Health Employment And Labor

labor and employment law for the healthcare industry

DOL Releases New Poster and Employer’s Guide to FMLA

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Health care employers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).

New FMLA Poster

The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL, however, the February 2013 version of the FMLA poster can continue to be used to fulfill the FMLA’s posting requirement.

The Employer’s Guide to The Family and Medical Leave Act

According to the DOL, the Guide is intended to provide employers with “essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.” The Guide reviews issues in chronological order, beginning with a discussion of whether an employer is covered under the FMLA, all the way through an employee’s return to work after taking FMLA leave. The Guide includes helpful “Did You Know?” sections that shed light on some of the lesser-known provisions of the FMLA. The Guide also includes hyperlinks to the DOL website and visual aids to improve the reader’s experience. Overall the Guide helps navigating the complex FMLA process; however, it does not provide any guidance beyond the existing regulations.

NLRB Argues “Misclassification” of Independent Contractors Is Unfair Labor Practice

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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 Argues ‘Misclassification’ as an Independent Contractor Is Unfair Labor Practice.”

Following is an excerpt:

In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the “Act”) for an employer to misclassify an employee as an independent contractor. …

The issuance of the complaint in this case comes less than a month after the Board’s General Counsel issued General Counsel Memorandum 16-01, Mandatory Submissions to Advice, identifying the types of cases that reflected “matters that involve General Counsel initiatives and/or priority areas of the law and labor policy.”  Among the top priorities are “Cases involving the employment status of workers in the on-demand economy,” and “Cases involving the question of whether the misclassification of employees as independent contractors,” which as reflected in the IBT complaint the General Counsel contends violates Section 8(a)(1) of the Act.

Read the full post here.

Accessible Technology Claims Are Not Going Away: Recent Decisions Under ADA

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Our colleague Joshua A. Stein, attorney at Epstein Becker Green, has 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: “Recent Decisions Reinforce That Accessible Technology Claims Are Not Going Away.”

Following is an excerpt:

As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (e.g., point of sale devices, beverage dispensers, check-in kiosks) accessibility is often overlooked because of the lack of specific federal standards in most contexts. The two recent decisions discussed below – one in New York and the other in California – do just that.

Read the full post here.

New Online Resource Can Help Employers Make Their eRecruiting Technologies Accessible to All Job Seekers

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Our colleague Frank C. Morris, Jr., attorney at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “New Online Recruiting Accessibility Tool Could Help Forestall ADA Claims by Applicants With Disabilities.”

Following is an excerpt:

In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online technologies for seeking positions can prove problematic. For example, some recruiting technologies and web-based job applications may not work for individuals with disabilities who use screen readers to access information on the web. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) recently announced the launch of “TalentWorks.”

Read the full post here.

Employers: Caregivers Will Be Protected Under New York City’s Human Rights Law

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Our colleagues Peter M. Panken, Nancy L. Gunzenhauser, and Marc-Joseph Gansah have a post on the Retail Labor and Employment Blog that will be of interest to many of our readers in the health care industry: “Employers Should Care About This: New York City’s Amendment on Caregiver Discrimination.”

Following is an excerpt:

The New York City’s Human Rights law (“NYCHRL”) prohibits employment discrimination against specified protected classes of employees and applicants including:

race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, partnership status, any lawful source of income, status as a victim of domestic violence or status as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person or conviction or arrest record.

If this list wasn’t long enough, on May 4, 2016, NYCHRL will add “caregivers” to the protected classes including, anyone who provides ongoing medical  or “daily living” care for a minor, any disabled relative or disabled non-relative who lives in the caregiver’s household. …

Read the full post here.

Respiratory Protection Essentials: Preparing Health Care Employees for the Next Pandemic

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Valerie N. Butera

Valerie N. Butera

The Occupational Safety and Health Administration (“OSHA”) recognizes that the health care industry is among the most dangerous in the United States (see related story).  Health care employees are more likely to be exposed to various infectious respiratory illnesses spread through airborne and droplet routes, such as tuberculosis, influenza, and pandemics.  Employees who work in or near areas where there are patients suspected of having a disease that can be spread by airborne transmission should be using proper respiratory protection to minimize exposure of airborne diseases.

In March 2016, the National Institute for Occupational Safety and Health (“NIOSH”) published the results of a multi-year surveillance study examining the efficacy of respirator use in health care facilities where airborne transmission of diseases is likely.  The findings of the study are alarming – evidence collected during the study indicated gaps in hospitals’ respiratory protection policies and wide-spread failure by health care employees to use respirators correctly, even in hospitals with effective respiratory protection programs.  More specifically, the NIOSH study revealed that many employees were confused about when to use a respirator and how to properly use one and opted to simply use a surgical mask for protection instead.  But respirators and surgical masks are designed to protect against very different hazards.  Whereas a surgical mask protects patients from an employee’s respiratory secretions and protects employees against large-droplet splashes or spray of bodily fluids from patients, a respirator is designed to protect employees by providing a tight seal against the skin and filtering out a wide size range of airborne particles.

