Sunday, April 28, 2013

CT court: Public policy compels termination of nursing home employee, arbitrator's award overturned

A Connecticut appeals court has reversed a lower court and has set aside an award reinstating a certified nurse assistant in a nursing home who had been dismissed for failing to timely report suspicion of abuse.

Grievant overheard a conversation between two other employees which she believed related to possible patient abuse. The other employees declined to and peak with her about this, and she attempted on her own to investigate the issue. Unsuccessful in her first attempt, Grievant, a couple of nights later, spoke with a patient who she believed had been the subject of the overheard conversation. Grievant went home and left a voice mail message for the facility's social worker reporting what she had learned and urging the social worker to contact the patient directly.

The facility subsequently conducted an investigation of the claim of abuse, and ultimately disciplined (with suspensions and final warnings) several employees who had either been involved in the incident or had failed to report it. It terminated the employment of Grievant, noting that she had two prior final warnings in her file
  The Union (New England Health Care Employees Union, District 1199) grieved the termination and an arbitrator reduced the discipline to a 30 day suspension. The arbitrator agreed that there was a strong public policy protecting nursing home residents and that that policy included an obligation to promptly report patient abuse. Nevertheless he concluded that there were mitigating factors, including the fact that Grievant was the only employee who reported the incident (albeit in an untimely manner) and the concern that terminating an employee who did report, even if late, would create a disincentive to reporting.

The employer sought unsuccessfully to vacate the award as contrary to public policy. The appellate court reversed, concluding:

The award, requiring the reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her prior record of related disciplinary actions and two prior final warnings demonstrated her inability to meet the demands of the public policy of protection and reporting, violates that policy because, in the very words of the arbitrator, ‘‘any delay in reporting by a staff member leaves the residents at risk of possible further abuse by the alleged perpetrator; corrective action by [the plaintiff] to assure resident well-being inevitably is delayed if reporting by staff is delayed.’’

While noting that it was not holding that a single incident of patient abuse necessarily compelled termination, the Court noted that "because of a confluence of factors arising under the facts and circumstances of this case" the award mandating reinstatement violated public policy.  
The dissent maintained that the majority's opinion exceeded the appropriated scope of review and failed to give appropriate weight to the arbitrator's conclusion. The dissent noted:

The majority’s general invocation of the public policy relating to protection of patients from abuse ... has the unfortunate result of diminishing this court’s respect for and deference to the private arbitration process, and it also results in an expansion of the public policy exception from its intended narrow application in these circumstances. Taken to its logical conclusion, the majority sets forth a rule that requires an employer to terminate the employment of any employee who does not report a suspicion of elder abuse immediately, without consideration of any mitigating factors or whether the employer itself would be in violation of any public policy. ... I thus conclude that the broad expansion of this narrow exception is unwarranted, and not in the interest of employers or employees in this health care sector.

The Court's opinion can be found here, the dissent here.
Update - The Connecticut Supreme Court has reversed this decision and has upheld the arbitrator's award. The decision is discussed here.

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