Our colleagues Adam C. Abrahms, Steven M. Swirsky, and Brock Olson at Epstein Becker Green has recently published a post on the Management Memo blog that will be of interest to our readers in the health care industry: “Tie Goes to the Employer: National Labor Relations Board Overrules Past Precedent Regarding Dual-Marked Ballots.”

Following is an excerpt:

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that the employee who completed the ballot actually did not want to take a position either way.   The treatment of such a single dual-marked ballot can have dramatic consequences in a close election, as was the case in Providence Health & Services. …

Read the full article here.

To limit exposure and reduce the spread of COVID-19, New York and New Jersey are requiring long-term care facilities to implement testing for staff.

New York

On May 11, 2020, New York Governor Andrew Cuomo issued Executive Order 202.30 requiring nursing homes and adult care facilities, including all adult homes, enriched housing programs and assisted living residences (“facilities”), to test all staff for COVID-19 twice per week.  Staff who refuse to be tested will be deemed to have incomplete health assessment and will be prohibited from providing services until the test has been performed.

By May 13, 2020, facility administrators are to derive a plan to arrange the tests for the staff and file the plan with the Department of Health.  Additionally, by May 15, 2020, the order requires all facilities to submit a certificate of compliance with this order, as well as all applicable directives of the Commissioner of Health.  Facilities are also required to report any positive test results to notify the Department of Health by 5:00 p.m. of the day following receipt of the results.

Lastly, and significantly, the executive order mandates hospitals to not discharge a patient to a facility unless the facility administrator has certified that it is able to properly care for such patient and the patient has been tested negative for COVID-19. This order is to remain in effect until June 9, 2020.

Any facility that violates this executive order or the directives issued by the Commissioner of Health may have its operative certificate suspended or revoked.  Facilities that fail to comply may also be subject to a penalty of $2,000 per violation per day, with subsequent violations up to $10,000 per violation per day.

New Jersey

On May 12, 2020, New Jersey’s Health Commissioner signed an Executive Directive requiring all long-term care facilities, including nursing homes, assisted living residences, comprehensive personal care homes, residential health care facilities, or dementia care homes (“LTC”), to amend their outbreak plans (“Plan”) by May 19, 2020, to provide for COVID-19 baseline testing of all staff and residents by May 26, 2020.  Those who test negative must be retested within three to seven days after the baseline testing.  The Directive provides that any further testing, as well as the treatment of staff who test positive, should be in accordance with the CDC’s guidelines on Testing for Coronavirus in Nursing Homes.

The Plan must also address:

  • Testing procedures and frequency;
  • Post-testing protocols for patients such as cohorting of residents/patients and separation of those with laboratory confirmed COVID-19 infection from others;
  • Procedures to obtain staff authorizations for release of laboratory test results to the LTC so as to inform infection control and prevention strategies;
  • Work exclusion of staff who test positive for COVID-19 infection, refuse to participate in COVID-19 testing, or refuse to authorize release of their testing results to the LTC, until such time as such staff undergoes testing and the results of such testing are disclosed to the LTC;
  • Return to work protocols’ after home isolation for staff who test positive; and
  • Plans to address staffing (including worker absences) and facility demands due to the outbreak.

LTCs are required to submit attestations to the Department of Health by May 19 and May 26 that they are in compliance with requirements in the Directive.  Failure to comply with the Directive may result in license suspension or revocation.

In addition to complying with the strict and immediate requirements in the New York Order and New Jersey Directive, facilities must ensure they are confidentially maintaining any test results separate from employee personnel files in compliance with the Americans with Disabilities Act.

Failing a drug test may not kill the buzz for medical marijuana patients in the Empire State.  In contrast to courts in California and other jurisdictions, a New York state court has held that medical marijuana users are entitled to reasonable accommodations, even if they only obtain certification after testing positive for marijuana.

In Gordon v. Consolidated Edison, Inc., Kathleen Gordon failed a random drug test by her employer, Consolidated Edison, Inc. (“CEI”).  After testing positive, but before her termination, Gordon became a certified medical marijuana patient to treat her inflammatory bowel disease.  Gordon informed CEI of her certified status on several occasions between the time she failed her drug test and her termination date.  Gordon brought an action alleging discrimination and failure to accommodate under New York State and City Human Rights Laws (“NYSHRL” and “NYCHRL”), as well as the State’s medical marijuana law.  Because New York’s medical marijuana law provides that certified patients are disabled for purposes of the NYSHRL, Gordon claimed protected status.

