Medical laboratory employee alleges healthcare system discriminated based on her medical condition, failed to accommodate her disability, then retaliated and created hostile working conditions
What is a clinical laboratory’s obligation when an employee is infected with the SARS-CoV-2 coronavirus and does not make a speedy recovery? Medical laboratory executives should ponder this question now that a California hospital system is being sued by a 33-year laboratory employee who was terminated after missing too many workdays due to “long-haul” COVID-19 illness.
Hamada’s attorney, Amanda Whitten JD of Bryant Whitten LLP in Fresno, told The Fresno Bee that “ [California] state law allows an employee to take up to 12 weeks of leave a year to deal with a serious medical condition,” and that, “It’s also illegal for an employer to retaliate against an employee for requesting and taking that leave.”
Michelle Von Tersch, Senior Vice President of Communications and Legislative Affairs at Community Medical Centers, told the Fresno Bee in a statement that she could not comment on the pending litigation. But she added, “During the COVID-19 pandemic, Community Medical Centers expanded employee assistance programs, including extended time off for employees to care for themselves and their loved ones.”
Community Medical Centers (CMC) is a not-for-profit healthcare system in the greater Fresno area. It operates four hospitals and a cancer institute, and several long-term care, outpatient, and other healthcare facilities. CMC has more than 8,800 employees, according to a hospital fact sheet.
Was Hamada Wrongfully Discharged?
The lawsuit states Hamada worked for Community Hospitals of Central California as a clinical laboratory scientist from July 1, 1987, until Oct. 13, 2020, when she was “wrongfully discharged.” In the filing, Hamada’s attorney noted that Hamada received “good performance reviews and salary increases and was not subject to discipline for her job performance” during her more than 30 years of employment.
After Hamada became sick with COVID-19 in mid-April 2020, she followed her doctor’s recommendation and went on medical leave for roughly six weeks. However, when she returned to work in June 2020, she “still suffered from the effects of the coronavirus” and was considered a “long-haul” COVID-19 patient, the lawsuit states. As a result, her healthcare provider suggested she request “intermittent medical leave” due to her continued illness and underlying medical conditions, including diabetes, cardio-pulmonary disease, and traumatic brain injury.
Plaintiff Alleges Threats and Intimidation
The lawsuit contends Hamada’s request for additional medical leave resulted in her supervisor telling her, “you better not” file the request. In addition to this threat, the plaintiff alleges she was shunned by her supervisor and coworkers and then subjected to discipline based on attendance when she was absent from work due to her medical condition. In October, she was terminated due to violating the “employer’s attendance policy,” the lawsuit states.
The complaint outlines eight causes of action:
Discrimination based on medical condition, disability, or perceived disability.
Failure to accommodate a disability.
Failure to prevent discrimination and discrimination based on medical condition, disability, or perceived disability.
Wrongful termination in violation of public policy.
Defamation.
The California Family Rights Act provides most employees in California with the right to take up to 12 weeks of leave from work to care for themselves or family members with a serious health condition or bond with a new child.
Hamada is requesting a jury award for:
general damages above the jurisdictional minimum of the Court,
special damages,
punitive damages,
interest on lost earnings,
deferred compensation and employee benefits,
reinstatement of her job, and
reimbursement of attorneys’ fees.
Should Long-Haul COVID-19 Be Considered a Disability?
In an article on the Society for Human Resource Management (SHRM) website, David Fram, JD (above), Director of ADA Services with the National Employment Law Institute (NELI), said, “If someone has COVID-19 for two weeks and there are no lingering effects, he or she still could be regarded as having a disability. While an employer doesn’t have to reasonably accommodate someone it merely regards as having a disability, it must refrain from discriminating against that person.” Additionally, he noted, “An employer must not discriminate against and must reasonably accommodate someone who has an impairment that substantially limits a major life activity, which could include a COVID-19 long hauler.” (Photo copyright: National Institutes of Health.)
Are Clinical Laboratories Legally Obligated?
In the same article, S. Leigh Jeter, JD, Senior Counsel with Michael Best and Friedrich in Chicago, said, “Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the Act.” She added, “I encourage employers to err on the side of assuming that the employee may be covered under the ADA and then consider those resulting legal obligations.”
Removal of nonessential functions of the position might be a reasonable accommodation, Jeter noted.
Clinical laboratory executives would be wise to follow this COVID-19-related lawsuit closely and review their employment policies to better understand their obligation toward their workers under the Americans with Disabilities Act. This case may open the door to additional lawsuits related to COVID-19 firings.
Critics claim the bill would remove genetic privacy and discrimination protections provided by the 2008 GINA Act and other federal laws and might cause medical laboratories performing these tests to become embroiled in employee-employer disputes
Pathology groups and clinical laboratories are closely watching how society reacts to information that comes from genetic testing. Thus, the groundswell of opposition against a House bill that would require employees participating in workplace wellness programs to undergo genetic testing, and to share the results with their employers or face higher healthcare premiums, will be of particular interest and could impact the pathology industry as a whole.
