In a decision with significant implications for private hospitals, on March 7, 2017, the Third Circuit held in Doe v. Mercy Catholic Medical Center that medical residents may bring private causes of action for sex discrimination under Title IX against private teaching hospitals operating residency programs, and are not limited to claims under Title VII.
Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq., prohibits sex discrimination in any “education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). A former resident alleged the director of her program repeatedly sexually harassed … Continue Reading
Two stories on the new episode of Employment Law This Week will be of particular interest to our readers in the health care industry:
California Health Care Workers Can Waive Breaks
California health care workers can still waive some breaks. In February 2015, a California appeals court invalidated an order from the Industrial Welfare Commission (IWC) that allowed health care workers to waive certain meal breaks. The court found the order, which allowed the workers to miss one of their two meal periods when working over eight hours, was in direct conflict with the California Labor Code. The state legislature … Continue Reading
[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate … Continue Reading
In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening … Continue Reading
With flu season quickly approaching, health care employers may be considering mandatory influenza vaccinations for their workforce. Mandatory vaccination policies may dramatically increase patient safety, but they may also cause friction within the workforce when employees object on religious grounds to being vaccinated.
While no federal and few state statutes address the legality of enforcing mandatory vaccination policies, the EEOC and private litigants recently have moved this issue forward in the courts. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), employees with sincerely held religious beliefs are entitled to a reasonable accommodation of those beliefs, provided … Continue Reading
The increased use of portable electronic devices in the workplace and the popularity of social media pose unique challenges for health care employers, particularly when the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) conflict with the NLRB’s position on policies that could infringe upon an employee’s right to engage in concerted activity under the NLRA.
HIPAA governs the use and disclosure of protected health information (“PHI”) by health care providers. HIPAA violations may occur when health care employees post images of patients or patients’ records or vitals on social media. Oftentimes, the disclosure is inadvertent. … Continue Reading
In recent years, unions representing employees in health care facilities have engaged in activities during contract negotiations to pressure employers into settling, while limiting the cost of engaging in strike activity in the form of lost wages to union employees. The two most common forms of such activity used by unions are informational picketing, and short, sometimes intermittent, strikes, usually lasting only a day or two.
Informational picketing is yet another issue on which the NLRB has recently overturned precedent, in this case favoring union rights over patient rights and health care institutions’ property rights.
While Section 1557 imposes significant nondiscrimination requirements on “Covered Entities” (as discussed in the article above), most employers are not “Covered Entities” as defined under the final rule (“non-covered employers”). The impact of Section 1557 on non-covered employers depends on whether their respective group health plans are insured or self-insured and the level of involvement in the plans by insurance issuers that are “Covered Entities” under the final rule.
Non-Covered Employers with Fully Insured Group Health Plans
Nearly all health insurance issuers are Covered Entities under Section 1557 because they offer individual policies on a federal or state Health Insurance … Continue Reading
While all eyes were on the battle for the White House, voters in a number of states approved new legislation that will directly impact employers. Arizona and Washington will soon require paid sick leave for workers, as well as minimum wage increases. Medical marijuana is now legal in Arkansas, Florida, and North Dakota, while recreational use was approved in California, Maine, Massachusetts, and Nevada. The new laws in Arkansas and Maine explicitly prohibit employment discrimination against medical marijuana users.
While the presidential election has attracted extreme attention, marijuana legalization initiatives were on the ballots in nine states on November 8, 2016. Four states – Arkansas, Florida, Montana, and North Dakota – approved measures providing for the medical use of marijuana, and three states – California, Massachusetts, and Nevada – approved initiatives allowing for recreational use. The results in Maine are still close to call, but, if that measure is approved, it will be the fourth measure permitting recreational use. Only one state (Arizona) defeated a marijuana legalization initiative.
Featured on Employment Law This Week: The Equal Employment Opportunity Commission (EEOC) has issued new guidance on workplace retaliation.
The EEOC’s final guidance on retaliation includes concrete examples of retaliation issues that the courts have largely agreed upon, as well as expanded definitions of “adverse action” and “causal connection.” The guidance also describes “promising practices” for reducing the possibility of retaliation, including anti-retaliation training and proactive follow-up with potential targets. Retaliation has become the most frequent form of employment claim across business sectors. The percentage of EEOC charges in this area has almost doubled since the last guidance was issued. … Continue Reading
On August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues (Guidance) to replace its 1998 Compliance Manual section on retaliation, including tips on ADA interference. The Guidance reflects the Commission’s consideration of feedback received on the proposal from about 60 organizations and individuals following a 30-day public input period that ended February 24, 2016. The changes in the Guidance are in line with the EEOC’s efforts to broaden the conduct that would be deemed retaliatory as well as the concept of causation.
Along with the Guidance, the EEOC has issued two accompanying documents: a … Continue Reading
In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision. On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.
Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision … Continue Reading
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 … Continue Reading
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 … Continue Reading
Following on the tails of recent updates in New York and California’s equal pay laws, New Jersey, Massachusetts, and California all have bills pending in their state legislatures that would seek to eliminate pay differentials on the basis of sex and other protected categories. …
While states are leading the charge with updates to equal pay laws, the EEOC is also … Continue Reading
The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer position statements to Charging Parties upon request. The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.
For the fourth time in history, the World Health Organization has declared a global public health emergency, following the spread of the Zika virus throughout Latin America and the Caribbean. The disease can have harmful effects on fetuses, and the CDC has warned against travel for pregnant women and their partners. The Zika crisis has important implications for employers. Workers who travel for their jobs may request accommodations, and employers should make them aware of the risks if they aren’t already. Denise Dadika, from Epstein Becker … Continue Reading
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 … Continue Reading
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.