Health Employment And Labor

labor and employment law for the healthcare industry

Sleeping on the Job Disqualifies Residential Counselor from Unemployment

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Maxine Neuhauser

Maxine Neuhauser

In an unpublished decision issued July 22, 2016, the New Jersey Appellate Division ruled that an overnight residential counselor for developmentally disabled adults was properly disqualified from unemployment because of “severe misconduct” after having been found sleeping on the job. In affirming the Division of Unemployment’s denial of benefits, the court noted that this was the employee’s second documented violation “of his employer’s most basic rule: stay awake.” The decision, James MacIsaac v. Board of Review and Center for Innovative Family Achievements, Inc. serves to remind health care employers of the importance of job descriptions and performance documentation, particularly with regard to patient care and safety.

Claimant MacIsaac’s  job description, which he admitted having received, included the requirement to be “alert for … [residents’] needs during the night, including therapeutic intervention and crisis management.” Nine months after his hire, MacIsaac was issued a corrective action notice and final warning for sleeping on the job. Two months later, a co-worker found McIsaac asleep on his shift again and reported it to management. He was fired three days later.

In New Jersey, severe misconduct disqualifying an employee from unemployment benefits includes “repeated violations of an employer’s rule or policy” N.J.S.A. 43:21-5 (b). The Appellate Division has interpreted this criterion “as requiring acts done intentionally, deliberately, and with malice.”

In these circumstance, and relying on the documentation, as well as testimony of McIsaac’s supervisors, the Division of Unemployment, found that McIsaac’s:

behavior by falling asleep during working hours jeopardized the safety and well-being of developmentally disabled individuals [who] were under his care. Hence, the evidence amply supports that the claimant’s conduct by failing to take steps to avoid falling asleep during his shift, was intentional, deliberate and malicious and constitutes severe misconduct.

The Appellate Division agreed.

Rule Implementing ACA’s Nondiscrimination Provisions Goes Into Effect

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Nathaniel M. Glasser

Nathaniel M. Glasser

On July 18, 2016, the final rule implementing Section 1557 of the Affordable Care Act (“ACA”) went into effect.   Section 1557 prohibits health care providers and other covered entities from refusing to treat individuals or otherwise discriminating on the basis of race, color, national origin, sex, age, or disability in any health program or activity that receives federal financial assistance or is administered by an executive agency.

While the rule does not apply to employment, it derives many of its standards from existing federal civil rights laws and the federal government’s current interpretations of those laws.  Covered entities (which include, for example, hospitals, health clinics, health insurance programs, community health practices, physician’s practices, and home health care agencies) should be particularly aware of the protections granted to individuals with these protected characteristics:

  • Sex – Under the rule, prohibited sex discrimination includes differential treatment based upon pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping and gender identity. Covered entities should be particularly aware that they must treat individuals consistent with their gender identity; they cannot deny or limit sex-specific health care just because the individual seeking such services identifies as belonging to another gender; and they cannot categorically exclude coverage for health care services related to gender transition.
  • National Origin – Covered entities must take “reasonable steps” – which may include providing language assistance services such as oral language assistance or written translation – to provide “meaningful access” to individuals with limited English proficiency.
  • Disability – Covered entities must take “appropriate steps” to ensure that communications with individuals with disabilities are as effective as communications with others; make all programs provided through electronic and information technology accessible, unless doing so would impose financial or administrative burdens or fundamentally alter the program; and, in most instances, comply with the 2010 Americans with Disabilities Act Standards for Accessible Design when constructing or altering physical facilities.

Now that the final rule has gone into effect, a covered entity has 90 days to post various notices for beneficiaries, enrollees, applicants, and members of the public.  The primary notice requires the covered entity to state its compliance with Section 1557 and the availability of the various accommodations under the rule.  The Director of the Office for Civil Rights of the U.S. Department of Health and Human Services has made available a sample notice that covers the information required by this notice, but covered entities are advised to work with counsel to ensure they are in compliance with the rule.  In addition, covered entities must post a nondiscrimination statement, and any tagline (i.e., short statement indicating the availability of language assistance services) must be posted in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant state(s) (sample translated resources may be found here).  Again, covered entities are advised to work with counsel to ensure compliance with these notice and posting requirements.

