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Court Would Allow Dismissal of Employee Who Refuses Inappropriate Medical Tests

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A list of the medical field’s worst ideas would include annual checkups, chest x-rays, and PSA tests.  All are panned in the literature and/or by the United States Preventive Services Task Force (USPSTF), because the potential harms/hazards exceed the benefits.  Alfred Ortiz, an employee of the San Antonio Fire Department, had the unbridled temerity to refuse to submit to those items, plus a bunch of other unspecified screens involving various and sundry other precious bodily fluids no doubt also panned by the USPSTF.

If your personal physician wanted to do these things to you (and most wouldn’t), you could refuse. Not so if your employer insists. A federal court has just ruled that — even if the employee wellness program is, to use a technical legal term, really stupid — you can be fired if you don’t submit to it.

And this San Antonio Fire Department program was indeed one of the dumbest. It included:

san antonio fire department

The justification was that these tests, designed for “early detection of serious medical conditions,” were needed to see if Mr. Ortiz could “perform his position’s essential duties.” However, my google search revealed no cases in which a house burned down because a fireman had an enlarged prostate.

If fire departments seriously want to test skills related to “essential duties”, why not a job-specific triathlon? They could make employees (1) run up 5 flights of stairs in a firesuit carrying a heavy hose; (2) retrieve a cat from a tree; and (3) attend a career day at a junior high school.  But don’t endanger their health to please a wellness consultant or vendor.

Partly I suspect Mr. Ortiz’ lawyer didn’t cite or even suspect the hazards of overscreening and overdiagnosis.  People who make their livings in other fields tend to assume that people who run wellness programs know the first thing about wellness, notwithstanding our 80 posts to the contrary. A plaintiff attorney overlooking the hazards of overdoctoring ends up in a tough debate on privacy-vs.-alleged job requirements, instead of a much more winnable debate on the employer’s right to gratuitously harm the employee by “playing doctor.”

Mr. Ortiz caved, and went back to work, but the ruling was quite clear that he could have been fired if he hadn’t caved.

Nonetheless, this case is now precedent, at least in the 5th Circuit. The implications?  There are no regulations, licenses, or oversight board preventing wellness vendors and employers from harming employees (at taxpayer expense this time), and now there is no case law either.

 

 


12 Comments

  1. Chris Fey says:

    Al: this if government over reach at its worst. You are right that the fireman’s attorney did not have the USPTF facts on hand, or the case would have gone the other way…and hopefully an appeal, using the facts, is in the works.

    Like

    • whynobodybelievesthenumbers says:

      It’s mind-boggling how people assume that these tests are good for you. I bet it never crossed the mind of anyone in this trial that these tests were more likely to harm the firemen than benefit them. And this was taxpayer money too. One would think the City of San Antonio would have better things to spend it on.

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  2. Marissa says:

    Firefighters already have to go through training and testing to ensure their fitness for this very tough job. I would know –my father was one.

    What San Antonio is adding to this is sheer nonsense, as you would say “even by the standards of wellness.”

    Like

  3. Doug Dame says:

    Not sure I agree with the TSW take on this.

    (1) The employee was never fired. According to the HR-BLR.com article linked in the original post, he did suffer “adverse employment action” by virtue being assigned to alternative duties and losing eligibility for overtime.

    (2) The lawsuit that was dismissed was the employee’s lawsuit, claiming discrimination and retaliation under GINA. Quote from article: “the court came to the simple conclusion that the department did not request, require, or purchase Ortiz’s genetic information or discriminate against him based on his genetic information.” (Note that this was at the appeals level, upholding the original decision by the lower court.)

    (3) The employee here was placed on alternative duties twice, the first time after he did not have the required testing done, and the second time after a physician of his choosing did the tests, but it was discovered that the required stress test was not done. (The article does not say whether the failure to have a stress test done was deliberate or inadvertent.)

    The following is stuff I found, don’t know if was part of the arguments that the trial court heard. (Per my understanding, you usually don’t get to introduce new evidence in an appeal.)

    (4) According to stats that are easily Googled, “sudden cardiac failure” is the #1 cause of on-the-job deaths of firefighters, at over 50%. This is well-known in the fire-fighting community. (I know of it, and I’ve had only a peripheral mgmt relationship with a VFD.)

    (5) The USPTF recommendation for stress testing, for adults at low risk, is rated as a “D”, with this comment, “The USPSTF recommends against screening with resting or exercise electrocardiography (ECG) for the prediction of coronary heart disease (CHD) events in asymptomatic adults at low risk for CHD events.”

