Recent Updates in Health Care Employment Law

New York health care providers employ almost one million employees in New York State and are subject to a wide array of employment laws as well as unique challenges and issues.  Most of these laws apply to health care providers regardless of whether they employ four or four thousand employees.  This column will briefly summarize recent laws, decisions and issues affecting New York health care employers.

A New York appellate court recently rejected age discrimination and disparate pay claims by the former chair of the urology department at Montefiore Medical Center.  In Melman v. Montefiore Medical Center, a divided appellate court granted summary judgment to Montefiore despite a strong dissent and prior court decisions broadly construing the scope and provisions of New York Human Rights Law.  According to the case, the former urology chair complained that he was paid less and received smaller pay increases than younger colleagues at Montefiore; he was paid less than the heads of other departments at the Hospital; and he was paid less than people holding similar urology chair positions at other hospitals.  The employee also alleged retaliation after he filed his discrimination claims.  The Court found that the former urology chair had failed to provide direct or circumstantial evidence that age discrimination was a motivating factor regarding his pay or that any adverse employment actin was taken against him because he filed a discrimination claim.  This appellate decision is significant because several prior courts had decided that these types of claims should normally be decided by a jury at trial and not on summary judgment.

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued an enforcement guideline regarding the use by employers of arrest and conviction records in hiring and employment decisions.  The EEOC contended that automatic exclusions for employment in hiring, promotions or terminations because of a criminal background may be discriminatory and have a disparate impact on minorities and other protected groups.  Additionally, New York law prohibits certain employment decisions based on employee or applicant arrests and convictions.  Further, federal and New York State law require certain notice and consent requirements regarding criminal background checks by employers.  As a result, health care employers should review their policies; update their background check procedures; and consult with a professional prior to refusing to hire, refusing to promote, or firing an employee due to a prior or pending arrest or conviction.

Health care employers must also reasonably accommodate the religious beliefs of their employees regarding such issues as days of work, expressions of religious views, dress codes, participations in abortions, and other terms and conditions of employment.  For example, in a recent federal court case filed in New Jersey in Danquah v. University of Medicine & Dentistry of New Jersey, a group of nurses challenged a health provider policy requiring all nurses to assist in termination of pregnancy procedures.  The case was settled by permitting objecting nurses to refrain from participating in non-emergency care of patients seeking an abortion.  Additionally, the EEOC Manual contains an example of reasonable accommodations by a hospital to a nurse assigned to a labor and delivery unit whose religion forbid her from participating “directly or indirectly in ending a life”.

In another 2012 New York appellate court decision, Villaria v. Rabbi Haskel Lookstein School, the court upheld a whistleblower claim by a nurse in a school under New York Labor Law Section 740 where the nurse claimed retaliation for reporting to the state child abuse registry an incident that a parent struck a child in the face.  New York Labor Law Section 741 also contains specific whistleblower procedures and protections for health care employees.