Health Employment And Labor

labor and employment law for the healthcare industry

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.

Epstein Becker Green’s Wage and Hour App Now Includes All 50 States and More

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Wage & Hour Guide for Employers AppWe’d like to share some news with health care industry employers: Epstein Becker Green has released a new version of its Wage & Hour Guide for Employers app, available without charge for Apple, Android, and BlackBerry devices.

Following is from our colleague Michael Kun, co-creator of the app and leader of our Wage and Hour group:

We have just updated the app, and the update is a significant one.

While the app originally included summaries of federal wage-hour laws and those for several states and the District of Columbia, the app now includes wage-hour summaries for all 50 states, as well as D.C. and Puerto Rico.

Now, more than ever, we can say that the app truly makes nationwide wage-hour information available in seconds. At a time when wage-hour litigation and agency investigations are at an all-time high, we believe the app offers an invaluable resource for employers, human resources personnel, and in-house counsel.

Key features of the updated app include:

  • New summaries of wage and hour laws and regulations are included, including 53 jurisdictions (federal, all 50 states, the District of Columbia, and Puerto Rico)
  • Available without charge for iPhoneiPad, Android, and BlackBerry devices
  • Direct feeds of EBG’s Wage & Hour Defense Blog and @ebglaw on Twitter
  • Easy sharing of content via email and social media
  • Rich media library of publications from EBG’s Wage and Hour practice
  • Expanded directory of EBG’s Wage and Hour attorneys

If you haven’t done so already, we hope you will download the free app soon.  To do so, you can use these links for iPhoneiPad, Android, and BlackBerry.

Court of Appeals Restores DOL Regulation Barring Third-Party Employers from Claiming Exemptions for Companionship and Live-In Domestic Service Workers

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Reversing a decision by the United States District Court for the District of Columbia, an August 21, 2015 decHomeHealthision by the Court of Appeals for the District of Columbia Circuit in Home Care Association of America v. Weil (pdf) has approved a regulation by the United States Department of Labor (“DOL”) extending federal minimum wage and overtime protections to home care workers and live-in domestic service employees employed by third parties.

We previously wrote about the decision by the District Court for the District of Columbia that vacated a DOL regulation that had been scheduled to go into effect January 1, 2015. The regulation would have eliminated a long-existing prior regulation and would have barred third-party employers from claiming minimum wage and overtime exemptions for “companionship” domestic service workers and live-in domestic service employees. The same court later also vacated a new, narrower definition of “companionship services.”

The D.C. Circuit thoroughly rejected the district court’s analysis and held that under the Supreme Court’s decision in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007), the question of whether to include workers paid by third parties within the scope of the statutory exemptions for companionship series and live-in domestic service employees was within the discretion of the DOL under its general grant of authority to promulgate implementation regulations.

The D.C. Circuit further found that the new, narrower construction of the statutory exemption was appropriate and consistent with a Congressional intention to include within FLSA coverage employees whose vocation is domestic service, rather than the type of assistance provided by a neighbor or an “elder sitter,” and that this construction was not arbitrary and capricious because DOL justified its shift in policy based on the changes in the industry since the prior regulation issued in 1975.

Finally, the D.C. Circuit rejected arguments that the new regulation would make home care less affordable and create an incentive to re-institutionalize the elderly and disabled, in particular relying on a lack of evidence that this had occurred in states that already had minimum wage and overtime projections for third party-employed home care workers.

Home health care providers already work on narrow margins and typically cannot recover overtime costs from the Medicare, Medicaid or other government program that pay for most of their services only at a flat hourly rate (which sometimes does not reflect recent increases in state and local minimum wages). Providers in states where the exemption was previously available will now have to absorb the costs of any overtime pay. In many cases, this will mean changing schedules to limit to the number of hours a home health care provider works  (thereby causing a reduction in the provider’s income rather than an increase) and hiring additional staff (with attendant additional administrative costs) to cover the hours that a single provider previously worked. This may also be be disruptive to the persons receiving the services, who may prefer having the same persons come every day, rather than multiple providers.

If no further review is sought, the previously vacated regulations could go into effect as early as September 21, 2015. Accordingly, home health providers should begin planning for this transition now. Note, however, that a petition for rehearing or for hearing en banc would delay effectiveness until two weeks after the petition is ruled upon. Also, if review is then sought before the Supreme Court, a stay may be sought. It is also possible that DOL will announce some type of transitional limited enforcement policy, similar to the policy it previously announced (pdf) of not bringing enforcement actions for the first six months of 2015 and exercising “prosecutorial discretion” in the next six months based on the extent to which there had been good faith efforts to bring home care programs into compliance. Home health providers should watch for DOL pronouncements in this regard.