CEI moved for summary judgment, arguing that Gordon was not a member of a protected class because she failed the drug test before she obtained a medical marijuana certification.  CEI asserted that Gordon had informed CEI that she had smoked marijuana before the drug test and before she was certified as a medical marijuana patient. CEI also argued, among other things, that the company had an unwritten practice to discharge employees who had worked for less than six months for their first violation of the drug policy.

The New York Supreme Court denied summary judgment on the termination claim.  First, the court found that Gordon was a member of a protected class because she was certified as a medical marijuana patient prior to her termination and had informed the company of such status.  Second, although CEI’s practice of terminating new employees who fail their first drug test was a legitimate, non-discriminatory reason for dismissing Gordon, the court held that there remained a material issue of fact as to whether the reason was pretextual because that practice was not specified in the company’s drug policy.

The court also denied summary judgment for CEI on Gordon’s reasonable accommodation claim because Gordon informed CEI of her medical marijuana certification but CEI did not appear to engage in a “good faith interactive process to assess her needs and the reasonableness of the accommodation requested.”  While CEI claimed that any reasonable accommodation would require it to violate the Drug-Free Workplace Act, the court declined to find an undue hardship because the company’s drug policy allows employees (or at least those who have been employed for more than six months) to continue working even after failing a drug test.

Notably, the court treated the NYCHRL and NYSHRL claims the same.  Although the NYCHRL does not define disability to include medical marijuana use, the court held that because the protections of the NYCHRL are more expansive than those under the NYSHRL, medical marijuana status constitutes a disability under the NYCHRL.

This case serves as a reminder to New York employers that all drug testing policies must be clearly written and capture the company’s actual practices regarding testing and any resulting consequences.  More importantly, prior to terminating or taking an adverse action against an employee who is a medical marijuana patient, the company must be sure to engage in an interactive dialogue and consider any reasonable accommodations.  The NYSHRL and NYCHRL anti-discrimination protections and reasonable accommodation obligations kick in once an employer receives notice that an individual is a certified patient, even if such status is obtained after failing a drug test for marijuana.

Our colleague David J. Clark at Epstein Becker Green has recently published a post on the Trade Secrets & Employee Mobility blog that will be of interest to our readers in the health care industry: “New Indiana Law Will Restrict Physician Non-Competes.”

Following is an excerpt:

Joining many other states that in recent years have enacted laws regarding physician non-competition agreements, Indiana recently enacted a statute that will place restrictions on such agreements which are originally entered into on or after July 1, 2020.

Under Pub. L. No. 93-2020 (to be codified in part as Ind. Code § 25-22.5-5.5) (2020), which will take effect on July 1, 2020, for a non-compete to be enforceable against a physician licensed in Indiana, the agreement must contain the following provisions: …

Read the full article here.

As the number of COVID-19 cases in the State of New Jersey continues to grow, Governor Murphy has issued various executive orders aimed at combatting COVID-19.  On April 1, 2020 the Governor signed Executive Order 112 (“EO 112”), which focuses on the health care industry with a goal of increasing the number of health care workers responding to COVID-19 in New Jersey.  EO 112, among others things:

  • Allows the Department of Law and Public Safety, Division of Consumer Affairs (DCA) to reactivate the license of any health care professional previously licensed in New Jersey who retired from practice within the last 5 years under certain circumstances;
  • Allows the DCA to issue a license to practice to a health care provider who is licensed in another country, provided certain conditions are met; and
  • Reduces certain scope of practice requirements on Advance Practice Nurses and Physician Assistants, which includes some joint protocol and physician supervision requirements that may have previously hampered staffing and treatment efforts during the COVID-19 crisis.

Additionally and significantly, in light of the limitations on certain liabilities found under the federal Coronavirus Aid, Relief and Economic Security (CARES) Act, EO 112 states that individuals granted a temporary license and those with existing licenses, certificates, or registration to practice as a health care professional shall be immune from civil liability for damages that may occur in the course of providing health care services in response to COVID-19 as a result of acts or omissions undertaken in good faith “whether or not in the scope of the licensee’s practice[.]”  Additionally, any health care facility within the meaning of N.J.S.A. 26:13-2, and any site designated by the Department of Health for temporary use in responding to COVID-19, including hotels and student dormitories, shall also be immune from civil liability as a result of the act or omission of any of its employees, agents, volunteers, etc. undertaken in good faith.

EO 112, as well as the other executive orders issued by Governor Murphy and his administration highlights the attempts to address the shortage of health care providers in New Jersey. These actions should enable organizations such as hospitals and other COVID-19 treatment magnets to more robustly staff their organizations, as well as have flexibility in terms of the staffing and supervision of certain providers during the public health emergency.

