2 HSR drivers fired because of COVID-19 complications related to organ transplants: union

The union president representing HSR workers says he's infuriated after the city fired two long-standing drivers because of how COVID-19 has complicated organ transplants.

Eric Tuck, president of the Amalgamated Transit Union (ATU) Local 107, says one employee was waiting for an organ transplant. The other, he says, was about to return to work post-transplant when his specialist advised against it because of the risk of COVID-19.

Tuck says the city terminated them both due to a "frustration of contract," a move he says is morally questionable and has deteriorated the relationship between the city and the union. 

"It is unconscionable that the city is purporting to rely on frustration of contract as grounds for termination on the basis of COVID-19 complications after a successful transplant surgery left one union member immune-compromised and delayed another's ability to get a timely transplant," Tuck said in a statement.

Jen Recine, a city spokesperson, said she couldn't speak to specific details of the employee cases because they are confidential and involve private health information, but did offer more detail in general.

"In the case of employees on long-term disability (LTD), those terminations typically occur after a long period of time because there has been what is called a 'frustration of contract,'" she wrote.

She says a frustration of contract means someone is terminated with no fault to the employee or the employer.

She says it allows an employee the right to severance when the contract is "impossible to fulfil as a result of medical condition from which an employee is deemed to be totally disabled and unable to work any time in the foreseeable future."

But at least one employee says he was able to work.

'Kicking me in the teeth'

Tuck says Steven Burke, who was employed with HSR for 31 years, was one of two drivers fired. He took a medical leave in 2015 for an organ transplant to avoid certain death from an aggressive form of fatty liver disease.

Tuck says Burke received his new organ in 2017 and was set on returning to work after a complicated recovery — but specialists raised concerns about his compromised immune system amid the COVID-19 pandemic.

"In July 2020, the city dropped the proverbial bomb that stripped all hope for a normal life, notifying Burke that after 31 years' service, he was terminated due to purported frustration of contract," said Tuck, who also called the firing "morally, ethically, and legally wrong."

"To have a member treated like this with no compassion or consideration for the complications of this pandemic is insulting and disgusting."

"It truly felt like they were kicking me in the teeth when I was just on the verge of climbing out of a dark hole and claiming victory over this illness," Burke, 61, said in the statement.

"After all I had overcome, to have my career come to a grinding halt over a global pandemic that I have no control over is extremely frustrating."

Burke said in an interview on Wednesday he had approval to return to work in a limited capacity. It included the ability to drive buses, but with the pandemic, Burke asked to take on a role with fewer interactions with the public, like an inspector role. But he says the city never brought him back in because they were concerned about his immune system.

Recine said the nature of someone being on long-term disability precludes them from doing any work or work accommodations.

"We appreciate that these matters are extremely delicate and sensitive, and we handle each case individually within the legal parameters in which we are required to operate, while ensuring the utmost compassion and consideration for each employee's personal and often very difficult circumstances," she said.

Burke had no complaints on his record before he left for his transplant, the union says.

"I don't have a lot of years left, I just want to make sure I can work," Burke said.

Fired while waiting for double transplant

Tuck says Chris Markow, who has worked at HSR for a decade, was fired for similar reasons.

He has been on long-term disability since 2014 because of polycystic kidney and liver disease, a genetic condition the union says he declared when hired in 2010.

In 2018, he had both kidneys removed and has been on dialysis. Last year, he was placed on the transplant list, but the pandemic caused a backlog. Then, the union says he received notice he could get called at any time.

And then Markow says the notice of termination from the city arrived.

"I went from the highest high to the lowest low. Words couldn't describe the gut-wrenching blow to my life this letter caused. They pulled the rug out from under me, at a time when hope had returned and I could see light at the end of the tunnel," he said.

Union wants firings reversed

"The transplant was clearly prolonged by the pandemic and I was expected to pay the price because my employer refused to show compassion and understanding."

Markow says he provided the city with all the medical evidence from the specialists that clearly stated he could return to full duties post-transplant. In an interview on Wednesday while getting dialysis, he said he is expecting a transplant by June.

"They're firing me because I'm sick ... if I'm able to go back to work, I don't have a job to go back to. Where am I going to get a job at 58 with polycystic kidney disease and being a transplant patient ... without that job my future is done."

The union is fighting both firings by appealing for a reversal in both cases.

It says the city's human resource department has rejected those, leading the city to defer to an arbitration process, which the union says is "seriously delayed and backlogged due to COVID-19."

Tuck says the firings have impacted morale across the team and wants city council to intervene.

Both Markow and Burke said they both want to return to work if they can.