    (6) However, it could be argued that due to the nature of their job, firefighters are inherently at high risk for cardiac events. For high risk adults, USPTF says “The USPSTF concludes that the current evidence is insufficient to assess the balance of benefits and harms of screening with resting or exercise ECG for the prediction of CHD events in asymptomatic adults at intermediate or high risk for CHD events.”

    * So …. not an open & shut case of overreach by the employer in this case, IMO. And certainly not a decision that sets a precedent that employers can willy-nilly fire employees for declining to participate in wellness tests.

    Liked by 1 person

    • whynobodybelievesthenumbers says:

      Some excellent points! (And I expect no less from you.) I might have misread it. I’ll take another looksee after I get done with my Day job today. Thanks for taking the time.

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      • whynobodybelievesthenumbers says:

        PS I didn’t say ALL the points were excellent. Even assuming that you have a point on the stress test, that wouldn’t explain the PSA or the chest x-ray or a myriad of other things. Still, I much appreciate your thoughtful comments.

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      • Doug Dame says:

        I agree with the concern over the effectiveness of some of those tests, most particularly the PSA, but according to the report, the plaintiff in this case eventually did the PSA and apparently everything else that was “required,” with the exception of the stress test. And so he was sanctioned on his 2nd go-round specifically in regards to just the stress test.

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      • whynobodybelievesthenumbers says:

        I just changed the header and some of the language to reflect your observations, which, I hate to say, were valid. (Note that unless wellness vendors and consultants, when we make mistakes we acknowledge them, fix them, and show our appreciation to the person who pointed them out.)

        Judges aren’t supposed to make “what if” rulings. They are supposed to confine themselves to the facts. but it is quite clear that if Mr. Ortiz hadn’t caved, he would have been fired, and the judge would have upheld that.

        So, Doug, thanks for bringing this to our attention. We do pride ourselves on accuracy and we had a major inaccuracy in here. See, Ron? It’s not that hard to apologize and correct mistakes. Of course, my income stream isn’t at stake when I do that…

        Liked by 1 person

  4. georgedburns says:

    I am shocked, shocked, to read an admission of error by Al.
    What is this world coming to when we cannot believe TSW, at first read? We must take action against the editor and proofreader who have the audacity to correct and apologize for their misdeed. That is why nobody believes the numbers any longer.

    The problem that this case presents is that now there is precedential case law which although does not allow willy-nilly firing, will surely be often cited as a warning to dissenters or objectors.

    I have yet to read either the HR-BLR reporting or the actual case filings, but is seems to not be favorable for employees. It is a case of bad lawyering making bad case law. If Mr. Ortiz caved, took the tests, then sued under GINA or other discrimination reason, the issue of “what if” should never have entered the picture and would never be under review by the Appeals Court, but. I really should not be making such a statement without having first read the actual transcripts and pleadings.

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  5. Daniel Prewitt says:

    I really doubt “whynobodybelievesthenumbers” was actually a response from Al as any kind of correction would not be in character! I also wanted to ask the question about chest x-rays – would you not consider them to be reasonable for a firefighter who may inhale a significant amount of smoke over the course of his/her duties? Also, separate from the employment law question is one of prevention (PSA aside). I can tell you that one of the most important things we all need to be doing is having preventative screenings.

    Colon Cancer, for example is typically a slow growing but deadly cancer that if found in the pre-cancerous or at stage I can be fairly easily treated. We can pretty much wipe the disease out even without a cure IF people get checked at the right time…..much like the impact on breast cancer that awareness has had. But, the survival rate is very low if found at Stage IV which if often the case. I can’t tell you how many people I talk to that have never been tested who are well above 50. How about you Al?

    Like

    • whynobodybelievesthenumbers says:

      Hi Dan, thanks as always for your comments. Two answers. First, we are not opposed to screening according to USPSTF guidelines at all. We are quite supportive, as in the colon cancer example. (By the way, I do think you’re wrong about wiping it out. The fastest-growing ones show up between screens. Still your point in general is well-taken that screening should be done according to guidelines, and that would reduce the rates.)

      As for your lung cancer question, it’s an excellent one and there was too much subtlety for me to put in the blog but here goes. In theory, you are right. However, as Yogi Berra said: “In theory, theory and practice are the same. In practice, they’re different.”

      In this case, even with the higher odds of cancer, there would be WAY Too many false-positives on these tests if done on everyone at these intervals…and false-positives often lead to painful, debilitating and hazardous biopsies. Now, if they had said: “Firefighters who also smoke X amount and who are over this age should get chest x-rays,” then I would be totally in favor. However, that isn’t what they said. Some people should get them more often, many people not at all.

      As for the apologizing, well, in the immortal words of the great philosopher Donald Trump, “I would apologize, if I had anything to apologize for.”

      Though in all seriousness, if you do find a mistake, always let us know and we acknowledge it and fix it.

      Like

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