A post on the Health Law Advisor blog will be of interest to many of our readers: “HHS Office for Civil Rights Bulletin on Civil Rights Issues During the COVID-19 Crisis,” by attorneys Helaine I. Fingold, James S. Frank, Frank C. Morris, Jr., Ashley Creech & Tzvia Feiertag of Epstein Becker Green.

Following is an excerpt:

The Office for Civil Rights (“OCR”) at the U.S. Department of Health and Human Services (“HHS”) issued a bulletin on March 28, 2020 to remind entities covered by federal civil rights statutes of their continued obligation to prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and religion in HHS-funded programs during the COVID-19 pandemic and provide reasonable accommodations to individuals with disabilities.

Read the full post here.

On March 27, 2020, NLRB General Counsel John Ring issued General Counsel Memorandum 20-04, entitled “Case Summaries Pertaining to the Duty to Bargain in Emergency Situations” providing employers with guidance “regarding the rights and obligations of both employers and labor organizations, particularly in light of responsive measures taken to contain the virus,” including both “measures taken out of prudence” as well as and other actions that “have been required by state, local or federal authorities.” Our Act Now Advisory reports on the General Counsel’s review of summarized in the Memorandum are those touching on the duty to bargain during public emergency situations and those touching on the duty to bargain during emergency situations particular to an individual employer. Stay tuned to this blog and Epstein Becker Green’s Coronavirus Resource Center for updates.

Notwithstanding numerous restrictions limiting access to many resources during the ongoing coronavirus (COVID-19) pandemic, marijuana users in states where medicinal and adult use is legal may still have access to cannabinoid supplies. Even as states, counties, and municipalities increasingly restrict or shut down business activities to stem the spread of the virus, many jurisdictions will keep medical marijuana dispensaries open as “essential” businesses like pharmacies and grocery stores.

Medical Marijuana Dispensaries Deemed “Essential” Businesses

Shelter in place orders and other “pause” mandates have been implemented from California to Illinois to New York, shutting down all businesses and jobs except those considered “essential” for the public’s safety, health, and well-being. As with other matters of public policy, the types of businesses considered “essential” and exempt from the restrictions vary by jurisdiction.[1] However, as business groups scramble to determine whether they are “essential,” the medical cannabis industry has will generally be able to operate – albeit with some changes in support of COVID-19 considerations.

Public health officials throughout California, including in Los Angeles, San Francisco, Santa Cruz, Monterey, and Contra Costa counties have all affirmed that marijuana businesses will not be closed. Similarly, Connecticut, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico,  New York, Ohio, and Pennsylvania have declined to urge or require licensed marijuana businesses to shut down, generally because they fall under agricultural or medical industry exemptions.

Marijuana dispensaries are being treated like pharmacies in part because industry representatives, providers, and patients have reminded policy makers of the importance of access to marijuana. Marijuana industry leaders reason that cutting off access to medical marijuana, where legalized, would harm patients and potentially force them to acquire marijuana on the black market, where the products may contain pesticides and other components that may endanger patient health. Additionally, guaranteeing uninterrupted access to marijuana may prevent panic-buying, bottlenecks in the supply chain, and crowded dispensaries. This has already been reported in some states where guidance was unclear or late in coming.

Temporary COVID-19 Measures

While allowing dispensaries to remain open, state and local governments have taken other precautions in response to the ongoing coronavirus pandemic. In Maryland, regulators have instructed dispensaries to suspend the use of “sniff jars”—containers full of marijuana flowers that customers may smell—and over-the-counter interactions. To decrease person-to-person contact and promote social distancing, states including Colorado, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Hampshire, New Mexico, Oregon, Pennsylvania, and Washington are permitting curbside pick-up for medical marijuana, have relaxed restrictions on delivery, and even encouraged patients to place larger individual orders.

It’s Work from Home, Not Work While Stoned

While the marijuana industry may be feeling some relief, continued access to marijuana may pose problems for other employers. As more companies implement work from home policies, there is an increased risk that employees may choose to use legal medicinal or recreational marijuana while “on the clock.” While perhaps difficult to police, employers may be able to reduce the risk by encouraging employees to maintain similar routines and work hours as they would when they are in the office. Clarifying work expectations and policies for newly remote workers is good practice regardless of COVID-19. It reminds them that all expectations for performance, behavior, and conduct are still in place – wherever they are working.  Regular contact with remote employees can help an employer’s workforce stay connected and positive in these difficult times, while also discouraging those who might treat work from home days as they might a snow day.