NLRB Multiplies Impact of Expanded Joint Employer Test: Requires Bargaining in Combined Units Across Multiple Employers

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Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Drops Other Shoe on Temporary/Contract Employee Relationships: Ruling Will Require Bargaining In Combined Units Including Employees of Multiple Employers – Greatly Multiplies Impact of BFI Expanded Joint Employer Test.”

Following is an excerpt:

The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB #39 (2016) that it will now conduct representation elections and require collective bargaining in single combined units composed of what it refers to as “solely employed employees” and “jointly employed employees,” meaning that two separate employers will be required to join together to bargain over such employees’ terms and conditions of employment.” …

The potential for confusion and uncertainty is enormous. In an attempt to minimize these concerns, the Board majority stated that the so-called user employer’s bargaining obligations will be limited to those of such workers’ terms and conditions that it possesses “the authority to control.”

Read the full post here.

U.S. Supreme Court Declines to Review DOL Home Care Rule

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On Monday, June 27, 2016, the U.S. Supreme Court declined to review a D.C. Circuit Court of Appeals decision upholding the new U.S. Department of Labor’s (DOL) requirement that home care providers pay the federal minimum wage and overtime to home care workers.  As we previously discussed, on August 21, 2015, the D.C. Circuit in Home Care Association of America v. Weil affirmed the validity of the Home Care Final Rule, which eliminated a long-existing prior regulation and barred third-party employers from claiming minimum wage and overtime exemptions for home care workers.

The U.S. Supreme Court’s decision not to grant review ends any hope that home care providers had that the implementation of the new regulation might be reversed. Accordingly, all home care providers should make sure that they are paying home care workers at least the federal minimum wage and overtime as well as any additional amounts required under state and local laws. Because Medicare, Medicaid and other government programs typically pay only at a flat hourly rate for home care services, providers will be forced to absorb the costs of any overtime or limit the number of hours home care providers work to avoid overtime costs.

DC OHR Publishes Best Practices Guide Regarding Transgender Workers

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The District of Columbia Office of Human Rights recently partnered with the National LGBTQ Task Force to publish a resource guide, “Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers” (the “Guide”), designed to support employers in creating workplace and hiring policies that prevent discrimination against transgender and gender-nonconforming individuals. The guide is meant to lay the framework for building a culture of inclusion in the workplace that goes beyond legal obligations.

The suggested best practices include ensuring managers and coworkers use the names and pronouns preferred by transgender employees, maintaining the confidentiality of employees’ gender identity, implementing gender-neutral dress codes, providing access to restroom facilities corresponding to employees’ gender identity, and building an environment in which harassment or off-color comments are not tolerated.

The Guide emphasizes communication between employers and their transgender or gender-nonconforming employees and applicants so that the employer may understand what transgender employees believe a safe and inclusive workplace should look like and respond accordingly.  Recognizing that each individual has different needs, employers are encouraged to work with transitioning employees to develop a plan for them to transition in the workplace.  That said, transgender employees are not expected to shoulder the responsibility of educating coworkers or of ensuring their comfort.  Particularly because DC law prohibits discrimination based on gender identity or expression, employers should establish clear rules requiring professional demeanor, prohibiting transphobic and other harassing behavior, and prompting quick responses to any violations.

Following DC regulations, the Guide also instructs employers to provide access to restrooms and other gender-specific facilities consistent with employees’ gender identity or expression. Consistent with guidance from the EEOC and OSHA, transgender employees should never be required to use a separate gender-neutral facility – even if a cisgender employee expresses discomfort about sharing a gendered facility with a transgendered coworker.  In that case, the cisgender employee should be offered the use of a separate facility.

While the Guide has particular applicability for employers that operate in the District of Columbia, all employers should take note, as the recommended best practices are consistent with the way federal agencies are interpreting and enforcing federal law.

Seventh Circuit Court of Appeals Sides with NLRB on Class Action Waivers and Mandatory Arbitration

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “Federal Appeals Court Sides with NLRB – Holds Arbitration Agreement and Class Action Waiver Violates Employee Rights and Unenforceable.

Following is an excerpt:

The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration agreement that it required all of its workers to sign, requiring them to bring any wage and hour claims that they have against the company in individual arbitrations “violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal Arbitration Act FAA).” …

The decision of the Seventh Circuit, finding that the Board’s view was not inconsistent with the FAA, sets the ground for continued uncertainty as employers wrestle with the issue.  Clearly, the question is one that is likely to remain open until such time as the Supreme Court agrees to consider the divergent views, or the Board, assuming a new majority appointed by a different President, reevaluates its own position.

