Stricter religious accommodations would hurt Washington patients

Tanya Albert Henry , Contributing News Writer

If a state appellate court ruling stands, Washington patients could lose access to care as hospitals and clinics stare down even bigger staffing shortages and financial burdens.

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A Washington appellate court decision sets a new standard for an employers’ “undue hardship” under the Washington Law Against Discrimination (WLAD) in the religious accommodation context. For years, the definition was anything “more than a de minimis cost.” The ruling in Suarez v. The State of Washington requires a “significant difficulty or expense” for state and private employers to not be obligated to make a religious accommodation, such as a request for time off.

The Litigation Center of the American Medical Association and State Medical Societies, the Washington State Medical Association, the American Hospital Association and the Washington State Hospital Association are urging the Washington Supreme Court to reconsider the appellate court ruling that “jeopardizes the availability of care that is crucial to the health and wellbeing of all Washingtonians.”

“The lower court’s expanded definition of ‘undue hardship’ will add more burdenfurther reduction in staff available for patient care, more demands and stress on staff trying to cover yet more shifts, increased administrative complexity, and financial expenseto a system that is already beyond capacity,” the organizations tell the state’s highest court in an amicus brief.

The case stems from a certified nursing assistant (CNA) who asked for time off for a religious function but was denied because the facility would have been left short-staffed. The CNA was fired after she didn’t show up for her shifts. She sued, saying she wasn’t accommodated under WLAD.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

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Hospitals and clinics were already facing financial burdens and staffing shortages before the COVID-19 pandemic, which exacerbated the problem. The “tripledemic” that adds RSV and influenza patients to the mix has made things increasingly difficult.

For example, the brief tells the court that in November 2022, Seattle Children’s emergency department was at 100% capacity 24 hours a day, at times increasing to 200% to 300% capacity. Meanwhile, small, rural critical access hospitals must try to cover increased labor expenses by reducing non-clinical full-time employees, while simultaneously adding to their workload as they face staffing shortages, nurse pay increases, insurer payments that don’t keep up with cost and a reluctance to reduce care capacity for their communities.

The “undue hardship” standard the appellate court ruling establishes would only make things even worse, physicians tell the court. For example, medical clinics with small staffs provide dialysis, imaging, primary care and other nonhospital-based services that reduce the number of patients needing to go to the ED. These clinics rely on staff covering for each other when determining time off.

“Clinics would be forced to close or cancel patient appointments. This in turn would further strain already over-capacity emergency departments, as patients who cannot be treated in a clinic seek care in emergency settings,” the brief says.

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The appellate court’s expansion imposes a new burden in accommodation contexts beyond leave requests, physicians tell the Washington Supreme Court. For example, vaccination and masking requirements.

With a stricter standard in place, hospitals will experience “many more unvaccinated workers and staffing shortages,” the brief says. “It will hamper health care employers’ need to account for the impacts of employees’ religious accommodation requests on third parties such as patients and co-workers, which risks devastating results.”

Also, the new definition requires hospitals and clinics to undertake a more complex analysis for each request. The brief asks: “Would closing a dialysis center for a day, or cancelling oncology patient appointments, or extending emergency room wait times by five hours be a ‘significant difficulty or expense?’ … These are the real-world questions for which the lower court provides no answer.”