 

*Michelle Wright with EBG Advisors, a Strategic Consultant not admitted to the practice of law, contributed to the preparation of this post.

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[1] For example, California and New York have each provided lists and examples of businesses that will be considered “essential.”

A post on the Management Memo blog will be of interest to many of our readers: “Coronavirus Considerations for Employers with a Unionized Workforce,” by attorneys Adam S. Forman, Michael S. Ferrell, Steven M. Swirsky, and Elizabeth “Libby” Martin of Epstein Becker Green.

Following is an excerpt:

As we have discussed in prior Advisories, the 2019 Novel Coronavirus (“Coronavirus” or “COVID-19”) public health emergency is raising important issues for employers addressing rapidly developing disruptions to the workplace and the lives of employees with mass school closures, workplace closings, the need to reduce staff and expenses, etc. Employers with  unionized workforces must take certain additional considerations into account when developing and implementing response plans to the current crisis.

Under the National Labor Relations Act (“NLRA” or “Act”), employers have a legal duty to bargain with labor unions representing their employees regarding the employees’ wages, hours and other conditions of employment.  In addition, many employers are party to collective bargaining agreements (“CBA”) with the unions that represent their employees that contain provisions directly relevant to the types of adjustments that may be necessary for businesses to respond to the unprecedented challenges this pandemic and its broad effect on society and commerce presents. Absent language in a CBA recognizing an employer’s right to act, either by adjusting schedules, reducing the numbers of employees working, modifying pay and/or benefits, employers generally may not make unilateral changes to these terms without first providing their employees’ union representatives with reasonable notice and an opportunity to bargain over the same.  The current public health emergency does not eliminate these legal obligations of employers, although it certainly affects what may be deemed reasonable notice and an opportunity to bargain given the ongoing emergency.

Accordingly, unionized employers planning their responses to Coronavirus should consider the following factors …

Read the full post here.

On March 11, 2020, the World Health Organization declared that the 2019 novel coronavirus (known as “COVID-19”) is now a pandemic. The effects continue to be felt in the United States, which currently has well over 1,000 cases of COVID-19. As of March 12, 2020, 19 states have declared a state of emergency to ensure there are resources to address the coronavirus, and President Trump has announced a ban on travel to and from Europe for 30 days starting on Friday, March 13, 2020, which was extended to the United Kingdom and Ireland on March 15th. Additionally, on March 13, 2020 President Trump declared a national emergency.   Given the prevalence of the coronavirus in the United States and the growing numbers of cases globally, health care employers should take extra precaution with their employees. As all public health communications are making clear, efforts to limit the spread of COVID-19 will not only prevent illness, but they will also reduce the pandemic’s potential to overwhelm critical health care resources.

This article provides guidance for health care employers on responding to the COVID-19 pandemic. In addition, our best practices for all employers can be found here and here, and all businesses should visit our Coronavirus Resource Center. 

8 Steps That Health Care Employers Should Take

The Interim Guidance for Healthcare Facilities from the Centers for Disease Control and Prevention (CDC) provides multiple suggestions and guidance for health care employers. Based on CDC guidance and information from other sources, health care employers should consider the following:

  1. Communicate regularly with staff. Meet with staff to educate them on preparing for potential COVID-19 cases, including educating staff on how COVID-19 spreads, clinical management of individuals that potentially have coronavirus, and best practices for infection prevention.
  2. Designate coronavirus-ready staff. Designate staff members responsible for treating suspected or known coronavirus patients. For employees working with suspected or known COVID-19 patients, health care providers should make their employees aware of recommended work restrictions and monitoring for potential staff exposure.
  3. Encourage sick employees to stay home. Monitor employees and ensure maintenance of staff operations by making employees aware of sick leave policies and encouraging employees to stay home if they are ill (particularly with respiratory symptoms).
  4. Develop a plan for screening employees for COVID-19 symptoms. If widespread transmission becomes a concern, the CDC permits facilities to consider screening staff for fever or respiratory systems prior to allowing staff to enter the building or treat patients. Generally, taking the body temperature before entering the facility or asking employees to self-report to ensure that the employee has not developed a fever provide a method for facilities to actively monitor employees.
  5. Create contingency plans for potential staffing shortages. Health care facilities cannot rely on telework. Thus, as the COVID-19 outbreak may increase absenteeism, health care facilities should create a contingency plan to ensure appropriate staffing levels, which might include extending hours, cross-training current employees, or hiring temporary workers.
  6. Train employees to properly don and doff personal protective equipment (PPE). A particularly important aspect of preparing for COVID-19 is ensuring that employees are aware of the appropriate PPE to use while treating patients who have or are suspected to have COVID-19. Recently, a federal employee filed a whistleblower action claiming that the Department of Health and Human Services sent its employees to Travis and March Air Force Bases in California without proper protective gear or training regarding the appropriate safety measures to assist quarantined Americans evacuated from China after the start of the outbreak. Employees should be trained on the proper procedures regarding PPE to use while treating patients suspected or known to have COVID-19.
  7. Perform drills. Consider performing drills and trainings to ensure that employees, particularly those in emergency units or care for critically ill, are fully aware of the proper procedure for treating patients with COVID-19 and have the appropriate protective equipment.
  8. Encourage good personal hygiene. Inform employees of the need to (i) frequently wash their hands with soap and water for at least 20 seconds; (ii) avoid touching their eyes, nose, or mouth with unwashed hands; and (iii) avoid close contact with people, unless treatment of the patient requires it.

