Healthcare Litigation Trend Reveals Allegations of Non-Accommodation Of Employees With Disabilities At Height Of Pandemic | Fisher phillips
With the nationwide vaccine rollout underway and largely successful, the path to some semblance of normalcy seems within reach for Summer. However, many employers across the country find themselves swimming in the fallout of costly and protracted litigation arising from lawsuits alleging they have failed to accommodate workers affected by the virus. The healthcare industry is a particular target for such complaints given the unique danger the work environment presents to employees; for example, the increased likelihood of even minimal exposure to infected patients and / or contaminated areas. As the number of infected patients declines, we are seeing an increase in lawsuits alleging that healthcare employers have failed to accommodate employees with disabilities who are more likely to experience fatal transmission of COVID-19. This trend serves as a grim reminder to healthcare employers that even when inundated in a global state of emergency, there remains a duty to devote time and careful consideration to the interactive process when initiated by an employee with a medical disability.
Litigation across the country and warning stories
The following examples illustrate the ever-present duty to engage in an interactive process to provide reasonable accommodation in the absence of professional hardship when faced with an employee with a disability.
From Golden State to the coastal city of New Haven, Connecticut, healthcare facilities are battling claims of disability discrimination for alleged failure to accommodate employees with respiratory problems, including asthma and cancer, which increase vulnerability to calamitous complications of COVID-19 transmission. For example, at Yale Hospital New Haven, an “administrative associate” of the hospital’s blood bank was reportedly denied Work-from-Home (WFH) status despite having successfully worked remotely for a period of time. the national shutdown. When the hospital demanded that all employees return to work in May 2020, it reportedly refused a request for reasonable accommodation from a partner with cancer (making the viral infection much more dangerous). In a very similar evidence pattern across the country in the California capital, Western Health Advantage reportedly denied WFH status to a data analyst with asthma, despite claiming it allowed employees in a similar situation (eg, other data analysts) without the disability of working remotely. And back on the east coast of New Jersey, a home care company reportedly denied an occupational therapist with asthma an exemption from treating patients infected with COVID-19 as well.
While the facts of these examples – all involving active litigation – are drawn from civil complaints filed by plaintiff employees with disabilities and therefore only tell one side of the story, they do tell uplifting tales of the interactive process required. For example, in the lawsuit against Yale New Haven Hospital, the complainant, in an administrative position rather than patient care, alleges exceptional performance and no disruption to her work while the WFH during the shutdown. Likewise, the data analyzer at Sacramento alleges facts in its complaint potentially gutting a colorable argument for work hardship – other similar employees have been cleared at WFH.
If these facts are proven in the course of a costly discovery, a possible liability exists for employers, as these employees could have continued to perform essential duties of their jobs with reasonable accommodations from the WFH. However, perhaps the facts are not so straightforward when an employee is in a patient care position like the New Jersey occupational therapist. Although its civil complaint alleges ancillary facts such as failure to provide appropriate PPE – thus implying other theories of liability – if the company provides evidence that there were no patients uninfected with COVID -19 (probably unlikely) to denote the therapist, it can be argued that the Affirmative defense of business difficulties is stronger.
So what can you do
Unfortunately, in practice, the analysis is rarely clear. When assessing the feasibility of accommodation and its impact on business, you should consider all of the circumstances, including factors such as the type of job and the nature of the duties (administration vs. patients), acuity of the facility, if the same accommodation has been granted to others, ability to maintain data security while WFH, ability to comply with HIPAA remotely, ability to provide similar quality of patient care – and the list goes on.
In short, the great thing is that no matter what your business, it is imperative to devote time and forethought to the interactive process. This obligation is present even in the midst of a medical emergency such as a global pandemic where large numbers of sick patients require intensive care. In the medical field, we know there will always be an emergency, but engaging in the interactive process by carefully evaluating potential accommodations in rapid response to a request from a disabled employee will protect your business from costly litigation and loss. even more costly liability.