The study also found that a number of employees wore ill-fitting respirators.  To be effective, the wearer of a respirator must wear one that minimizes air leakage into the facepiece.  OSHA regulations require respirator fit testing before an employee is permitted to wear a respirator.  Because the fit of a respirator depends on a number of different factors, such as face shape, employers should provide a variety of models and sizes to try during the fit testing process.  Fit testing must be repeated annually, when a different respirator must be used, and where there has been a change in the employee’s facial structure such as extreme weight loss or dental work.

Finally, about 50% of the hospitals studied were deemed to have ineffective respiratory protection programs.  But even where good programs were in place, many employees used improper practices, including improper strap placement, failing to perform a user seal check, and improper donning and doffing of the respirator.

So how can health care employers correct this issue before tuberculosis or the next pandemic hits?  Employers should ensure that:

  • their current respiratory protection policy is compliant with OSHA regulations, CDC guidance, and any additional public health requirements in their jurisdiction;
  • all employees working in areas where they may exposed to airborne illnesses have been timely fit-tested for a respirator and understand how and when to use it;
  • training on respirator use, fit, and how to properly don and doff the respirator has been provided and periodic refresher training scheduled;
  • employees check their respirators regularly and know to immediately report to management should the respirator begin to deteriorate, fail to function properly, or no longer fit well; and
  • employees receive new fit tests and respirators as needed.

These simple steps will help ensure the health and safety of employees and patients when the next airborne infectious disease infects your hospital.

Recent Federal Decisions Support Viability of Transgender Discrimination Claims

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Nathaniel M. Glasser

Nathaniel M. Glasser

North Carolina made waves last week by enacting legislation prohibiting cities from allowing transgender individuals to use public restrooms that match their gender identity and further restricting cities from passing anti-discrimination ordinances that would give protected status to sexual orientation or gender identity.

Employers in North Carolina and across the country, however, should be aware of the trend in the federal courts and agencies to grant protections to transgender workers under Title VII of the Civil Rights Act.  Last week two federal courts allowed transgender plaintiffs to proceed with their gender discrimination claims, representative of the growing acceptance of sex stereotyping or gender nonconformity theories under these circumstances.

In Fabian v. Hospital of Central Connecticut, No. 3:12-cv-01154 (D. Conn. Mar. 18, 2016), the District of Connecticut denied summary judgment to a hospital on a surgeon’s sex bias claims.  The surgeon alleged that the hospital failed to hire her after learning of her plan to transition from male to female.  Tracing the history of transgender claims under Title VII, Judge Underwood, a well-respected jurist in the district, noted that although most early cases considering the issue held that Title VII does not protect transgender individuals, courts more recently have allowed such claims to proceed on a theory that the term “sex” in Title VII refers to discrimination based on factors related to or having something to do with sex.

The District of Arizona reached a similar conclusion in Doe v. Arizona, No. 2:15-cv-02399 (D. Ariz. Mar. 21, 2016).  In that case, a male transgender correctional officer alleged he was not safe at work because his coworkers, who referred to him as “he/she” or “it,” would not respond to his emergency calls.  The court denied Arizona’s motion to dismiss, finding that the plaintiff’s allegation of transgender status satisfied the “protected status” element of a gender discrimination claim under Title VII.  (While not the subject of this post, this case also has important implications regarding failure to exhaust administrative remedies for retaliation claims.)

These courts join a number of federal courts – including the First, Sixth, Ninth, and Eleventh Circuits –that have extended protections to transgender individuals under the sex discrimination provisions of Title VII or Section 1983.  Federal agencies also have expressed their intent to enforce protections for transgender workers.  For instance:

  • The EEOC interprets Title VII as prohibiting discrimination based on gender identity, a position asserted against a Florida-based organization of health care professionals, resulting in a consent decree in 2015, and against a Michigan funeral home in a lawsuit surviving a motion to dismiss.
  • Pursuant to Executive Order 13672, federal contractors are now prohibited from discriminating on the basis of gender identity, and OFCCP has issued amended regulations incorporating this prohibition.
  • OSHA has issued a guide advising that transgender employees should be permitted access to restrooms and locker rooms consistent with their gender identity.
  • Regarding the implementation of Section 1557 of the Affordable Care Act, the Department of Health and Human Services has issued a Notice of Proposed Rulemaking, which would incorporate discrimination on the basis of gender identity into the definition of “on the basis of sex.”