Can a Health Care Employer Take Employees’ Temperatures?

Particularly now that COVID-19 has been designated a pandemic, many health care employers are struggling with whether and how to screen their employees. Any employee that raises a concern about exposure to COVID-19 and exhibits potential symptoms should be encouraged to seek emergency assistance and contact the state and local health department(s). Many health care providers, however, are asking whether they can take and record the body temperatures of their staff prior to their shifts. The Equal Employment Opportunity Commission (EEOC) has made clear that, under normal circumstances, measuring an employee’s body temperature constitutes an improper medical examination under the Americans with Disabilities Act (ADA). Pursuant to the EEOC pandemic preparedness guidance, however, employers may measure body temperature if symptoms become more severe or if the disease becomes widespread in the community as assessed by state or local health authorities or the CDC. For instance, health care providers in Westchester County and other locales where cases have been identified likely have a justifiable reason to take the temperature of their employees to further prevent the spread of the outbreak in those communities.

Additionally, during a pandemic, taking an employee’s body temperature may be job-related and consistent with business necessity. Health care providers treating vulnerable patient populations in particular have a stronger argument that taking their employees’ temperatures to screen for fever is job-related and consistent with business necessity, particularly for employees who treat or have direct contact with patients. Employers concerned about potential ADA violations may instead consider the alternative of requiring their employees to take their own temperatures and stay home if they determine they have a fever (100.4 degrees or higher).

Employers who do take temperatures of their employees should develop a plan to minimize legal risk. In consideration of privacy implications, employers should attempt to avoid screening all employees at the same time and in the same place. Further, all records containing temperature or other medical information should be treated as confidential and kept separate from employee personnel files. To avoid future wage and hour claims, employers should be prepared to track time spent waiting for and being screened, and to pay employees for this time to the extent required by applicable wage and hour laws. Finally, employers should be prepared to handle objections from employees. Staff who object on religious or disability grounds may require reasonable accommodation under Title VII or the ADA, and groups of employees who refuse to participate in screening may be engaging in protected concerted activity under the National Labor Relations Act. Employers with union-represented work forces should also be prepared to address these issues with their employees’ collective bargaining representatives.

How Do We Manage Work Shortages, and Should Sick Employees Be Paid?

In the health care environment, most employees cannot work remotely, and health care providers often employ numerous hourly workers who are non-exempt under the Fair Labor Standards Act. As stated above, to manage potential work shortages, employers should consider extending work hours, cross-training employees in case they need to cover for absent coworkers, and creating teams that can backup absent or overworked employees.

While exempt employees must be paid their regular salaries any time they work any portion of a workweek, non-exempt employees need be paid only for the time they work and for times deemed compensable under such employers’ policies and procedures. Non-exempt employees who are out sick or to care for a relative may be entitled to use paid sick time or other paid time off (PTO), such as vacation, personal days, etc. Note that additional paid sick leave may be required under legislation that has been passed by the House of Representatives and is awaiting action in the Senate.

There are also a variety of means employers may compensate non-exempt employees who cannot work and do not have available paid time off, including (i) providing discretionary paid administrative leave, (ii) allowing coworkers to share or donate PTO with others, and (iii) advancing future PTO. Additionally for those non-exempt employees who have some work duties that can be done remotely, employers may extend telework options to those staff members, provided they have a way to track and record remote work time.

Given the rapid pace of developments in connection with COVID19, health care employers should remain mindful of additional action by federal, state, and local governments impacting these matters.