A radiologist who claims he was forced to resign after requesting to work from home has settled his discrimination lawsuit with a New York hospital.
Although the case was resolved without a definitive win, legal analysts say the complaint raises important questions about whether some physicians have the right to work from home.
Since the pandemic, employers across the country have become more accepting of professionals working remotely. But are some doctors legally entitled to the accommodation? And if so, how do physicians prove the allowance is reasonable for their circumstances?
Richard Heiden, MD, sued New York City Health and Hospitals Corporation in 2020, claiming discrimination and retaliation violations under the American with Disabilities Act (ADA) and the New York State Human Rights Law. Heiden, who has ulcerative colitis, had asked to work off-site during the start of the pandemic, but the hospital denied his accommodation request. Shortly later, administrators accused Heiden of poor performance and requested he resign or administrators would terminate him, according to his lawsuit.
Attorneys for New York City Health and Hospitals Corporation contended that Heiden was a poorly performing radiologist who was undergoing a performance review at the time of his accommodation request. The radiologist’s departure was related to the results of the review and had nothing to do with his disability or accommodation request, according to the hospital.
The undisclosed settlement ends a 3-year court battle between Heiden and the hospital corporation.
In an email, Laura Williams, an attorney for the hospital corporation, said that “the settlement was in the best interest of all parties.”
Heiden and his attorneys also did not respond to requests for comment.
A critical piece to the puzzle is understanding who is protected under the ADA and is therefore entitled to reasonable accommodations, says Doron Dorfman, JSD, an associate professor at Seton Hall University Law School in Newark, New Jersey, who focuses on disability law.
A common misconception is that only physicians with a physical disability are “disabled,” he said. However, under the law, a disabled individual is anyone with a physical or mental impairment — including mental illness — that limits major life activities; a person with a history of such impairment; or a person who is perceived by others as having an impairment.
“The law is much broader than many people think,” he said. “I think a lot of people don’t think about those with invisible disabilities, such as people with allergies, those who are immunocompromised, those with chronic illnesses. A lot of people don’t see themselves as disabled, and a lot of employers don’t see them as disabled.”
Working from home has not historically been considered a “reasonable accommodation” under the ADA, Dorfman said. However, that appears to be changing.
“There has been a sea change,” Dorfman said. “The question is coming before the courts more frequently, and recent legal decisions show judges may be altering their views on the subject.”
What Led to the Doctor’s Lawsuit?
Heiden, a longtime radiologist, had practiced at Lincoln Medical and Mental Health Center for about a year when he requested to work remotely. (Lincoln is operated by New York City Health and Hospitals Corporation.) At the time, the governor of New York had ordered a statewide lockdown due to COVID-19, and Heiden expressed concern that his ulcerative colitis made him a high-risk individual for the virus, according to court documents.
In his March 22, 2020, request, Heiden said that except for fluoroscopy, his job could be done entirely from his home, according to a district court summary of the case. He also offered to pay for any costs associated with the remote work setup.
Around the same time, New York City Health and Hospitals Corporation had permitted its facilities to issue a limited number of workstations to radiologists to facilitate remote work in the event of COVID-related staffing shortages. Administrators were in the process of acquiring remote radiology workstations and determining which radiologists at Lincoln would receive them, according to the case summary.
On March 24, the chair of radiology at Lincoln met with Heiden to review the results of a recent focused professional practice evaluation (FPPE). An FPPE refers to an intensive review of an expansive selection of patient cases handled by the subject physician. During the meeting, the chair that claimed Heiden was a poor performer and was accurate in his assessments 93.8% of the time, which was below the hospital’s 97% threshold, according to Heiden’s lawsuit. Heiden disagreed with the results, and the two engaged in several more meetings.
Meanwhile, Heiden’s accommodation request was forwarded to other administrators. In an email introduced into court evidence, the chair indicated he did not support the accommodation, writing that Heiden’s “skill set does not meet the criteria for the initial installations” of the workstations.
On March 26, 2020, the chair allegedly asked Heiden to either resign or he would be terminated and reported to the New York State Office of Professional Medical Conduct. Four days later, Heiden learned that his accommodation request had been denied. He resigned on April 2, 2020.
In his lawsuit, Heiden claimed that the hospital discriminated against him on the basis of his disability in violation of ADA by denying him equal terms and conditions of employment and failing to provide a reasonable accommodation.
The defendants, who included the radiology chair, did not dispute that Heiden was asked to resign or that administrators warned termination, but they argued the impetus was his FPPE results and a history of inaccurate interpretations. Other clinicians and physicians had expressed concerns about Heiden’s “lack of clarity [and] interpretive errors,” according to deposition testimony. The hospital emphasized the FPPE had concluded before Heiden’s accommodation request was made.
New York Health and Hospitals Corporation requested a federal judge dismiss the lawsuit for lack of valid claims. In January 2023, US District Judge Lewis Liman allowed the case to proceed, ruling that some of Heiden’s claims had merit.
“Plaintiff has satisfied his obligation to proffer sufficient evidence to create an inference of retaliatory or discriminatory intent,” Judge Liman wrote in his decision. “…[The chair] had not always planned to ask for plaintiff’s resignation based on the results of the FPPE completed on March 10, 2020. The decision to ask for that resignation arose shortly after the request for the accommodation. And there is evidence from which the jury could find that [the chair] was not receptive to making the accommodation.”
