The government regulates many aspects of the employment relationship, including laws affecting recruitment, placement, pay plans, benefits, penalties, and terminations. The basis of the law is that people must be judged primarily by their job performance. A discussion of these laws should be prefaced with a look at the historical doctrine of employment-at-will.
The common-law doctrine of employment-at-will has historically governed the employment relationship. Employment-at-will , in which there is no contract of employment, means that employment takes place at the will of either the employer or the employee. Thus, the employment may be terminated at will, without notice, at any time, and without a reason. Conversely, the employee may quit at any time. The exception to this occurs when there is a specific employment contract between the employer and employee, specifying the duration and terms of employment. Then the relationship cannot be terminated during the contract period. The only protection of an at-will employment is that employees cannot be fired for an illegal reason—for example, due to the color of their skin or their age.
This concept of termination for any reason without incurring liability had been widely accepted. However, employment-at-will has begun to lose favor. Wrongful-discharge lawsuits, in which the employee believes the employer does not have a just cause , or legal reason, for firing the employee, have become more common. An example of this occurs when the employer asks employees to perform procedures for which they are not trained or that are not within the scope of their license. Even if employers win a wrongful-discharge lawsuit, they may ultimately be the losers due to the negative publicity and effect on employee morale. See Table 8.3 for a list of equal employment opportunity and employment discrimination laws.
TABLE 8.3 Equal Employment Opportunity and Employment Discrimination Laws
|· Title VII of the Civil Rights Act of 1964|
· Civil Rights Act of 1991
· Equal Employment Opportunity Act (EEOA) of 1972
· Pregnancy Discrimination Act of 1978
· Age Discrimination in Employment Act (ADEA) of 1967
· Rehabilitation Act of 1973
· Americans with Disabilities Act of 1990
· National Labor Relations Act (NLRA) of 1935
Title VII of the Civil Rights Act of 1964 (1991)
Title VII of the Civil Rights Act prohibits discrimination (unfair or unequal treatment), in employment based on five criteria: race, color, religion, gender, or national origin. This strongly worded act means that employers may not refuse to hire, unlawfully discharge, or in any other way discriminate against employees based on these five criteria. This proposal, which came from the Kennedy administration, is considered one of the most important pieces of all legislation, as it affects employment opportunity and discrimination. This act applies to all organizations that have 20 or more employees working 20 weeks or more during a year.
Title VII affects all aspects of patient care in institutions that receive federal assistance, such as Medicare and Medicaid.
Some of the most frequent violations in the healthcare employment field are related to Title VII issues.
The Equal Employment Opportunity Commission (EEOC) monitors Title VII, and the Justice Department enforces the statute. In some cases, the EEOC defers enforcement to local and state agencies. Employees must exhaust all administrative remedies offered from the EEOC before they can sue their employer under Title VII. The Equal Employment Opportunity Act, the Pregnancy Discrimination Act, and the Civil Rights Act of 1991 have further amended this act.
Title VII also makes sexual harassment a form of unlawful sex discrimination. Sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Quid pro quo, a Latin term meaning “something for something,” occurs when one valuable thing, such as a sexual favor, is given in exchange for another thing, such as job advancement. An employee who quits a job because sexual harassment created an offensive or hostile work environment may sue the employer for damages.
Affirmative action programs to remedy discriminatory practices in hiring minority group members are also covered under Title VII. These programs, required by federal statute, require that positive steps, such as hiring minority personnel, be taken to remedy past discrimination and to take steps to prevent future discrimination. Courts may mandate that affirmative action programs be implemented if there is evidence that an employer has intentionally discriminated against a particular minority group.
Who Is an Employee Under Title VII?
Title VII only prohibits employers from discriminating against employees. If an employer withholds employment taxes from a person’s income, then that person is considered an employee. While some cases are less clear, in general, if the employer can control the details of that person’s work then the person is considered to be an employee. In some cases, physicians who have lost medical staff memberships and thus hospital admitting privileges, have been able to sue the hospital under Title VII. An example of this is a federal case in which Dr. Pardazi sued the Cullman Medical Center. The federal case was tried in the 11th Circuit Court, and Title VII was the federal law that won the case for Pardazi (Pardazi v. Cullman Med. Ct., 838 F.2d 1155, 11th Cir. 1988).
Who Is an Employer Under Title VII?
