Health Employment And Labor

labor and employment law for the healthcare industry

Don’t Tell Me You Love Me – Team Building Gone Wrong According to EEOC

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John M. O’Connor

John M. O’Connnor

Who knew that “Don’t Tell Me You Love Me,” the iconic rock anthem of 80’s hairband Night Ranger (YouTube video) is actually a rally song protesting religious discrimination??  On January 27, 2016, the EEOC filed a summary judgment motion in EEOC v. United Health Programs of America, No. 14-cv-3673 (E.D.N.Y. filed June 11, 2014), asking the Court to find that certain team building policies and practices implemented by the defendant employer, including a requirement that its employees tell one another “I love you,” amount to unlawful religious discrimination in violation of Title VII of the Civil Rights Act of 1964.

According to the defendant employer, the policies and procedures under attack by the EEOC are not a religion, but secular self-improvement policies and corporate wellness programs intended to enhance the workplace environment.  While acknowledging that the challenged activities are part of a belief system called Harnessing Happiness, more commonly referred to as “Onionhead,” created by the aunt of the company’s owners (a spiritual advisor who is called “Denali”), the defendant employer argues that the belief system is not a religion because it is not derived from theology, contains no spiritual text, and does not recognize a supreme being. Thus, it contends that its employees required participation in various “Onionhead” activities — such as burning candles, dimming lights at work (because demons can come through overhead lights), keeping “Onionhead” cards at their workstations (to enable them to contemplate the messages on the cards throughout the day), thanking God for their employment, and saying “I love you” to colleagues and managers — are lawful workplace policies implemented to enhance the work environment.

The EEOC disagrees.  In its summary judgment motion, the Commission argues that the “Onionhead” practices imposed on United Health Programs’ employees are “replete with religion,” in that the “Onionhead” cards speak of “universal truths” and contain iconography such as flaming chalices, halos and wings.  The EEOC alleges that United Health Programs violated Title VII’s religious discrimination prohibition when it terminated the employment of three employees who opted not to participate in the required “Onionhead” rituals.

The fact that “Onionhead” is not a true religion is not fatal to the claims as, under Title VII, religion and religious practices are defined broadly to include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Thus, the Court may conclude that “Onionhead” fits within this broad definition and that United Health Programs violated Title VII by terminating the employment of the three employees who chose not to participate.  To avoid getting into a pickle in the first place, employers should be wary of compelling their employees to participate in non-denominational “spiritual” activities as a condition of employment.

U.S. District Court Holds that FCA’s Retaliation Provision Requires “But-for” Causation

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Daniel and Nathaniel

Nathaniel M. Glasser and Daniel C. Fundakowski

Last month, in United States ex rel. Helfer v. Associated Anesthesiologists of Springfield, Ltd., No. 3:10-cv-03076 (N.D. Ill. Jan. 14, 2016), the U.S. District Court for the Central District of Illinois held that the retaliation provision of the False Claims Act (“FCA”) requires a whistleblower to show that protected activity was the “but-for” cause of the alleged adverse action.

The FCA’s retaliation provision entitles an employee to relief if he is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against . . . because of lawful acts done . . . in furtherance of an action” under the FCA.  31 U.S.C. § 3730(h).

In Helfer, the relator alleged he was discharged for contacting Medicare to report concerns regarding the way Associated Anesthesiologists billed for labor epidurals.  The company denied the accusations, contending the relator was discharged for a combination of other things, including unauthorized contacts with third parties regarding the company’s business practices.

The company moved for summary judgment, arguing “but-for” causation, rather than “mixed motive,” is the proper standard for evaluating an FCA retaliation claim.  Largely relying on the Supreme Court’s interpretation of a similar Title VII retaliation provision in University of Texas Southwestern Medical Center v. Nassar,  the court held that “because the FCA retaliation provision uses ‘because of’ and not language specific to a standard of causation, the statute requires that Dr. Helfer shows that his protected conduct was a ‘but-for’ cause of his termination.”  Despite the court’s favorable ruling with respect to the FCA retaliation standard, the court nevertheless denied the motion for summary judgment, finding a genuine issue of material fact as to the reason for the relator’s discharge.

