Published in the New Hampshire Business Review
Audrey is the Practice Manager for a physician group. In her role she handles a number of administrative and financial duties including the human resource function. Louise, a Nurse Practitioner, suffered a heart attack. She has been out of work for several weeks and now says she is ready to return to work but only on a part time basis per the orders of her cardiologist. Dr. Smith, with whom Louise works, says she needs Louise back full time and if she can’t return to her job after her 12 weeks of FMLA, she needs to be replaced. What should Audrey do?
The US Equal Employment Opportunity Commission (“EEOC”) has kept no secret about its intent to target health care providers under the Americans with Disabilities Act (“ADA”). Recent lawsuits filed and settled by the EEOC against medical providers should have Audrey concerned.
In 2013 the EEOC filed suit against a large health care provider in Maryland alleging that it violated the ADA for failing to accommodate and then firing a pulmonary function technologist with Usher’s Syndrome, a genetic disorder which results in impaired hearing and vision. The suit alleged that Upper Chesapeake Health System terminated a 19 year employee who had consistently received excellent performance evaluations because of her disability and in retaliation for seeking a reasonable accommodation. The EEOC believed there was a suitable vacant position to which she could have been reassigned and that the employer’s refusal to put her in that position was the result of discrimination and retaliation. The case settled in April. In addition to paying $180,000 to the employee, the center is required to update and disseminate its ADA policy and to provide training to its employees.
A case brought against an optician’s office alleged that the employer’s denial of an optician’s request to bring her service dog to work to alleviate her symptoms of anxiety was in violation of the ADA. The optician indicated to her employer that her service dog alerted her to upcoming panic attacks and helped to manage her stress by bringing objects like her medical bag to her and guiding her to the building exit. The EEOC submitted that the request to bring the dog to work was a reasonable accommodation which would not cause an undue hardship to the employer.
Other examples of cases filed against health care providers include:
• A North Carolina nursing and rehabilitation center paid a settlement to an employee diagnosed with breast cancer who was fired for failing to show up for work after her request for leave to undergo surgery was denied.
• A nursing assistant settled a claim with a New York nursing and rehabilitation center which fired her for submitting her request for medical leave due to a back injury on the wrong form.
• Kaiser Permanente, the largest managed care organization in the country, was sued on behalf of a food service worker with hydrocephalus, a condition which causes difficulty with memory and concentration. The worker requested additional training and the assistance of a temporary job coach, who would have worked at no cost to the employer. The request was denied, and the employee was fired.
• A national personal training company was sued by the EEOC after it fired an employee who sought time away from work due to complications with her pregnancy. The employee produced a note from her doctor saying she needed the time, the company approved her medical leave and then fired her shortly thereafter for job abandonment.
The fact that the employers at issue in these cases are all purveyors of health-related services is no coincidence. The EEOC files very few lawsuits in any given year, and it seeks to make the biggest impact it can with the cases it does file. Highlighting a lack of tolerance and understanding on the part of those who treat people with disabilities makes for very good press for the EEOC and very bad press for the medical profession. For that reason, Practice Administrators like Audrey need to pay particular concern to employees seeking accommodations. In order for Audrey to protect her practice from possible claims of discrimination, Audrey needs to be proactive in her approach and thorough in her documentation and in doing so should:
1. Carefully consider the documentation provided by Louise’s cardiologist regarding her ability to return to work.
2. Engage in the interactive process with Louise by discussing what accommodations she might need to return to work safely and keep in mind that a reduced work schedule might be a reasonable accommodation.
3. Take care not to fall into the trap of concluding that the practice has carte blanche to terminate an employee who has exhausted FMLA leave without considering the implications of the ADA.
4. Document all of the interactions and conversations in the event she needs to justify a decision not to return Louise to her job.
As with any medical concern, communication and documentation are key. Are there more medical practices disregarding or misapplying the law or are more of them simply being targeted and called out for their mistakes? It is difficult to say, but it is critical that appropriate attention be paid to protecting the rights of employees while safeguarding the employers from the very real risk of lawsuits.
Charla Bizios Stevens is a Director in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at [email protected] or followed on Twitter at @charlastevens. She also contributes regularly to www.employmentlawbusinessguide.com.