doctor’s note didn’t suffice for a former Broward Health employee who in a lawsuit claims that the hospital system’s return-to-work screening policy violates the Family Medical Leave Act.
Andrea Santiago, 36, filed a lawsuit against Broward Health on April 3 after the hospital system declined her request to waive a health screening required for her to return to work after a double mastectomy.
Under Broward Health’s policy, employees who have been out of work for three or more days due to illness of any kind must be seen in the Employee Health Department for a clearance for duty, according to the Broward Health Human Resources Administration Policies and Procedure Manual.
The policy further requires employees with open wounds, sutures or staples to obtain approval from the medical director of Employee Health Services in order to return to work. The purpose of the policy, according to the manual, is to provide a safe and healthy work environment for employees, patients and visitors.
Santiago had been working as a medical social worker for Broward Health for about 2 1/2 years when she was diagnosed with breast cancer in January. She took an approved leave in February to undergo a double mastectomy, according to the lawsuit filed in the U.S. District Court’s Southern District of Florida.
When it was time for Santiago to return to work at the end of February, she asked that the required physical exam by Broward Health personnel be waived, according to the lawsuit. In lieu of the exam, she provided Broward Health with notes from her doctor stating that she had no open wounds or sutures.
In emails to Santiago’s attorney, the hospital system explained it could not waive the exam. Broward Health extended the deadline for Santiago to comply with the policy and asked that her attorney advise whether Santiago would undergo the screening and continue her employment with Broward Health.
When the new deadline passed without Santiago’s compliance, she lost her job.
When asked for comment, a Broward Health spokeswoman said in an email that the hospital system “does not comment on issues which are in active litigation.”
Santiago said her employer lacked compassion and empathy during “a very difficult time for me.”
“You wake up and your body is different,” she said in a phone interview. “I didn’t want to show [my breasts] to someone who I might see in the cafeteria.”
As a medical social worker, Santiago worked with patients, often times in geriatrics, and their families to coordinate the next step after leaving the hospital.
Santiago’s attorney, Christopher Sharp, said in a phone interview that the policy, which applies to all Broward Health employees, is over-inclusive, badly written and inconsistent. He said that as a social worker, Santiago only interacted verbally with patients and posed no risk of airborne infection.
“[Broward Health] cannot articulate a business necessity to make [Santiago] undergo this examination,” Sharp said in a phone interview.
In a March 5 letter to Sharp, Broward Health’s attorney, Michael Mattimore, said the law provides that employees may require additional medical examinations if such examinations comply with the Americans with Disabilities Act. He said the provisions regarding medical examinations of employees are applicable to all employees regardless of whether they are considered disabled under the statute.
“Due to the nature of services provided by Broward Health, ensuring a safe and healthy work environment is a business necessity that permits medical examinations under the ADA,” Mattimore said. “In addition, medical issues such as open wounds, sutures and staples present a direct threat of preventable infection both to our patients and to the employee herself.”
In a March 17 letter, Mattimore addressed Sharp’s argument that Santiago should be exempt from the physical examination because of her lack of interaction with patients.
“I have inquired into the essential job duties of Ms. Santiago and they require considerable direct therapeutic treatment with patients, families and visitors,” Mattimore said.
“[The policy] requires that all employees returning from leave due to any illness or injury — FMLA-qualifying or otherwise — must first undergo a health screening by a registered nurse or advanced registered nurse practitioner with oversight and final approval by the medical director of Employee Health Services,” he said.
Sharp said notes from Santiago’s surgeon should have been sufficient for work clearance and “the employer is not entitled to a second opinion under the [Act].”