EEOC Updates Pregnancy Discrimination Guidance

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My colleagues Nathaniel M. Glasser and Kristie-Ann M. Yamane (a Summer Associate) at Epstein Becker Green have published a Financial Services Employment Law blog post concerning recent modifications to pregnancy discrimination that will be of interest to many of our readers: “EEOC Updates Pregnancy Discrimination Guidance.”

Following is an excerpt:

In the wake of the U.S. Supreme Court’s decision in Young v. UPS, [1]  the EEOC has modified those aspects of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) that deal with disparate treatment and light duty.

Under the prior guidance, issued in 2014, the EEOC asserted that a pregnant worker could prove a violation of the Pregnancy Discrimination Act (“PDA”) simply by showing that she was “treated differently than a non-pregnant worker similar in his/her ability or inability to work.”  The 2014 guidance also took the position that an employer could not refuse to offer a pregnant worker an accommodation by relying on a policy that provides light duty only to workers injured on the job.  The Supreme Court, however, was highly critical of and rejected this interpretation of the PDA, finding that it would require employers who provide a single worker with an accommodation to provide similar accommodations to all pregnant workers, irrespective of other criteria.

 Read the full original post here.

Five EEOC Initiatives to Monitor on the Agency’s Golden Anniversary

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My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter.   In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.

  1. Religious Discrimination and Accommodation—EEOC Is Victorious in New U.S. Supreme Court Ruling
  2. Transgender Protections Under Title VII—EEOC Relies on Expanded Sex Discrimination Theories
  3. Systemic Investigations and Litigation—EEOC Gives Priority to Enforcement Initiative
  4. Narrowing the “Gender Pay Gap”—EEOC Files Suits Under the Equal Pay Act
  5. Background Checks—EEOC Seeks to Eliminate Barriers to Recruitment and Hiring

Read the Full Take 5 here.

Mayor Signs NYC Ban-the-Box Law

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On Monday, June 29, 2015, Mayor Bill de Blasio signed into law the bill passed by the New York City Council “banning-the-box.” The law goes into effect on Tuesday, October 27, 2015. As discussed in our earlier advisory, the ban-the-box movement removes from an employment application the “box” that requests criminal conviction history. New York City’s law also imposes additional requirements upon the employer when making an adverse employment decision on the basis of criminal conviction history.

Massachusetts AGO Provides Safe Harbor on New Sick Leave Law

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On May 1, 2015, we reported on proposed regulations to the Massachusetts paid sick leave law, which becomes effective on July 1, 2015.  The regulations have not yet been adopted, and in light of the uncertainty about many provisions of the law, the Massachusetts Attorney General’s Office has issued a “Safe Harbor for Employers with Existing Paid Time Off Policies.”  Under the safe harbor, any employer with a paid time off policy in existence as of May 1, 2015, which provides employees with the right to use at least 30 hours of paid time off per year, will be deemed in compliance with the new sick leave law.  The safe harbor will expire on December 31 of this year, and as of January 1, 2016, all covered employers will be required to comply with the provisions of the new law. Our November 10, 2014 Advisory summarizes the law’s provisions and requirements.

The proposed regulations to the paid sick leave law, which would clarify employer obligations under law, remain under review by the Massachusetts Attorney General and during the comment period have been subject to considerable objection.  For this reason, and because the law carries the potential for substantial penalties for non-compliance, several employers and professional organizations have urged postponement of the law’s effective date.  Notwithstanding these objections, the law’s effective date remains July 1, 2015 and employers should prepare to comply.

The AGO has also published the earned sick time notice on its website.

DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations

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My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”

Following is an excerpt:

For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public keyboard-4x3_jpgaccommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer.  The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions reveals that DOJ’s Public Accommodation Website Regulations are now not expected until April 2016.  This delay moves back the release date nearly a year from what most had previously anticipated; this summer in advance of July’s 25th Anniversary of the ADA.  While there was no public statement explaining the release, most insiders believe it has to do with the difficulty of appropriately quantifying the costs and benefits of complying with any promulgated regulations – a necessary step by DOJ for such a rulemaking.

Read the full original post here.