Could Clinical Laboratories Become Entangled in Employee-Employer Disputes?
The fast-forming public outcry against lifting privacy protections for genetic testing in the workplace provides the medical laboratory testing industry with more evidence that concerns over genetic discrimination remain at the forefront among healthcare consumers, scientists, and medical professionals, despite growing understanding about the medical applications of genetics tests.
The House Committee on Education and the Workforce, which passed the bill on a straight party-line vote on March 8, 2017, said in a statement that HR 1313 would “bring uniformity to the regulation of wellness programs and clarify” that such programs are consistent with existing federal laws.
“All these proposals reflect the principle that individuals should have greater control over their healthcare and the freedom to do what’s best for their families,” Committee Chairperson Rep. Virginia Foxx (R-NC) said in a statement.
Jennifer Mathis, JD, Deputy Legal Director and Director of Policy and Legal Advocacy at the Bazelon Center for Mental Health Law, charges that privacy and other protections for genetic and health information provided by the 2008 Genetic Information and Nondiscrimination Act (Gina) and the 1990 Americans with Disabilities Act (ADA) “would be pretty much eviscerated” by HR 1313. (Photo copyright: Center for Disabilities Studies, University of Delaware.)
Opponents of the legislation claim the bill undermines GINA—which when enacted in 2008 was celebrated as the “first major new civil rights bill of the new century”—by removing genetic privacy and nondiscrimination protections. GINA prohibits employers from using genetic information to hire, fire, or promote an employee. And it bars health plans and insurers from using results to deny coverage or charge higher premiums.
Sixty-nine consumer, health, and medical advocacy organizations¬ have banded together to oppose HR 1313 and ask that “the nondiscrimination protections afforded to all Americans by GINA and the ADA” be preserved. They include:
“We strongly oppose any legislation that would allow employers to inquire about employees’ private genetic information, or medical information unrelated to their ability to do their jobs, and to impose draconian penalties on employees who choose to keep that information private,” the organizations stated in their March 7 letter to the House Committee.
Prior to the committee approving the bill, The American Society of Human Genetics (ASHG) also went on record opposing HR 1313 for “fundamentally undermining the privacy provisions” of GINA and the ADA.
Law Would Allow Penalties on Employees for Not Cooperating
Privacy concerns are just one issue dogging the legislation. The bill also would allow employers to impose financial penalties of up to 30% of the total cost of an employee’s health insurance plan on workers who do not participate in genetic testing required by their workplace wellness program. Using the Kaiser Family Foundation’s 2016 Employer Health Benefits Survey as a guide, in a press release the ASHG estimated employees could be charged an extra $5,443 in annual premiums if they chose not to share their genetic information.
“If enacted, this bill would force Americans to choose between access to affordable healthcare and keeping their personal genetic and health information private,” Derek Scholes, PhD, Director of Science Policy at ASHG, said in the press release. “Employers would be able to coerce employees into providing their genetic and health information and that of their families, even their children.”
A unnamed spokesperson for the House Committee on Education and the Workforce defended the legislation in an interview with CNBC, claiming opponents were intentionally misrepresenting the bill’s intent.
“Those who are opposed to the bill are spreading false information in a desperate attempt to deny employees the choice to participate in a voluntary program that can reduce health insurance costs and encourage healthy lifestyle choices,” she told CNBC. She pointed to the HR 1313 fact sheet, which states the legislation “reaffirms existing law to allow employee wellness programs to be tied to responsible financial incentives.”
The “existing law” the source is referring to is the Patient Protection and Affordable Care Act (ACA), which the Obama administration made law in 2010 in support of employer wellness programs as part of its push to encourage American’s to take responsibility for their healthcare. As written, the ACA already empowers employers to require employees who wish to participate in their company’s wellness programs to undergo genetic testing, the spokesperson reiterated.
Why Medical Laboratories Should Track the Progress of This Proposed Law
Clinical laboratory managers will want to watch the progress of this proposed legislation. The possibility exists that, if a lab performed a genetic test for a patient, and that patient later got into a dispute with the employer wanting access to those genetic test results, the lab could find itself embroiled in that dispute if the employer took legal action to compel the laboratory to reveal those test results. That scenario is a long way from becoming reality, but it does illustrate why this law, if enacted, could prove troublesome for the nation’s medical laboratories.
At this year’s Executive War College (EWC), which takes place on May 2-3 in New Orleans, a special panel discussion with four attorneys experienced in lab and pathology law will discuss emerging legal and compliance issues that involve medical laboratory testing. This proposed bill and other new genetic testing issues will be among the topics addressed by the attorneys on this panel.
