PUBLIC POLICY AND ITS IMPACT ON THE EMPLOYMENT INDUSTRY

THESIS STATEMENT: PUBLIC POLICY AND ITS IMPACT ON THE EMPLOYMENT INDUSTRY SCENARIO 1 As the Director of Nursing, I recognize that Nurse Deb has the Right to refuse medical treatment.

This is a right recognized by the Constitution of the USA and U.S. labor laws which allow employees to form unions and collectively bargain over the terms and conditions of employment such as compulsory immunization. I would have subjected Nurse Deb to several other measures and would have only resulted to termination of employment as a last-minute solution. These measures would have included workforce vaccination campaigns showing1 that vaccination is for the good of all, enrolment in education programs on the importance of vaccination and financial incentives. As Nurse Deb is not vaccinated, I would have put additional precautions in place such as2 the compulsory use of masks or respirators during the influenza season, opting for a leave of absence and reassigning her to non-patient-care areas.

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1

Megan C. (2007). Assessing State Immunization Requirements for Healthcare Workers and Patients, PREVENTIVE MEDICINE, Lindley et al., 459-465.

2

Poland GA, Tosh P, Jacobson RM.(2005) Requiring influenza vaccination for health care workers: seven truths we must accept. Vaccine.

The Equal Employment Opportunity Commission (EEOC) advises employers to accommodate employees. Under Title VII of the Civil Rights Act of 1964, an employer must accommodate sincerely held religious practices that may conflict with workplace rules, as long as the religious practice does not impose an undue hardship. Nurse Deb will only need to show that the hospital did not make reasonable accommodations for her. The hospital should have found alternative accommodations for her that would permit her to honour her beliefs against vaccination.

If the lawsuit is successful the hospital will suffer grave consequences. Nurse Deb may be reinstated, the hospital may pay monetary damages such as compensation for wages and benefits lost, and for emotional and physical distress suffered by the employee. Punitive damages may also be ordered by the Court.

The Public Health Service Act allows hospitals to make necessary measures such as compulsory vaccination to prevent the introduction, transmission, or spread of communicable diseases.

The success of this lawsuit would influence all hospitals to offer a whole lot of accommodation to its employees that refuse to be vaccinated against the flu. A mask is one accommodation sometimes granted to employees who refuse flu shots. The hospital would accommodate employees' religious and other beliefs when it required of them to receive a flu vaccination annually.

There are multiple cases where the court has ruled against the hospital for unfair termination of its employee for refusing to get vaccinated. For example, In Chenzira v. Cincinnati Children’s Hospital Medical Center3, the court denied a hospital’s motion to dismiss a terminated worker’s Title VII religious discrimination claim. In Virginia Mason Hospital v. Washington State Nurses

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Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-cv-00917, 2012 WL 6721098

Ass’n4, the hospital had implemented a mandatory influenza immunization but the nurses’ union filed a grievance and an arbitrator ordered that the mandatory immunization protocol be rescinded based on his interpretation of the collective bargaining agreement and the Ninth Circuit upheld the arbitrator’s decision.

SCENARIO 2 Employees are protected by: The Fair Labor Standards Act (FLSA) dealing with employee wages and overtime hours. The Family Medical Leave Act (FMLA) which provides protection from employees during temporarily leave due to health-related issues. The Occupational Safety and Health Act (OSHA) which ensures the safety of employees’ work environments.

The Occupational Safety and Health Act protects workers from workplace hazards that might pose a risk of serious harm. OSHA affords various protections such as the right to ask the Occupational Safety and Health Administration to conduct an inspection of one’s worksite for potential hazards and the right to be presented with the results so as to determine if the hazards exist or not. Workers are also entitled to receive information and training about hazards5 they might encounter on the jobsite and what they can do to protect themselves from these hazards.

Personal protective equipment should be provided at all times and employees should be given proper instruction on their use and maintenance. Finally, workers are entitled to review records of work-related injuries and illnesses kept by their employer as well as obtain copies of their medical records.

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5

In Virginia Mason Hospital v. Washington State Nurses Ass’n, 511 F.3d 908, 911 (9th Cir. 2007),

Goldstein G., Helmer R., Fingerhut M., (2001), ―The WHO global strategy on occupational health and safety, African Newsletter on Occupational Health and Safety 11.

OSHA basically ensures that employees work in a safe environment by setting the standards of a safe and healthy environment and implementing the set standards by providing training, outreach, education and assistance. Employers must comply with all applicable OSHA standards and keep the workplace free from hazards6.

As CEO, I am well aware that all employees are protected from discriminatory adverse employment actions, including unfair dismissal, under the federal, state and local civil rights laws. Joe’s termination is a grave matter. Employees have various civil rights statutes protecting them from unfair dismissal especially in retaliation for engaging in various activities such as: 1. Reporting the employer for potential violation of various federal laws 2. Reporting or complaining about dangers to their public health and safety, and Some states have gone ahead and enacted laws protecting whistleblowers and complainants of such fraudulent or criminal conduct. As CEO I would call Joe who was dismissed and his manager whom he has reported for violation of OSHA standards for negotiations to meet an amicable solution that might include the reinstatement of Joe to his position.

If an employee is found to have been terminated in violation of any applicable statute, the employee may be entitled to various remedies. These remedies include: Being reinstated to the former position, monetary damages for loss of wages and for pain and suffering.

Unlike non-union employees who serve at the will of an employer, union employees have collective bargaining rights to due process whenever an employer takes disciplinary action.

Union employees cannot be arbitrarily let go without just cause. Wrongful termination can be grounds for filing a grievance, human rights complaint or lawsuit.

6

Honkasalo, A. (2000), ―Occupational health and safety and environmental management Systems, Environmental Science & Policy 3

Union employees usually have the terms and conditions of employment outlined in the Collective Bargaining Agreement (CBA) hence they are protected from unfair labor practices from their employers. The employees must receive oral notice of concerns of their behavior, written warning s from the employer, and formal letters of reprimand before the actual termination of employment can occur.