Read the full post here.

Update on DOJ Website Accessibility Regulations and Mobile Accessibility: Employer Considerations

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Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Medicaid-Funded Providers Beware! The DOL’s Time Limited Non-Enforcement Policy Does Not Apply to Private Causes of Action

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Maxine Neuhauser

Maxine Neuhauser

In conjunction with unveiling its Final Overtime Rule, the DOL announced a Time Limited Non-Enforcement Policy (“Policy”) for providers of Medicaid-funded services for individuals with intellectual or developmental disabilities in residential homes and facilities with 15 or fewer beds. Under the Policy, from December 1, 2016, to March 17, 2019, the DOL will not enforce the updated salary threshold of $913 per week for this subset of employers.

The Policy applies only to DOL enforcement actions. The FLSA, however, provides employees with the right to bring a private cause of action.  The Policy, which does not change the effective date of the rule for Medicaid-funded employers, provides no protection from such lawsuits (including class actions) by employees who have been paid less than the updated salary threshold.

Thus, Medicaid-funded employers “protected” by the Policy, will have the same legal obligation to comply with the new salary threshold as of December 1 as every other employer and back pay liability will begin accruing as of that date.

The statute of limitations for FLSA violations is 2 years, unless the violation is willful, in which case the statute of limitation is 3 years.  Keep in mind that the FLSA provides double damages for private litigants and also attorneys’ fees and costs.  Accordingly, employees whose employers misclassify and underpay them in reliance on the Policy, may be incentivized to wait to file suit until after March 17, 2019 – when their potential recovery will be the greatest.

As such,  the Policy does virtually nothing to provide relief to Medicaid-funded employers, who will remain between a rock (the DOL’s higher salary threshold) and a hard place (Medicaid contracts that contain no mechanism for additional funding to meet new salary obligations) – and arguably, will lull employers into a false sense of security that could prove quite expensive.

Employers: DOL Final White Collar Exemption Rule Takes Effect on December 1, 2016

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Our colleagues Jeffrey Ruzal and Michael Kun at Epstein Becker Green have a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the health care industry: “DOL Final White Collar Exemption Rule to Take Effect on December 1, 2016.”

Following is an excerpt:

Nearly a year after the Department of Labor (“DOL”) issued its Notice of Proposed Rulemaking to address an increase in the minimum salary for white collar exemptions, the DOL has announced its final rule, to take effect on December 1, 2016. …

According to the DOL’s Fact Sheet, the final rule will also do the following:

  • The total annual compensation requirement for “highly compensated employees” subject to a minimal duties test will increase from the current level of $100,000 to $134,004, which represents the 90th percentile of full-time salaried workers nationally.
  • The salary threshold for the executive, administrative, professional, and highly compensated employee exemptions will automatically update every three years to “ensure that they continue to provide useful and effective tests for exemption.”
  • The salary basis test will be amended to allow employers to use non-discretionary bonuses and incentive payments, such as commissions, to satisfy up to 10 percent of the salary threshold.
  • The final rule does not in any way change the current duties tests. …

With the benefit of more than six months until the final rule takes effect, employers should not delay in auditing their workforces to identify any employees currently treated as exempt who will not meet the new salary threshold. For such persons, employers will need to determine whether to increase workers’ salaries or convert them to non-exempt.

Read the full post here.

NLRB May Make It Harder for Employees to Decertify Unions

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Looks to Make It Harder for Employees to Decertify Unions.”

Following is an excerpt:

National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be represented by a union to do so.  Under long standing case law, an employer has had the right to unilaterally withdraw recognition from a union when there is objective evidence that a majority of the employees in a bargaining unit no longer want the union to represent them. …

An employer faced with evidence that a majority of its employees no longer wish to be represented by their union has always faced a difficult choice – whether to petition for an election or to respect its employees’ request and take the risk of charges and litigation by immediately withdrawing recognition. Clear understanding of the law and facts, as well as the potential consequences of each course of action has always been critical.  By issuing this Memo and announcing his goal, the stakes have clearly been raised, and the right of employees to decide—perhaps the ultimate purpose of the National Labor Relations Act—has been placed at serious risk.

Read the full post here.