Health Employment And Labor

labor and employment law for the healthcare industry

Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue

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My colleagues Steven M. Swirsky and Evan J. Spelfogel published a Management Memo blog post that will be of interest to many of our readers: “Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue.”

Following is an excerpt:

May 14th marked the one-month anniversary of the effective date of the NLRB’s Amended Representation Election Rules (“amended rules”).  That day, the Regional Directors for NLRB Regions 2 (New York, NY), 22 (Newark, NJ), and 29 (Brooklyn, NY) discussed their offices’ experiences processing representation petitions filed since the amended rules took effect on April 14th.

With respect to the questions of how the amended rules are actually affecting representation petitions and elections, while one month may not be representative, the data to date does offer some insights that will be of interest to employers, unions, and practitioners.  Perhaps the most interesting fact is that in these three Regional Offices, there were NO hearings held on petitions filed since the amended rules took effect.  In every case, the parties entered into a stipulated election agreement or a consent agreement, or the union withdrew its petition. Out of a total of 32 petitions filed in these regions during the one-month period, eight went to an election and 24 were withdrawn without an election.

Read the full blog post here.

Massachusetts Issues Proposed Sick Leave Regulations

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As we reported, last November, voters in Massachusetts approved a law granting Massachusetts employees the right to sick leave, starting on July 1, 2015.  The law provides paid sick leave for employers with 11 or more employees and unpaid sick leave for employees with 10 or fewer employees. While the law set forth the basics, many of the details, which have differentiated the various sick leave laws across the country, were not previously specified (e.g., minimum increments of use, frontloading, documentation).  The Massachusetts Attorney General’s Office (“AGO”) has set forth proposed regulations to guide employers in implementing the upcoming sick leave law. Some of the proposed regulations include:

  • To determine an employer’s size, the number of employees at all locations will be counted, not just those employees in Massachusetts. For example, if a company has 25 employees in New York and three employees in Massachusetts, the employer will be required to provide paid sick leave to the Massachusetts employees because the employer has 11 or more employees in total.
  • Employees may use sick leave in hourly increments. However, if the employer has to hire a replacement, and does so, the employer may charge the employee for the entire missed shift.
  • If an employer decides to pay employees for their accrued, unused sick leave at the end of the calendar year, the employer need only frontload 16 hours in the following calendar year (as opposed to all 40 hours the employee will receive that year).[1]
  • An employer may choose to frontload 40 hours of sick leave per year rather than tracking accrual rates throughout the year.
  • An employer may not request documentation about an employee’s need for leave until the employee has taken 24 consecutive hours of sick leave.
    • At that point, an employee may provide documentation in the form of a doctor’s note or a written statement evidencing the need to use sick leave.[2]
    • If leave is related to domestic violence, an employee may provide alternative documentation.
    • The employee may submit any of the above documentation in any form customarily used to communicate, including via text message, e-mail, or fax.
  • Employers must provide written notice to employees at the beginning of employment as to what constitutes a “calendar year” for accrual and use purposes.
  • Employers must post the notice of the Earned Sick Time Law in the workplace and provide a copy to all employees.

The AGO will be holding public hearings throughout the state, including one in Boston on May 18, 2015, to discuss comments to the proposed regulations. We will inform you once the regulations become effective.

[1] This is more employer-friendly than the New York City Earned Sick Time Act, which requires that 40 hours be frontloaded if an employer pays out sick leave at the end of the calendar year.

[2] The AGO will create a model form for this use, but such form has not been posted yet.

April 22 Complimentary Webinar Concerning EEOC Wellness Regulations

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To register for this complimentary webinar, please click here.

I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.

Below is a description of the webinar:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed a series of lawsuits against employers alleging that their wellness programs violated the ADA. Additionally, the EEOC has issued a number of public statements, which have concerned employers, indicating that the EEOC’s regulation of wellness programs would conflict with the regulations governing wellness programs under the Affordable Care Act (“ACA”) and jeopardize the programs currently offered to employees.

During this webinar, Epstein Becker Green attorneys will:

  • summarize the EEOC’s recently released proposed regulations
  • discuss where the EEOC’s proposed regulations are inconsistent with the rules currently in place under the ACA and the implications of the rules on wellness programs
  • examine the requests for comments issued by the EEOC and how its proposed regulations may change in the future
  • provide an analysis of what employers should still be concerned about and the implications of the proposed regulations on the EEOC’s lawsuits against employers

Who Should Attend:

  • Employers that offer, or are considering offering, wellness programs
  • Wellness providers, insurers, and administrators

To register for this complimentary webinar, please click here.

EEOC Issues Proposed Wellness Program Amendments to ADA Regulations

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My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.

Following is an excerpt:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the disability-related inquiries and medical examination provisions of the American with Disabilities Act (“ADA”). Under the ADA, employers are generally barred from making disability-related inquiries to employees or requiring employees to undergo medical examinations. There is an exception to this prohibition, however, for disability-related inquiries and medical examinations that are “voluntary.”