A person who employs the services of another and provides payment for those services is considered an employer. In addition, an employer has the right to control the physical conduct of the employee in performing the service. The statute does not apply to independent contractors. A coworker is not an employer and, thus, is not liable under Title VII. The courts have also found that a parent company of the employer is not liable as the employer under Title VII (Garcia v. Elf Atochem, N. Am., 28 F.3d 446, 5th Cir. 1994).
Civil Rights Act of 1991
Congress amended Title VII by passing the Civil Rights Act of 1991. Wrongful discharge suits fall under this law. The Civil Rights Act permits the court to award both compensatory damages (for the loss of income or emotional pain and suffering) and punitive damages (to punish the defendant) to mistreated employees. Prior to this amendment, only compensatory damages were awarded.
Title VII provides that a hospital must treat physicians, nurses, other employees, and patients in a nondiscriminatory manner. It also prohibits hospital employees, such as nurses, from discriminating against patients, physicians, or fellow employees. In Simkins v. Moses H. Cone Hospital, a federal court held that two hospitals were prohibited from denying physicians appointments to the hospital staff on the basis of race. The court also prohibited these hospitals from refusing to admit patients or segregate patients on the basis of race. (Simkins v. Moses H. Cone Hospital, 323 F.2d 959, 4th Cir. 1963.)
Equal Employment Opportunity Act (EEOA) of 1972
The Equal Employment Opportunity Act (EEOA) authorizes the Equal Employment Opportunity Commission (EEOC) to sue employers in federal court on behalf of a class of people or an individual whose rights under Title VII have been violated.
Pregnancy Discrimination Act of 1978
Under the Pregnancy Discrimination Act , employers must treat pregnant women as they would any other employee, providing they can still do the job. This act has saved jobs for women and allowed them to advance even if they became pregnant or had to take a short leave for childbirth. An employer cannot force a woman to quit her job because she is pregnant. In addition, under this law, a woman cannot be refused a job because she has had an abortion. The pregnant woman is assured of equal treatment in such areas as disability, sick leave, and health insurance. The employer’s medical plan must cover pregnancy in the same way it would cover other medical conditions. If the worker is unable to work because of the pregnancy, then she qualifies for sick leave on the same basis as all the other employees.
If the employer offers employee leaves for disabilities, then a similar leave must be offered for pregnancy. Mandatory maternity leaves violate Title VII, because the Pregnancy Discrimination Act of 1978 is an amendment to that statute. In addition, the employer’s health plan must provide coverage for the dependent spouses of employees.
A federal district court found that a hospital had violated the Pregnancy Discrimination Act when it fired an x-ray technician upon learning that she was pregnant. The court felt that while it was necessary for the x-ray technician to avoid working in some areas of the x-ray department due to her condition, there were less discriminatory alternatives that the hospital could have used (Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 11th Cir. 1984).
This statute has many aspects that require special considerations. For instance, one federal court held that an employee who had job absences due to infertility treatments was not protected under this act (Zatarain v. WDSU-Television, Inc., WI 16777 E.D., La. 1995). In a 1994 case, a federal appellate court ruled that a pregnant home-health nurse who refused to treat an AIDS patient could be discharged under this statute (Armstrong v. Flowers Hosp., 33 F.3d 1308, 11th Cir. 1994).
Age Discrimination in Employment Act (ADEA) of 1967
The Age Discrimination in Employment Act protects persons 40 years or older against employment discrimination because of age. This law applies to employers who have 20 or more persons working for them. The employer will not be liable for violation of this law if there are extenuating circumstances, such as if the person does not have the ability to perform the job. If two people are up for hiring or a promotion and one of them is over 40, then the employer must be able to show (in writing) why the younger person, if hired or promoted, is more qualified. Education and performance, in addition to other factors, count toward qualification. Mandatory retirement is prohibited under this law except for certain exempt executives.
Note that women and men over 40 are protected by both Title VII and this act.
Employers must be cautious about what they say or put into writing in the event that they must terminate a person’s employment. For example, in a 1985 age discrimination suit, a 62-year-old supervisor nurse resigned and then sued the hospital because its administration had told her “new blood” was needed and made comments about her “advanced age.” She believed these statements made working conditions intolerable. The nurse supervisor won the suit (Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 11th Cir. 1985).