This case represents another in what has become an emerging trend of post-Nassar decisions rejecting the “mixed motive” analysis in favor of a requirement of “but-for” causation to sustain a cause of action under the FCA’s § 3730(h) retaliation provision.  This heightened analysis should assist employers in dismissing more frivolous lawsuits at early stages of the litigation, and make it easier for employers to demonstrate that the relator would have been subject to an adverse action regardless of the FCA-protected conduct.

EEOC Addresses Rights of HIV-Positive Employees – Employment Law This Week

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One of the featured stories on Employment Law This Week is the EEOC’s recent release of two different guides on the rights of HIV-positive employees.

The first guide outlines employees’ rights under the ADA. The second guide is for health care providers with HIV-positive patients. It encourages them to advocate for their patients’ rights in the workplace. These documents are also valuable resources employers. Among other takeaways, they break down the process involved in a request for reasonable accommodation from an HIV positive employee.

View the episode below or read more about the EEOC’s new guidance in an earlier blog post.

Hospital’s Neutral Hiring Policy Sinks Nurses’ ADA Claims

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Nathaniel M. Glasser

In a matter emphasizing the importance of neutral hiring policies, the U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of a Kentucky hospital system that refused to hire two nurses who had restrictions on their professional licenses after they participated in a state-approved drug rehabilitation program.  The nurses alleged the refusal to hire decisions violated the Americans with Disabilities Act, but the Sixth Circuit held that the evidence showed the hospital had a neutral practice of denying employment to nurses with current or previous restrictions on their licenses, regardless of whether the restriction was due to the applicant’s disability or because of some other reason.

In Lopreato v Select Specialty Hospital (6th Cir 2016), No. 15-5011 (6th Cir. Jan. 29, 2016), the plaintiffs were two nurses with drug addictions who both had been terminated from another hospital after stealing narcotics for personal use.  The plaintiffs thereafter enrolled in a state-sanctioned drug rehabilitation and signed program agreements that placed restrictions on their nursing licenses.  Although the nurses later found employment with Cardinal Hill Specialty Hospital, they had to re-apply for their positions when Select Specialty Hospital-Northern Kentucky began to take over the long-term acute care hospital in which they worked.

Enforcing a practice not to hire nurses with license restrictions, Select refused to hire the plaintiffs despite their positive performance reviews from Cardinal.  Citing the Supreme Court’s decision in Raytheon v Hernandez 540 US 44 (2003), 540 U.S. 44 (2003), the appellate court concluded the neutral policy constituted a legitimate, nondiscriminatory reason to refuse to hire the nurses.  Notably, the court held, “an employer’s decision to reject an applicant because the applicant did not have a neutral characteristic which the employer requires of all employees is legitimate and nondiscriminatory, even if a rejected applicant lacks the desired characteristic because he is disabled.”

This case highlights the importance of creating and consistently applying neutral workplace policies, as doing so generally evidences a legitimate, nondiscriminatory reason to take an adverse employment action.  Thus, health care employers may implement similar policies for the protection of their patients – provided the policies are consistently applied.  In Lopreato, the Sixth Circuit left open the possibility that an argument could be made that Select’s policy disproportionately impacts drug addicts, but refused to consider that argument in this case because the plaintiffs had not previously asserted a disparate impact claim. Employers should consult with Counsel to set up an appropriate and regular review of policies to ensure that they do not have a disparate impact.

EEOC Releases New Guidance on the Rights of HIV-Positive Employees Applicable to Health Care Providers and Employers

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In December 2015, the Equal Employment Opportunity Commission (EEOC) released new guidance for job applicants and employees with HIV infection that is particularly applicable to employers in the health care industry.  This guidance is applicable not only to applicants and current employees with HIV infection, but also to physicians and other health care providers who treat individuals with HIV infection to the extent their assistance is requested in obtaining workplace accommodations.

The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” discusses rights provided under the Americans with Disabilities Act (ADA).  Although the guidance is directed to applicants and employees with HIV infection, there are key takeaways for employers.  First, the EEOC emphasizes the workplace privacy rights of those with HIV infection, but reminds individuals that in certain situations an employer may ask medical questions about their condition.  Second, HIV infection should be treated as a disability and HIV-positive individuals are protected against discrimination and harassment at work because of the condition.  Finally, those with HIV infection may have a legal right to reasonable accommodations at work, which may include altered break and work schedules, changes in supervisory methods (e.g., written instructions from a supervisor), accommodations for visual impairments, ergonomic office furniture, unpaid time off (e.g., for treatment), and reassignment to a vacant position.

