Don't Be A Target For the EEOC, Doc!

While we’ve all been hunkering down, fearful for our own health and the health of our loved ones, neighbors and the entire world, the EEOC has still been ferreting out the activities of health care employers who have seemingly lost sight of their purpose.

I’m talking about the health care providers who are alleged to have discriminated against disabled employees, in violation of the Americans With Disabilities act (“ADA”) – employers who I refer to as the EEOC’s “low hanging fruit.”

An important note first: employers should be aware that the EEOC has stressed that the anti-discrimination laws – especially the ADEA and the ADA – are still enforceable and will be enforced, and do not conflict with the CDC guidelines and suggestions.

Anyway, back to the cases involving the EEOC’s easy pickins – the targets which to the EEOC must seem “like shooting fish in a barrel.”  And, if all the cases which I’ve written posts about are any indication, an easy target you will be if you are a doctor or hospital or nursing home which doesn’t take care to comply with the laws prohibiting discrimination on the basis of disability or pregnancy.

For example, the EEOC just announced that it sued an Indiana senior living community operator because it allegedly determined that an employee:

“could no longer perform the essential functions of her certified nursing assistant job after a work injury resulted in lifting restrictions. The employee expressed interest in several jobs she could have performed without violating her lifting restrictions, but [the employer refused to transfer her to a vacant position for which she was qualified.”

As I hope everyone knows by now, and as an EEOC attorney noted – “The ADA requires employers to engage in an interactive process with qualified individuals with disabilities. Blanket rejections of requests for reasonable accommodation are unlawful and will not be tolerated.”

Got that? Individualized assessments and no “blanket” rejections of requests for “reasonable accommodations.”

In a second suit, the EEOC claimed that “a Delaware-based management services organization that provides support to eye care providers” allegedly subjected an employee optometrist “to an unlawful medical inquiry and then fired him because it perceived him to be disabled.”

Remember — you cannot discriminate against an employee (or job applicant) either because of a disability or a perceived disability.

Apparently, the company learned about the optometrist’s medical condition 3 months into his tenure, and “without conducting an individualized assessment to determine whether the condition would affect his ability to perform his job, told him that he could no longer work for the company.”

The optometrist claimed that this was unlawful, and the company

“postponed his termination, placed him on a leave of absence and required him to submit to an overly broad and intrusive medical inquiry into health conditions unrelated to his ability to perform his job. When the employee opposed the breadth of the medical inquiry and refused to submit to it, [the company] sent him an official termination letter. …”

The EEOC trial attorney correctly noted that “medical inquiries must be job-related and consistent with business necessity in order to be lawful.”

Don’t be a target!

Don’t be a fish in a barrel!  Or a low hanging fruit!

If you are a medical or healthcare provider you have to be especially careful to comply with the anti-discrimination laws!

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]