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Healthcare Workers Must Navigate Employment Issues While Fighting on the Frontlines

By Amy F. Shulman and Shira Z. Gelfand

Much has been asked of the doctors, nurses, and other healthcare workers fighting the COVID-19 pandemic. Our Executives & Professionals Practice Group is proud to represent several of them, and we owe all the frontline heroes and first responders our deepest gratitude - especially when hospitals that are short on staff and protective gear assign them new job duties to address patient needs. The irony is that when healthcare workers are deployed and redeployed where they are needed most, employers may limit those workers' rights and the ability to safeguard their health and their family members' well-being .

Shifting Roles and Increased Exposure

The coronavirus has placed heavy demands on emergency rooms, ICUs, and other treatment units across the U.S. In response, hospitals and healthcare providers are requiring workers to staff those areas and perform jobs that directly expose them to COVID-19. And as we've seen in the headlines, the scarcity of masks, gloves, gowns, face shields, and personal protection equipment (PPE) heightens the risk.

Because of the urgent need, recent implemented federal and state orders shield healthcare professionals from liability when rendering COVID-19-related treatment, with limited exceptions. This immunity enables and encourages doctors and nurses to work outside of their regular disciplines, increasing the number of practitioners available to treat virus-stricken patients.

Healthcare providers are redeploying staff across specialties to deal with the influx of COVID-19 patients. Workers with underlying medical conditions and those who are older, immunocompromised, or pregnant may suddenly find themselves with new virus-related job responsibilities that put them and their family members at risk.

Federal Paid Leave May Not Be an Option

The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act, both of which are part of the federal Families First Coronavirus Response Act, require employers with fewer than 500 employees to provide paid sick and family leave to employees for certain COVID-19-related reasons. But these employers can opt frontline workers out of those benefits.

Recently-issued temporary regulations define "healthcare provider" and "emergency responder" very broadly, meaning that employers can deprive more doctors, nurses, EMTs, and others of employment protections that their colleagues outside the healthcare arena enjoy. The applicable laws appear to allow employers to decide on a case-by-case basis whether to extend the benefits. Thus, for many healthcare workers who contract the virus or who need to care for ill family members (perhaps infected by their relatives on the frontline), the availability of paid leave is left to the employer's discretion.

Protections for Employees with Risk Factors

Fortunately, state laws may protect the paid leave rights of healthcare workers. For instance, New York state law has no healthcare provider or emergency responder exemption that deprives covered employees of paid sick leave and family leave for specific COVID-19-related reasons. Additionally, the federal Family and Medical Leave Act has no exemption to deny an otherwise covered healthcare worker or first responder of leave for themselves or a family member with a "serious health condition," although the leave may be unpaid.

But what about healthcare employees who have not contracted the coronavirus, but have underlying conditions that place them at higher risk for serious illness from COVID-19 or who have conditions that can be exacerbated by the virus?

Federal, state, and local laws may entitle those workers to a reasonable job modification to alleviate the risk of a COVID-19 infection. This may include expecting women who may be at greater risk because of their pregnancy or pregnancy-related conditions or impairments.

Employees concerned about backlash for requesting a reasonable accommodation should know these laws also prohibit employment discrimination based on pregnancy or disability. Note, however, that employees may only be entitled to reasonable accommodation of their own disabilities or pregnancy; they are not entitled to an accommodation of a family member's medical condition or pregnancy.

One exception to these modification requirements is for age. Although people 65 and older are at increased risk of serious illness from COVID-19, employers are generally not required to provide reasonable accommodation solely based on an employee's age. Federal, state, and local age discrimination laws do, however, generally prohibit covered employers from treating protected older employees worse than their younger counter-parts when it comes to leave or other benefits. And, federal law does allow covered employers to favor protected older workers based on age, such as mutually-agreeable assignments to non-COVID-19-facing positions (although state and local laws may differ in this regard).

At-risk healthcare workers shouldn't be afraid to speak up or fear termination or adverse actions when requesting reasonable accommodation. Employees who are asked to work in unsafe conditions or who have objected to such assignments may have additional rights under federal and state health and safety statutes and whistleblower retaliation laws.

Consult an Attorney Experienced in Healthcare Workplace Issues

Each night in New York City and elsewhere across the country, we cheer for healthcare workers to applaud their tireless efforts and inspire them to continue the selfless work of saving other people's lives. Besides navigating the clinical dangers of COVID-19, healthcare workers need to understand their employment rights and options for safeguarding their health and that of their family members.

If you are a frontline healthcare hero with questions about how different laws affect your workplace protections in these rapidly-changing times, please contact Outten & Golden. Our attorneys have experience across a broad range of employment matters, and we continue to monitor developments in the law that impact healthcare workers.