Thus, even if North Carolina’s law survives the recent legal challenge in court, employers should be aware that federal law may still grant protections to transgender workers.  Indeed, in January 2015, the Eastern District of North Carolina denied a hospital’s motion to dismiss a claim of sex discrimination brought by a certified nursing assistant alleging she was denied a position based on her transgendered status.

Additionally, regardless of the viability of a claim for transgender discrimination under federal law, at least sixteen states – including California, Illinois, Maryland, Massachusetts, New Jersey – and the District of Columbia, now include gender identity as a protected characteristic under their discrimination laws.  Employers outside of North Carolina should know whether state or local law provides similar protections.

Employers are advised to take a proactive role in preventing transgender, or gender identity, discrimination in the workplace and to have a plan in place to accommodate the potential needs of transgender workers.

DOL’s New Persuader Rule Is Intended to Aid Union Organizing

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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 industry: “Department of Labor Releases New Persuader Rule Intended to Aid Union Organizing.”

The US Department of Labor has finally issued its long awaited Final Rule radically reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”).  The Final Rule eviscerates any meaningful use of the Advice Exemption, which would be swallowed up by the new expansive definition of persuader activity which could include discussion regarding strategy, reviews of employer drafts and myriad other ways labor attorneys currently aid their clients including essentially any meaningful advice or counsel provided by labor counsel. The move comes just over two years to the day from the DOL’s 2014 postponement of its issuance of the Final Rule. …

Read the full post here.

Philadelphia Employers: New Ban-the-Box Poster Is Required

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Our colleague Nancy L. Gunzenhauser, an Associate at Epstein Becker Green, has a post on the Retail Labor and Employment Blog that will be of interest to many of our readers in the health industry: “Reminder: All Philadelphia Employers Must Post New Ban-the-Box Poster.”

Following is an excerpt:

One of the requirements of the amended Philadelphia ban-the-box law has gone into effect. As of March 14, 2016, Philadelphia employers are required to post a new poster provided by the Philadelphia Commission on Human Relations in a conspicuous place on both the employer’s website and on premises, where applicants and employees will be most likely to notice and read it. …

Read the full post here.

Federal Court Upholds Discharge of Employee on Medical Leave Who Shared Vacation Photos on Facebook

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Denise Dadika

Denise Dadika

Everyone has “friends” who overshare their daily activities on Facebook.  Rodney Jones’ oversharing cost him his job.  Jones worked as an activity director for Accentia Health, a long–term care nursing facility.  Accentia Health granted Jones 12 weeks of FMLA and an additional 30 days of non-FMLA leave in connection with his shoulder surgery.  Prior to the end of Jones’ leave, Accentia Health learned that Jones was posting about his leave activities on Facebook, including his visits to Busch Gardens Amusement Park and his Caribbean vacation, where he spent time swimming in the ocean despite his shoulder injury.  It seems that Jones’ colleagues did not appreciate seeing photos of Jones’ fun times while they were busy working and reported his posts to management.

When Jones returned to work, Accentia Health confronted Jones with his Facebook posts and permitted him to provide information about his leave and activities during leave, but Jones declined to do so.  Accentia Health discharged Jones “due to the poor judgment [he] exhibited as a supervisor and the negative impact that his Facebook posts and text messages had among the associates at Accentia Health.”  In addition, Accentia Health concluded that Jones’ conduct violated the Company’s Social Media Policy, which provides that “Social Media usage that adversely affects job performance of fellow associates … may result in disciplinary action up to and including termination.”

Jones sued Accentia Health alleging it interfered with his FMLA rights by requiring him to present a fitness for duty certification upon his return and discharged him in retaliation for taking leave under the FMLA.  The Court dismissed Jones’ claims on summary judgment finding that (1) Accentia Health did not interfere with Jones’ FMLA rights when it enforced its uniformly-applied policy requiring Jones to present a fitness for duty certification, and (2) Jones was not discharged because he took leave, but because of his actions while on leave, opining an employer “may terminate an employee for a good or bad reason without violating federal law.  [Courts] are not in the business of adjudging whether employment decisions are prudent or fair.”

The case serves as a reminder that employers may take action against employees who violate company policies while on leave and/or are suspected of FMLA abuse.  Before taking any action, however, employers should take the time to investigate the suspected violation and/or abuse, including questioning the employee about the need for leave and inability to work before confronting the employee with the misconduct.  Employers should also consider creating policies that protect against employee abuse while on leave, including policies that require employees to remain within the close vicinity of their homes while on medical leave and/or social media policies, similar to Accentia Health’s, that provide for discipline of employees whose social media posts adversely affect the job performance of fellow employees.  Finally, employers may require employees returning from leave to present a fitness for duty certification but should uniformly enforce the requirement to protect against FMLA interference claims.