Rehabilitation Act of 1973
The Rehabilitation Act prohibits employment discrimination of the handicapped. This act prohibits discrimination based on disability in any institution that receives federal financial assistance. Therefore, a hospital or agency that receives Medicare and Medicaid reimbursement must comply with this law. However, courts have held in favor of plaintiffs, such as hospitals and nursing homes, that are not equipped to care for a special-needs patient such as a violent or aggressive patient who abuses the staff (Grubbs v. Medical Facilities of America, Inc., 879 F. Supp. W.D., Va. 1995).
This act had a major influence on the Americans with Disabilities Act of 1990 because it included a very broad definition of “handicapped.” It included people with physical or mental impairment, someone who has had an impairment, and someone who currently has an impairment. This definition protected people with a recognizable handicap, such as a physical handicap, and opened many doors for people with handicaps such as mental disorders who were formerly forgotten. In addition, this law was the beginning of a legal means for people to challenge their denial of employment for physical or mental reasons.
Americans with Disabilities Act (ADA) of 1990
There are 43 million disabled persons in the United States. The Americans with Disabilities Act (ADA) prohibits employers who have more than 15 employees from discriminating against such individuals. Persons with Acquired Immune Deficiency Syndrome (AIDS) are also covered under this act. In order to comply with this act, the employer must make reasonable accommodations, such as lowering telephones, installing ramps, and making elevator floor numbers accessible to wheelchair-bound persons. The exception to this occurs if the accommodations would be an undue hardship for the employer, such as the significant difficulty of installing an elevator in an old building. The term undue hardship has caused problems, as there is no clear definition of the term hardship or a dollar amount that constitutes hardship. There is a two-year implementation window for employers who must comply with this law. Patients, as well as employees, are also protected under this statute.
Private physicians can be held liable under the ADA for acts that take place in their offices. For example, in 1995 a federal appellate court upheld a lower court decision that an HIV-positive patient could sue his primary care physician for allegedly failing to treat or refer him to another physician (Woolfolk v. Duncan, 872 F. Supp. 1381, E.D., Pa. 1995).
In Tugg v. Towney, a federal court ruled that the ADA requires a state to provide counselors who use sign language to counsel deaf patients in state mental facilities. According to the court, the facility did not satisfy the ADA statute by merely providing mental health services through the use of interpreters (Tugg v. Towney, 864 F. Supp. 1201, S.D. Fla. 1994). The ADA addresses the law as it affects the deaf. Other regulations, such as IDEA or FAPE, address the rights of the deaf and hard of hearing.
Basic accommodations that can be made for persons with disabilities include:
· Parking spaces, clearly marked for the handicapped, near an accessible doorway.
· Inclined ramps into buildings or over curbs in parking lots.
· Elevator floor numbers that are accessible to wheelchair-bound patients and employees.
· Handicap accessible bathrooms with handrails.
· Hallways with at least 36 inches of clearance for wheelchairs.
· Desks and counters that accommodate a wheelchair.
· Telephone adapters for the hearing impaired.
Figure 8.1 shows a sign language teacher with a child who has a hearing impairment.
Figure 8.1 Sign Language Teacher
© Trevon Baker Photography
TABLE 8.4 Employee Health and Safety Laws
|· Occupational Safety and Health Act (OSHA) of 1970|
· Clinical Laboratory Improvement Act (CLIA) of 1988
· Health Maintenance Organization (HMO) Act of 1973
· Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985
· Drug-Free Workplace Act of 1988
The National Labor Relations Act of 1935
This act, also called the Wagner Act, established some of the most basic union rights. The National Labor Relations Act prohibits employer actions, such as attempting to force employees to stay out of unions, and labels these actions as “unfair labor practices.” This act set up the National Labor Relations Board (NLRB) to enforce these labor laws.
See Table 8.4 for a list of employee health and safety laws.
EMPLOYEE HEALTH AND SAFETY
Both state and federal laws regulate issues affecting an employee’s health and safety. While the state law may be stricter than the federal law, it cannot be more lenient.
Occupational Safety and Health Act (OSHA) of 1970
Under the Occupational Safety and Health Act (OSHA) , an employer is required by law to provide a safe and healthy work environment: the employer must protect the worker against hazards. OSHA regulations preempt all other state and local regulations regarding employee safety and health, meaning that states may not pass any laws concerning the working environment. In addition, there are right-to-know laws in many states which give employees access to workplace safety information such as the use of hazardous or toxic substances.
