EEOC

March 17, 2022

Posted on by Courtney Patterson

QUESTION:
Our hospital’s medical staff is working on a policy to screen older practitioners at reappointment for health issues that may affect their clinical ability.  A member of the MEC was previously at a hospital with a similar policy in place. She has spearheaded the effort and noted that her previous hospital’s policy was able to detect health issues with three elderly physicians.  While the preliminary discussions have been overwhelmingly positive, a couple of our physicians in their 70s voiced dissent with the policy at the last full medical staff meeting because they feel singled out.  Should we be worried about them suing the hospital if the policy is put in place?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
The current legal status of these types of “late career practitioner policies” is in flux.  Late career practitioner policies which screen older physicians at reappointment have been around for decades.  There are published articles detailing the various methods for implementing a late career practitioner policy and how effective those policies were. The rationale for the policies makes sense – catch any potential problems proactively before any patient harm or clinical trends appear.

However, in early 2020 the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Yale New Haven Hospital based on its late career practitioner policy.  The EEOC alleged that Yale New Haven was violating both the Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”) by singling out physicians solely on the basis of their age.  While Yale New Haven is fighting the still-pending lawsuit, certain other hospitals and health systems have withdrawn their policies and paid damages to older physicians after being targeted by the EEOC.

Therefore, creating a new late career practitioner policy or continued enforcement of an old policy creates some legal risk, at least while the EEOC lawsuit against Yale is still pending.  Ultimately, the decision to move forward with such a policy needs to be deliberate, with buy-in from both the hospital’s medical staff and administration, and the knowledge that an adverse court opinion in the EEOC lawsuit will immediately put the brakes on such a policy.

For follow-up questions, please contact John Wieczorek at jwieczorek@hortyspringer.com.

June 10, 2021

Posted on by Courtney Patterson

QUESTION:   “Can our hospital impose a requirement that all Medical Staff members get a COVID-19 vaccine?”

ANSWER:      While we are aware of some hospitals that are considering making COVID-19 vaccination mandatory for their Medical Staffs, most have not yet implemented such a policy.  We should also note that at least one health system is subject to a class action lawsuit filed by 117 of its employees because of its policy requiring employees to be vaccinated against COVID-19. Read about it here.

While the COVID-19 vaccination is proving to be remarkably effective in controlling the spread of the virus, one of the things that is holding some hospitals and health systems back is that the vaccine is currently under emergency use authorization, rather than the full vaccine authorization normally granted by the FDA.  However, at least two pharmaceutical companies are seeking full authorization from the FDA.  On May 7, 2021, Pfizer requested full approval for their COVID-19 vaccine from the FDA.  Moderna followed suit on June 1, 2021.

As noted above in Your Government at Work, the EEOC, in its updated guidance, emphasized that the federal employment equal opportunity laws do not prevent employers from requiring COVID-19 vaccinations, subject to reasonable accommodation provisions and other equal employment considerations.  But, the EEOC also notes that it is beyond its jurisdiction “to discuss the legal implications of [emergency use authorization] or the FDA approach.”

The section of the federal Food, Drug, and Cosmetic Act allowing emergency use authorization requires that individuals to whom a product subject to emergency use authorization is administered are informed of “the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”  A reasonable interpretation of this statute would give any individual the right to refuse a vaccine that has only been given emergency use authorization and thus preclude mandates.  A counter-interpretation is that an individual must be informed of the consequences of refusal to accept an emergency use authorization vaccination, such as, for example, automatic relinquishment of clinical privileges.

Nonetheless, if you do decide to move forward with a COVID-19 vaccination requirement, you want to make sure that it is consistent with your Medical Staff Governance Documents and Hospital policies.  There should not be anything to keep you from proceeding, but you will want to confirm this.  You will also want to check if your documents permit you to mandate any vaccines.  If they do, this could set the groundwork for a COVID-19 vaccine requirement.  For example, Medical Staff Bylaws often already require influenza vaccination.  Further, many Bylaws include a threshold eligibility criterion for appointment and privileges stating that an individual must complete all required health screenings and vaccinations prior to providing any patient care at the hospital and any appointment/privileges granted by the Board are conditioned on the individual’s compliance with those requirements.  If you have this threshold eligibility criterion language, it should be broad enough to include a COVID-19 vaccination requirement in a separate policy.

November 15, 2018

Posted on by hortyspringer

QUESTION:        If we decided to implement standardized personality tests across our institution, would this raise any legal concerns?  Does the EEOC have any guidance on this?

ANSWER:            Personality tests raise significant legal concerns and should be approached cautiously.  Although it is becoming increasingly common to see personality testing as a standardized part of job screening, the federal Equal Employment Opportunity Commission (“EEOC”) has raised concerns that such testing can have unlawful discriminatory impacts.  For example, the EEOC recently reached an agreement with CVS following a probe over whether the drugstore chain’s use of personality tests had a negative impact on jobseekers based on their race and/or national origin.  (See here for the EEOC press release.)

The exact nature and extent of the legal risk vary depending on how the test is designed and administered.  As a general rule, any employer who uses a personality test (or similar selection procedure) should be prepared to justify its use under close scrutiny.  Even if a test is administered without any intent to discriminate, it might still have an unlawfully disproportionate impact on a protected class of people (for example, disproportionately excluding people based on race, religion, sex, or other protected factors).  Employers must have strong evidence showing that the selection procedures/tests are job-related and consistent with business necessity and should be confident that their evidence can persuade skeptical regulators.

Unless you have well-documented empirical evidence to defend the use (and necessity) of a particular personality test, we would generally encourage you to avoid this kind of screening.