needed procedure, objected to performing the procedure given that the two parents of the child were females in a same-sex relationship. The California Supreme Court rejected the doctor's free speech and religious objections, finding a violation of California's law against sexual orientation discrimination. The Court noted that to avoid any conflict between religious beliefs and the state antidiscrimination provisions, the doctor could have refused to perform the insemination procedure to any patient and that refusing to perform it for only certain patients was a violation.

Yet, in EEOC v. Consol Energy Inc., the EEOC filed a lawsuit for an employee who refused to participate in the company's use of biometric hand scanners, citing religious objections and a link to the "mark of the beast" cited in the Bible's book of Revelation. The employee left the company over a debate with management about the hand-scanning mechanism it used and over its refusal to consider an exception or other alternatives. The EEOC won a jury verdict for the employee of $150,000 in January 2015 and was recently awarded an additional $436,000 in back pay and front pay damages, along with injunctive relief against the Company.
So, what's an employer to do?

  • Again, recognize your obligation to make reasonable accommodation for religious belief.
  • Also, recognize that religious belief does enjoy heightened protection from conscience clauses and other provisions protecting the right to object for religious reasons.
  • Engage in the interactive process (similar to the process for disability accommodation) to determine a possible path forward that does not present an undue hardship.
    • Ask the employee who is objecting what he/she wants to see done to resolve the conflict.
    • Document the suggestions from the employee.
    • Consider the reasonable options offered.
    • But, the employer is not required to adopt practices to impose materially greater burdens on other employees or on the operations.

Tim K. Garrett, Member, Bass, Berry & Sims PLC, counsels employers on the complex issues of today's workplace and assists in its challenging employer-employee relationship. While he works with companies across a range of industries, he has a particular focus on those within the healthcare industry. Tim can be reached at 615-742-6270 or

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