The second publication, “Helping Patients with HIV Infection Who Need Accommodations at Work,” informs physicians about their HIV-positive patients’ rights to reasonable accommodations at work.  While the guidance effectively coaches health care providers to advocate for their patients’ rights to accommodation, the EEOC reminds providers that that their legal and ethical obligations are not altered by the ADA.  Thus, providers should only disclose the medical information if requested by the patient and an appropriate release is signed.  Further, providers are reminded not to overstate the need for a particular accommodation in case an alternative accommodation is necessary.

Health care entities should be aware that, in its press release regarding the guidance, the EEOC continues to take the position that HIV-positive employees, even in health care settings, should not be excluded from jobs unless they pose a “direct threat” to safety, a strict standard under the ADA.  The EEOC—following CDC guidance—has said that “HIV-positive health care workers who follow standard precautions and who, except in specified circumstances do not perform specially defined exposure-prone invasive procedures, do not pose a safety risks in their employment based on HIV infection.”  For example, says the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to patient safety based on her HIV-positive status if she follows standard precautions.

The EEOC guidance makes clear that HIV infection is a disability under the ADA.  Employers should be aware that applicants and employees have a right to privacy and, in most situations,  need not reveal the exact diagnosis of their medical illness. Employers should not unnecessarily inquire about the exact illness diagnosis if it is not needed for the purposes of determining reasonable accommodations.  Most importantly, health care employers should not use stereotypes or misinformation in evaluating patient safety implications for those employees with HIV infection.  Even in safety sensitive positions, an HIV-positive health care employee generally poses no safety risk when using standard precautions.  Health care employers should make sure that their front-line supervisors are also aware of the rights of their subordinates who may have HIV infection.

No Duty to Accommodate Medical Marijuana Use in New Mexico

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The United States District Court for the District of New Mexico recently dismissed a lawsuit filed by an employee who was fired after testing positive for marijuana despite using medical marijuana as permitted by New Mexico state law.  In finding that the employer did not violate New Mexico law or public policy, the court’s decision mirrors the holdings in similar cases from California, Colorado, Michigan, Montana, Oregon, and Washington holding that employers have no duty to accommodate medical marijuana use by employees.

In the New Mexico case, the employee applied for a position with Tractor Supply Company and disclosed his HIV/AIDS diagnosis during the interview process.  The employee further disclosed that he participated in the New Mexico Cannabis Program, authorized by the Lynn and Erin Compassionate Use Act.  After the employee was hired for the position, the employee underwent a drug test and tested positive for cannabis metabolites.  Tractor Supply Company terminated the employee on the basis of the positive drug test.

Employers—including those in health care—who wish to continue their zero tolerance policy for marijuana use likely are legally insulated in states with statutes that do not expressly require accommodation of medical marijuana use.  However, whether such policies are permissible in states such as Nevada and New York, which have state laws expressly requiring the accommodation of medical marijuana use, is less clear.  Thus, employers should continue to monitor for developments in this area of the law.

For a more in-depth analysis of medical marijuana in the workplace, please see our recent article in EBG’s Take 5 newsletter and our follow-up article in Bloomberg BNA’s Health Law Reporter.

The New Mexico case is Garcia v. Tractor Supply Company (PDF), No. 15-CV-00735 (D.N.M. Jan. 7, 2016).

NLRB OK’s Off-Duty Access Policy; KO’s Its Enforcement

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IMaxine Neuhausern a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor.  The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes an unfair labor practice. The decision addressed the policy stated in the Marina Del Rey Hospital’s employee handbook stating:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

The record before the Board established that the hospital permitted off-duty employees on premise for non-union, employment-related activities such as picking up paystubs, submit­ting scheduling requests, applying for a transfer, and at­tending social events, e.g. retirement parties and wed­ding and baby showers. On at least two occasions, however, the hospital applied the off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. The Board found that this disparate enforcement of the otherwise facially lawful constituted an unfair labor practice in violation of employees’ Section 7 rights.

While at first blush the decision appears to favor a policy permitting carve outs, as a practical matter, the problematic examples of employee off-duty conduct, e.g., picking up pay stubs, applying for and the like, that the Board found problematic point to the difficulty employers are likely to have in maintaining a no access rule with carve-outs.

