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Hospital worker denied request to work in ‘non-Covid’ unit beats motion to dismiss

By Marjorie Johnson, J.D.

A hospital employee defeated a motion to dismiss her ADA claims asserting she was denied her request to be assigned to “non-Covid” work areas as a reasonable accommodation for disabilities that placed her at a higher risk of serious COVID-19 complications. A federal district court in Alabama ruled that although the hospital argued that her request was not reasonable since it was not “physically possible” to keep her “from potential exposure to Covid positive coworkers or patients,” she did not assert that she sought to only be assigned to departments where there was no chance of COVID-19 exposure. Rather, she claimed that she asked to be assigned to an available “non-Covid floor” or “non-Covid department” where the risks of COVID-19 exposure were lower, even if not non-existent (Chambers v. The Houston County Health Care Authority, September 20, 2021, Marks, E.).

Higher risk for COVID-19. In 2018, the employee began working for the hospital as a mental health technician in the behavioral medicine unit (BMU). She suffered from anxiety, anemia, insomnia, and sarcoidosis (a disease characterized by the growth of tiny collections of inflammatory cells in an individual’s body, most commonly the lungs and lymph nodes). These physical and mental impairments substantially limited her major life activities and also placed her at a higher risk of serious complications if she contracted COVID-19.

Granted request for “non-Covid floor.” Due to the COVID-19 outbreak in March 2020, the hospital began to furlough or reassign employees to different departments throughout the hospital. The employee asked her supervisor that she be assigned to “non-Covid floors” as an accommodation for her disabilities and the attendant risks associated with COVID-19. Granting her request, the supervisor placed her on a “non-Covid floor.”

New scheduling system. About three weeks later, the hospital implemented a “labor pool” comprised of all available positions that were to be filled each day. Under the new system, staff reported to the scheduling coordinator at the beginning of each shift for their job assignments. Because the employee’s first assignment was in the ER with COVID-19 patients, she requested a different location and was assigned to the cancer center, which she claimed was a “non-Covid department.”

Though the employee also reminded her supervisor about her request for an accommodation to work in available departments on “non-Covid floors,” she was repeatedly assigned to work in departments with COVID-19 patients. On May 1, 2020, she was again assigned to the ER and tried to call her supervisor to ask if there were other available positions that day in “non-Covid departments,” but the supervisor refused to take or return her calls. She then spoke to the scheduling coordinator and was re-assigned to work at the information desk, which was a “non-Covid department.”

Her supervisor subsequently told her that she could not return to the BMU and needed to continue to report to the labor pool, even though at least four coworkers were allegedly allowed to continue working in the “non-Covid departments.” Around the same time, she received a new work schedule that changed her hours and required her to work on May 10. She informed the scheduling coordinator that she couldn’t work that day since it was not included on her original schedule and thus she didn’t have childcare. She was subsequently terminated for being absent.

Qualified individual? Declining to dismiss the employee’s failure-to-accommodate and disability-bias claims, the court rejected the hospital’s contention that she was not a qualified individual under the ADA. In particular, the hospital argued that her requested accommodation was not reasonable since it was not “physically possible” to keep her “from potential exposure to Covid positive coworkers or patients.” It also claimed that she was “requesting to work away from any potential Covid patients,” which “is not a reasonable accommodation for a hospital employee during a pandemic.” Finally, the hospital asserted that the requested accommodation was not reasonable because she essentially alleged that she “cannot work in the hospital itself because she might be exposed to Covid,” and if she “cannot be in the hospital, she cannot perform her essential duties.”

Sought lower risk, not no risk. Significantly, the hospital s argument relied on an its own interpretation of the employee’s allegations and did not view the facts and reasonable inferences in the light most favorable to her. She did not assert that she requested for her assignments to be in departments where there was no chance of COVID19 exposure. Rather, she alleged that she requested to be assigned to an available “non-Covid floor” or “non-Covid department” where the risks of COVID-19 exposure were lower, even if not non-existent. At the motion to dismiss stage, the court was required to accept as true her allegations that there were “non-Covid floors” or “departments” available and the reasonable inference that those floors and departments did not have known COVID-19 patients. Accordingly, the hospital’s assertion that the requested accommodation was not reasonable because it was “not physically possible” failed.

Additionally, the hospital’s argument that the requested accommodation would not allow the employee to perform her essential job duties because she could not be in the hospital may be appropriate for a summary judgment motion but was unavailing at the pleading stage. She did not allege that she could not work in the hospital at all or that she requested not to be in the hospital. Indeed, she identified multiple “non-Covid departments” where she could work and at times had been scheduled, including the cancer center and the information desk.