Employers and office managers should become familiar with OSHA regulations as they apply to their specific fields, not only to protect employees but also to avoid fines for OSHA violations, which can be severe. In addition, the poor publicity and public relations resulting from a serious OSHA violation can damage an office or company’s reputation.
It is better to err on the side of being too cautious when implementing OSHA regulations, rather than being too casual.
In 1991, OSHA developed rules to protect healthcare workers from bloodborne diseases. These are known as OSHA Occupational Exposure to Bloodborne Pathogens Standards. OSHA also established severe penalties of up to $7,000 for each violation of these standards by employers. These standards apply to any employee who has occupational exposure, which is defined as a reasonable anticipation that the employee’s duties will result in skin, mucous membrane, eye, or parenteral (a medication route other than rectal or oral) contact with bloodborne pathogens (disease-producing microorganisms) or other potentially infectious material. Healthcare workers, including physicians, nurses, medical assistants, laboratory workers, and housekeeping personnel, have occupational exposure. The OSHA standards mandate that each employee with occupational exposure must be offered the hepatitis B vaccination at the expense of the employer.
TABLE 8.5 List of Potentially Infectious Materials
|· Body fluid, including semen, amniotic fluid, pleural fluid, and cerebrospinal fluid, contaminated with blood|
· Saliva in dental procedures
· Vaginal secretions
· Tissues, cells, or fluids known to be HIV-infected
· Microbiological waste (kits or inoculated culture media)
· Pathologic waste (human tissue)
· Any unidentified body fluid
Note that an employee may decline, in writing, to receive the hepatitis B vaccine. See Table 8.5 for a list of potentially infectious materials.
The OSHA standards refer to urine, stool, sputum, nasal secretions, vomitus, and sweat only if there is visible evidence of blood. The OSHA compliance checklist for medical facilities and offices includes: eyewash stations, fire extinguishers, first-aid kits, written training programs, labels for chemical and hazardous waste, sharps containers, exit signs, spill kits, accident report forms, and chemical inventory lists.
In a medical workplace, additional safety issues may arise that are not found elsewhere, including protecting individuals against bloodborne pathogens.
The Hazard Communication Standard (HCS) from OSHA is meant to reduce injuries and illnesses in the workforce by alerting healthcare employees to potential dangers and risks when using hazardous chemicals and materials. Material Safety Data Sheets (MSDS) must be posted wherever hazardous materials are used. Employees are instructed to read the sheets and know how to handle all hazardous products, such as blood and chemicals.
OSHA guidelines are available from the U.S. Department of Labor, Washington, DC.
Clinical Laboratory Improvement Act (CLIA) of 1988
The federal government now requires that all clinical laboratories that test human specimens must be controlled. The Clinical Laboratories Improvement Act (CLIA) , establishing minimum quality standards for laboratories, has been amended several times. The CLIA 1992 standards mandate that there must be written policies and procedures for a comprehensive quality assurance program that will evaluate the overall ongoing quality of the testing process. See Table 8.6 for a list of CLIA laboratory requirements. (See Figure 8.2 Laboratory technicians at work.)
TABLE 8.6 List of CLIA Laboratory Requirements
|· Evaluate the effectiveness of the laboratory’s policies and procedures.|
· Identify and correct problems.
· Ensure the competence and adequacy of staff.
· Take corrective action if errors are found.
· Integrate corrective procedures into future policies and procedures.
· Document employee training and assess competency after the first year.
· Maintain the identity and integrity of patient samples during the entire testing process.
· Laboratory is subject to inspection every two years if performing moderate or high complexity tests.
CLIA testing regulations are mandated for most tests conducted in laboratories. However, there are certain tests that are waived if they are simple to run, almost foolproof, and if an erroneous result would not result in a negative impact on the patient. The Food and Drug Administration (FDA) has the responsibility for categorizing the tests and allowing the waiver (exemption) of testing. In general, tests approved by the FDA for home use are usually waived, although the manufacturer must request the waiver. Tests that require a microscope, calculations, or a judgment call are not waived and must meet CLIA standards. It is always advisable to search the CLIA website at www.hcfa.gov/medicaid/clia and www.cola.org for a complete list of waived tests. If the laboratory test is not on this list the