Click here to read the full Health Care and Life Sciences Client Alert.

NLRB Extends “Specialty Healthcare” to Acute Care Hospitals: Carves Unit into Multiple Smaller Pieces

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Ever since 1974, when the NLRB (“Board”) first took jurisdiction over health care institutions, the Board has paid particular attention to the impact of union organizing on the delivery of healthcare in this industry in general  and of acute care hospitals in particular.  When the Act was first amended in 1974, Congress stated its objective at that time was to avoid a “proliferation of bargaining units” as one method to limit the inevitable disruption created by numerous elections and negotiations while at the same time balancing employee’s opportunity to exercise its Section 7 rights to organize and collectively bargain.

Consistent with this goal, in 1987, the Board instituted a Rulemaking Procedure to streamline the organizing and collective bargaining process in the Health Care Industry and instituted the Health Care Rule, 29 C.F.R. Sect. 130, which sets forth the 8 appropriate units for acute care hospitals.

Since then, the original goal of “wall to wall” units and “non-proliferation” of bargaining units in the healthcare industry have continued to deteriorate.  In 2011, for example, the Board, reversing years of precedent, held that a union could organize unrepresented residual employees of an existing bargaining unit in a nursing home.  Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011).

Most recently, Region 13 (Chicago, Illinois) of the Board has further extended a union’s ability to organize residual unrepresented units of employees in an existing non-professional bargaining unit to Acute Care Hospitals.  The Region ruled that the Health Care Rule did not prevent it from directing a self determination election in each of four voting groups to determine whether to add these sub-units of unrepresented non-professional employees to an existing non-conforming unit (i.e. not one of the eight units identified in the Health Care Rule).  Rush University Medical Center and Local 743 International Brotherhood of Teamsters, (13-RC-143495, 13-RC-143497; 13-RC-143510).  (February 23, 2014).

Each of the elections would inevitably follow separate campaigns, and, if successful, would generate additional collective bargaining negotiations dealing with these units of employees.  On March 9, 2015, Rush University Medical Center filed a Request for Review of the Region’s Decision and Direction of Election.

Background

Rush is an acute care teaching hospital.  Since 1967, the Union has represented a unit primarily of non-professional employees.  This bargaining unit has been subject to several collective bargaining agreements (“CBA”).  The current CBA expires in 2016.

Prior to the most recent petition, the Union tried unsuccessfully to organize a wall-to-wall bargaining unit of all non-professional employees. After two failed attempts, it instituted a new approach in 2014 by seeking to represent a single job classification and won the election relying on a decision which held that even an acute care hospital did not have to conform to the Health Care Rule in allowing self-determination elections to add unrepresented employees to an existing non-conforming unit that pre-dated the Board’s Health Care Rule.  St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011).  In doing so, the Board also rejected Rush’s position that Specialty Healthcare did not apply to acute care hospitals under these circumstances.  On August 27, 2014, in an unpublished Order, the Board denied Rush’s Request to Review this Decision and Direction of Election (13-RC-132042)  In a footnote, however, Members Miscimarra and Johnson indicated that they would have granted review for the sole purpose of allowing the Board to review the St. Vincent Decision.  Thereafter, the Union won the election.  After Rush refused to recognize this consolidated unit, the Board ruled that Rush had unlawfully refused to bargain with the Union.  See the Board’s decision and Order entered on February 27, 2015.  (Case 13-CA-139088, 362 N.L.R.B. No. 23.)  On March 9, 2005, Rush filed a Petition for Review in the Court of Appeals for the District of Columbia.  Rush University Medical Center and National Labor Relations Boards, No. 15-1050 (CA DC, March 9, 2015).

A week after the election that ultimately led to Rush’s Petition for Review, the Union attempted to organize additional selected job classifications to the same unit.  The Regional Director of Region 13 dismissed that petition on the grounds that the petition for employees were not an “identifiable, distinct segment.”

Three weeks later, the Union filed three additional petitions with the Regional Director.  Thereafter, the Regional Director granted that petition and issued its Decision and Direction of Election in Rush University Medical Center Decision and Direction of Election decided on February 23rd, 2015.  (Cases 13-RC-143495; 13-RC-143497; 13-RC-143510).

While the Petition for Review of the Refusal to Bargaining Order is pending before the DC Circuit, we want to address the February 23rd Decision and Direction of Election, issued by Region 13 which involves the same bargaining unit, covering many of the same issues. The Region’s February 23rd Decision and Direction of Elections may eventually become part of that Review before the DC Circuit.

