Los Angeles, California Employment Law Blog

As part of the Patient Protection and Affordable Care Act (PPACA), enacted in March of 2010, the federal government extended whistleblower protections to those who report breakdowns in patient care, waste, abuse or fraud in health care.

The PPACA revised the Fair labor Standards Act of 1938 to include whistleblower provisions to protect health care workers. Specifically, the PPACA whistleblower protections prohibit employers from discriminating or retaliating against any employee who:

• Provides, or intends to provide, the employer, the federal government or the attorney general with information that the employee reasonably believes to be a violation of the PPACA
• Testifies, or intends to testify, about a violation of the PPACA
• Objects to or refuses to participate in any activity, policy, practice or task that the employee reasonably believed to be in violation of the PPACA

The PPACA whistleblower provisions are similar to protections for other workers that lawmakers have passed recently, such as the Consumer Products Safety Improvement Act passed in 2008 to protect retail employees.

PPACA Whistleblower Loophole

However, the whistleblower provisions only apply to alleged violations of Title I of the PPACA -- leaving a loophole that denies protection to many potential whistleblowers. Workers not covered include those providing care or involved in:

• Nursing homes
• Medicare and Children's Health Insurance Program (CHIP) expansion
• Innovative therapies or treatment
• Preventative care

If you have questions concerning the Patient Protection and Affordable Care Act or the whistleblower provisions that are contained within, please speak with an experienced attorney.

Conflicts under the Americans with Disabilities Act

In 1990 Congress passed the Americans with Disabilities Act, which was designed to prevent discrimination in everyday life against people with disabilities, and to ensure that the disabled have equal access to employment opportunities, public transportation, telecommunications, government services and physical access to buildings. Conflicts have arisen, however, when one person's disability and the employer's efforts to accommodate him or her clash with another employee's disability.

Emily Kysel's employer allowed her to bring an allergy-detection dog to work because she had a severe allergy to paprika. But controversy was sparked when the dog caused a co-worker, who was allergic to dogs, to suffer asthma attacks. Kysel was told she could no longer bring the dog to work, so she filed a complaint with the Equal Employment Opportunity Commission, asserting that the ADA required her employer to allow the dog as a reasonable accommodation for her disability.

In a case like this, one person's disability should not have priority over another person's; otherwise, the courts might have to draw up a list of which disabilities are worse than others. A resolution might have been to find an alternative way to eliminate or greatly reduce each employee's risk of exposure in the workplace, a risk that they already face in daily life.

Conflicts can also arise between the ADA and the Occupational Safety and Health Act of 1970. If an employer utilizes health screening to qualify employees for certain jobs in order to reduce possible violations of OSHA and worker's compensation insurance standards, the practice may violate the ADA's prohibition against discriminating on the basis of disability. In such instances, however, there may be no reasonable accommodation that the employer could make for a disabled employee without having to eliminate the job entirely.

In a case involving the ADA and the integrity of a sport, the United States Supreme Court ruled in favor of Casey Martin, a disabled PGA golfer who wanted to use a cart during tournaments -- a practice not afforded able-bodied golfers. While it is arguable whether the use of a cart impugned the integrity of the sport, it is at least tenable that its use did not enhance Martin's skills to such an extent that it elevated his play. In fact, Martin did not play enough to permit him to stay on the professional tour.

Many of these conflicts could be resolved if employers and public and private entities worked with the disabled to come to reasonable and mutually acceptable compromises that adhere to the spirit of the ADA and the purpose of a particular employment, while affording disabled individuals the ability to enjoy full participation, independence and self-sufficiency in all areas of life.

On May 17, 2010, a federal jury in a class action suit in Manhattan awarded 12 former female sales representatives a total of $3.4 million in damages for alleged gender discrimination by the pharmaceutical giant Novartis. The jury found that the company had discriminated against the women in terms of pay and promotion, mostly on the basis of pregnancy.

Days later, on May 19, the same jury awarded punitive damages of $250 million to 5,600 of the company's female employees, enabling those women to apply as claimants for individual awards through a special master. The award was the highest ever in an employment discrimination lawsuit.

Novartis is a multinational pharmaceutical company with headquarters in Basel, Switzerland. It had revenue of $41.5 billion in 2009, making it the sixth largest pharmaceutical company in the world. Novartis had been named by Working Mother magazine as one of the top 100 companies for the last 10 years.

The suit was brought by the women, all U.S. employees, who alleged that the company followed a pattern of discrimination against its female sales employees from 2002 through 2007.

The 12 class-action representatives maintained that they had been subjected to a hostile and sexist work environment, particularly in relation to pregnancy, by male district managers. One plaintiff testified that she had been terminated when she was seven months pregnant. Another claimed that a district manager continually showed pornography to female employees and invited them to sit on his lap. She also contended that the company was slow to investigate her allegations. The manager was apparently fired two years after the suit was filed in 2004.

Other testimony included a female employee who stated that she was encouraged to get an abortion, and another who claimed that after she had twins she was repeatedly passed over for promotions in favor of male sales representatives with inferior sales records.

The suit showed that the women in sales positions typically received an average of $105 less per month than their male counterparts during the period from 2002 to 2007. Female employees make up 52 percent of Novartis employees and 44 percent of its managers.

While Novartis has continued to maintain that it has satisfactory relations with its female employees, the suit is undoubtedly an embarrassment to its reputation and should serve as a wake-up call to its senior management to institute sensitivity training and promote better awareness of gender discrimination laws.