On October 11, 2018, the Occupational Health and Safety Administration (OSHA) issued a memorandum to clarify its position regarding whether drug testing policies and safety incentive programs would be considered violations of OSHA’s regulations. Employers may recall that, in May 2016, OSHA published a final rule that, among other requirements, prohibited employers from retaliating against employees for reporting work-related injuries or illnesses. That portion of the final rule became known as the Anti-Retaliation Rule. Almost immediately, there was confusion over which workplace safety incentive programs and post-incident drug testing policies, if any, were permissible under the final rule. OSHA originally took the position that certain programs and policies could deter employees form reporting work-related injuries and illnesses, thus violating the Anti-Retaliation Rule. OSHA has now clarified that the Anti-Retaliation Rule does not prohibit workplace safety incentive programs and post-incident drug testing.
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Retaliation
Third Circuit Holds that Medical Resident Can Bring Title IX Claim Against Private Teaching Hospital
By Kathleen Dion on
In Doe v. Mercy Catholic Med. Ctr., No. 16-1247 (March 7, 2015), the U.S. Court of Appeals for the Third Circuit held that a private teaching hospital operating a residency program can be held liable under Title IX for sex discrimination.
The plaintiff was a resident in Mercy’s accredited diagnostic radiology residency program, which is affiliated with Drexel University’s College of Medicine. She claimed that the director of Mercy’s residency program sexually harassed her, and that the harassment interfered with her medical training. The plaintiff also claimed that after she reported the director’s conduct to the human resources department, the director and other Mercy representatives subjected to her retaliatory behavior that eventually resulted in her dismissal from the program. The plaintiff filed suit against Mercy alleging, among other things, quid pro quo sexual harassment, hostile environment sexual harassment, and retaliation in violation of Title IX.
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Appeals Court Reverses ADA Jury Verdict for Pharmacist with Fear of Needles
By Stephen Aronson & Guest Contributor on
Posted in Americans With Disabilities, Employment Law
In Stevens v. Rite Aid Corp., No. 15-277 (March 21, 2017), the U.S. Court of Appeals for the Second Circuit reversed a jury award of almost $2 million that had been awarded in favor of a pharmacist who had a fear of needles and could not comply with Rite Aid’s new policy that required pharmacists to administer immunization injections to customers.
In 2011, in an effort to fill a vaccination void in the healthcare market, Rite Aid imposed a new requirement that all pharmacists must administer immunizations. Rite Aid revised its job description, requiring pharmacists to obtain valid immunization certificates and establishing immunizations as a part of the pharmacist’s essential job functions.
The plaintiff had worked for Rite Aid for 34 years. After receiving notice of the new requirement, he presented Rite Aid with a note from his treating physician stating that he suffered from trypanophobia, a fear of needles. His condition caused him to become lightheaded, pale, and feeling that he might faint. The physician stated that the plaintiff could not safely administer an injection since the likelihood that he would faint would be unsafe for both the patient and the plaintiff. Due to his trypanophobia, the plaintiff requested that Rite Aid provide him with a reasonable accommodation under the Americans with Disabilities Act. A short time later, Rite Aid terminated his employment.
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