Rush University Medical Center Decision and Direction of Election

In the three petitions, the Union sought three voting groups from parts of an unrepresented group of employees to determine if they should be included in an existing non-conforming bargaining unit.  The Union argued that each of the groups was sufficiently identifiable, distinguishable and distinct so as to constitute three appropriate voting groups.  Rush argued that the only appropriate voting group that has a community of interest with the existing represented bargaining unit was the entire residual group of unrepresented non-professional employees.  In short, Rush said that one election, not several, was consistent with the purpose of  the Health Rule which was to streamline the process and minimize disruption to health care in the hospital.

In its Decision and Direction of Election, the Regional Director gave the Union more than it requested by ordering four elections, three of which were not even units that the Union sought.

The Regional Director rejected Rush’s argument that Board regulations mandate that the Health Care Rule should not apply to acute care hospitals.  Rush’s argument was based on Section C of the Health Care Rule which states that, where there are non-conforming units in acute care hospitals and a petition is filed seeking additional units, the Board is mandated to find appropriate units that comport insofar as practicable with the 8 units set forth in the Health Care Rule.  (29 C.F.R., Section 130 et al.)

Conclusion

By refusing to order an election in a wall-to-wall unit, which covered about 67 of the 680 unrepresented non-professional employees at the Hospital, the Region continues to create an environment of unending elections.  The Region’s Decision follows the same rationale as the prior petition that is now pending review by the DC Circuit Board.  The current approach seems inconsistent with the Board’s long held view, supported by Congress, that acute care hospitals are entitled to a special protected status which was meant to streamline the organizing and collective bargaining in acute care hospitals and to minimize disruption that inevitably results in numerous campaigns.

What makes these matters more troubling is that, with the adoption of the impending rules changes regarding “quickie” elections, set to take effect on April 14, 2015, there will be very limited opportunity to review voter eligibility issues.

Both the DC Circuit’s decision and the outcome of Region 13’s most recent Decision and Direction of Election are very important to follow, since if the Board’s position is applicable it will result in sweeping changes to union strategies in organizing acute care hospitals and to the application of the Health Care Rule.  We will keep you posted about the progress of these cases.

NLRB Issues Critical Guidance On Employer Handbooks, Rules and Policies, Including “Approved” Language

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My colleagues Steven M. Swirsky and Adam C. Abrahms published a Management Memo blog post that will be of interest to many of our readers: “NLRB Issues Critical Guidance on Employer Handbooks, Rules and Policies Including “Approved” Language.”

Following is an excerpt:

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued General Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

Because the Office of the General Counsel investigates unfair labor practice charges and the NLRB’s Regional Directors act on behalf of the General Counsel when they determine whether a charge has legal merit, the memo is meaningful to all employers and offers important guidance as to what language and policies are likely to be found to interfere with employees’ rights under the Act, and what type of language the NLRB will find does not interfere and may be lawfully maintained, so long as it is consistently and non-discriminatorily applied and enforced.

Read the full blog post here.

Five Steps Toward Boosting Employee Safety and Avoiding OSHA Citations

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Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplaceand avoid costly OSHA citations.

Following is an excerpt:Take 5 banner

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:

  1. Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
  2. Create a Strong Safety Culture
  3. Ensure That Safety and Health Documentation Is Current and Well Communicated
  4. Train Employees in Safety and Health, Regularly and Comprehensively
  5. Protect Contractors and Temporary Workers, Too

Click here to read the full Take 5 online.

Five Health Care Developments Important to Employers

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Our colleagues Adam C. Solander, August Emil Huelle, Stuart M. Gerson, René Y. Quashie, Amy F. Lerman, Frank C. Morris, Jr., Kevin J. Ryan, and Griffin W. Mulcahey contributed to Epstein Becker Green’s recent issue of Take 5 newsletter.   In this special edition, we address important health care issues confronting health care employers:

  1. Potential ACA Changes Impacting Health Care Employers Under the New Congress
  2. Pending Supreme Court Cases Involving the Affordable Care Act
  3. Telemedicine and Employers: The New Frontier
  4. Wellness Programs Under EEOC Attack—What to Do Now
  5. Employer-Sponsored, On-Site Health Care

Read the full newsletter here.

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants

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Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to healthcare employers.

On February 24, 2015, the Department of Homeland Security (DHS) issued a final rule that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. H-4 spouses who fit the eligibility criteria will be able to apply for employment authorization starting on May 26, 2015.

Read the full Client Alert here.

Key Issues Facing Places of Public Accommodation at the 25th Anniversary of the ADA

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Our colleague Joshua A. Stein authored Epstein Becker Green’s recent issue of its Take 5 newsletter.   In this special edition, Josh focuses on the 25th Anniversary of the ADA and recent developments and future trends under Title III of the ADA. 

  1. Website Accessibility
  2. Accessible Point-of-Sale Devices and Other Touchscreen Technology
  3. Movie Theater Captioning & Audio (Narrative) Description
  4. The Availability of Sign Language Interpreters at Health Care Facilities
  5. “Drive By” Design/Construction Lawsuits

Read the full newsletter here.