A jury trial was scheduled for July 2023, but the parties reached a settlement on May 31, 2023.
Is Working From Home Reasonable for Physicians?
The widespread swing to remote work in recent years has paved a smoother road for physicians who request the accommodation, said Peter Poullos, MD, clinical associate professor of radiology, gastroenterology, and hepatology at Stanford University and founder and co-chair of the Stanford Medicine Alliance for Disability Inclusion and Equity.
“There is now a precedent and examples all over that working from home for some is a viable alternative to working in the hospital or a clinic,” Poullos said. “If a lawyer can point to instances of other people having received the same accommodation, even if the accommodation was given to someone without a disability, it’s much harder for an employer to say, ‘It’s not possible.’ Because clearly, it is.”
A key factor is the employee’s job duties and whether the employee can complete them remotely, said Dorfman. With physicians, the reasonableness would heavily depend on their specialty. A radiologist, for example, would probably have a stronger case for performing their duties remotely compared with a surgeon, Poullos said.
In general, whether an accommodation is reasonable is decided on a case-by-case basis and usually includes reviewing supporting documentation from a medical provider, said Emily Harvey, a Denver-based disability law attorney. Employers are allowed to deny accommodations if they would cause an undue burden to the employer or fundamentally alter the nature or operation of the job or business.
“When it comes to the ADA, and disability rights in general, the analysis is based on the need of the individual,” she said. “Two people with identical diagnoses could need vastly different accommodations to be successful in the same job.”
Dorfman adds that employers are only required to provide an accommodation that is reasonable under the circumstances, whether or not that accommodation meets the preferred request of the employee. For instance, if an immunocompromised physician asked to work from home, but the employer could ensure that all those working around the physician will mask, that could be reasonable enough.
A recent case analysis by Bloomberg Law shows that more courts are siding with employees who request remote work compared with in past years. Employees who made disability-related remote work requests prevailed in 40% of federal court rulings from 2021 to 2023, vs a success rate of 30% from 2017 to 2019, according to the July 2023 analysis.
The analysis shows that employers still win the majority of the time, but that the gap is closing, Dorfman said.
In a September 2020 decision, for example, a Massachusetts District Court ruled in favor of an employee with asthma who was precluding from working at home by a behavioral and mental health agency. US Magistrate Judge Katherine Robertson said that the manager was entitled to telework as a reasonable accommodation under the ADA for 60 days or until further notice. The lawsuit was settled in 2021.
“I think judges are much more used to working from home themselves,” Dorfman said. “That may affect their sense of accepting remote work as a reasonable accommodation. Their personal experience with it [may] actually inform their view of the topic.”
Your Accommodation Request Was Denied: Now What?
If you are unsure about your rights under the ADA, a first step is understanding the law’s protections and learning the obligations of your employer.
Keep in mind that not everyone at your workplace may understand the law and what is required, said Poullos. When making a request to work from home, ensure that you’re using the right words and asking the right people, he advised. Some physicians, for instance, may only discuss the request with their direct supervisor and give up when the request is denied.
“The employee might say, ‘I’ve been dealing with some medical issues and I’m really tired and need to adjust my schedule.'” Poullos said. “They don’t mention the word ‘disability,’ they don’t mention the ADA, they don’t mention the word ‘accommodation,’ and so that might not trigger the appropriate response.”
Lisa Meeks, PhD, an expert and researcher in disabilities in medical education, encourages physicians and others to follow the appeals process at their institution if they feel their accommodation request has been unjustly denied.
Research shows that physicians who make requests accommodations rarely escalate denials to an appeal, grievance, or complaint, said Meeks, co-host of the Docs With Disabilities podcast and director of the Docs With Disabilities Initiative. The initiative aims to use research, education, and stories to drive change in perceptions, disability policy, and procedures in health professions and in biomedical and science education.
If an accommodation cannot be agreed on, doctors can reach out the Equal Employment Opportunity Commission (EEOC) and file a discrimination charge. The agency will review the case and provide an opinion on whether the charge has merit. The EEOC’s decision is not binding in court, and even if the agency believes the charge has no merit, employees still have the right to sue, he said.
Harvey adds that the EEOC has many resources on its website, and that most states also have civil rights agencies that have additional resources. Every state and US territory also has a protection and advocacy organization that may be able to help, she said. Physicians can also review their state bar to locate and consult with disability rights attorneys.
Although it may seem like an uphill battle to push for an accommodation, it can be worth it in the end, says Michael Argenyi, MD, an addiction medicine specialist and assistant professor at UMass Chan Medical School. Argenyi, who has hearing loss, was featured on the Docs With Disabilities podcast.
“It’s difficult to ‘rock the boat’ and ask for support from the C-suite for employees with disabilities, or to rearrange a small medical office budget to establish a byline just for accommodations,” Argenyi said. “Yet, the payoff is worthwhile — patients and fellow colleagues notice commitments to diversity building and inclusion.”
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Publish date : 2023-09-19 12:00:00
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