New Jersey Expands And Unifies Confidentiality Privilege For Mental Healthcare Service Providers

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Every now and then a confusing knot of rules gets streamlined and untangled. That recently occurred in New Jersey, when the state’s Supreme Court adopted a new  unified Mental Health  Service Provider – Patient Privilege, to replace the state’s existing patchwork of privileges which offer varying, and sometimes inconsistent, degrees of protection to communications between mental healthcare professionals and their patients. The new privilege, codified as NJ Evidence Rule 534 (“Rule”) will go into effect on July 16, 2016.  The Rule applies to legal proceedings in New Jersey state courts and addresses when communications between patients and covered providers may be withheld from disclosure and when disclosure may be required. As a general matter, the Rule provides broad protection for the confidentiality of covered communications. New Jersey licensed healthcare professionals and their employers may wish to take note.

The new Rule applies to confidential communications between a patient and a “mental-health service provider,” specifically including, though not limited to  (1) psychologists, (2) psychiatrists and other physicians, (3) marriage and family therapists, (4) social workers (including social work interns and certified school social workers), (5) alcohol and drug counselors, (6) nurses, (7) professional counselors, associate counselors or rehabilitation counselors, (8) psychoanalysts, (9) midwives, (10) physician assistants and (11) pharmacists.

Confidential information protected from disclosure under the Rule, is not limited to information that relates solely to the patient’s condition or treatment.  Rather, the privilege extends broadly to:

Such information transmitted  between a mental-health service provider and patient in the course of treatment of, or related to, that individual’s condition of mental or emotional health, including information  obtained by an examination of the patient, that is transmitted in confidence, and is not intended to be disclosed to third persons, other than

(i) those present to further the interest of the patient in the diagnosis or treatment;

(ii)        those reasonably necessary for the transmission of the information,  including the entity through which the mental-health service provider practices; and

(iii)       persons who are participating in the diagnosis or treatment of the  patient under the direction of a mental-health service provider, including authorized  members of the patient’s family, the patient’s guardian, the patient’s conservator, and/or the patient’s personal representative.

The Rule requires mental health service providers to assert the privilege unless otherwise instructed by the patient, or as applicable, members of the patient’s family, the patient’s guardian or conservator, or the personal representative of a deceased patient.

The Rule includes more than a dozen exceptions based on existing exceptions to the privilege rules, including for example, communications relevant to a court-ordered physical, mental or emotional examination of the patient civil commitment, fitness to stand trial, and validity of a will. New to New Jersey’s evidence rules, the Rule contains an express exclusion for communications relevant to firearm applications, permits and identification cards.

The Mental Health  Service Provider – Patient Privilege is a rule of evidence, and as such, does not carry direct penalties for breach of confidentiality.  No doubt, however, it will create a standard with which covered mental health services providers will be expected to comply and which if breached could lead to repercussions, such as workplace discipline, state licensure actions, and potentially, civil action alleging breach of privacy.

Privilege and evidence rules vary from state to state.  Healthcare employers and professionals should stay up to date on the standards that apply in their states. As New Jersey’s new rule demonstrates, the rules can and sometimes do change.


DOL’s Wage Rule for Home Care Workers – Employment Law This Week

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Employment Law This Week – a new video program from Epstein Becker Green – has a story this week on how the Supreme Court has cleared the way for the Department of Labor’s home care worker wage rule.

The high court recently denied a stay of the D.C. Circuit’s decision, and the new rule extending Fair Labor Standards Act protections to most home care workers will go into effect November 12, 2015. While the Department will not begin full enforcement until January 1, 2016, the new regulation will be immediately enforceable by private individuals and attorneys.

Click above or watch on YouTube or Vimeo – or download: MP4 or WMV.


October 15: Attend Epstein Becker Green’s Workforce Management Briefing – High Stakes and High Priorities

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34th Annual Workforce Management Briefing Banner

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker Neil Cavuto, Senior Vice President, Managing Editor, and Anchor for both FOX News Channel and FOX Business Network.

Our industry-focused breakout sessions will feature panels composed of Epstein Becker Green attorneys and senior executives from major companies, discussing issues that keep employers awake at night.  From the latest National Labor Relations Board developments to data privacy and security concerns, each workshop will offer insight on how to mitigate risk and avoid costly litigation.

View the full briefing agenda here. Contact Kiirsten Lederer or Elizabeth Gannon for more information and to register.   Seats are limited.