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.

Our colleague Maxine Neuhauser at Epstein Becker Green has recently published a post on the Workforce Bulletin blog that will be of interest to our readers in the health care industry: “NJ Supreme Court Rules That the LAD Protects Registered Medical Cannabis Users.”

Following is an excerpt:

On March 10, 2020 the New Jersey Supreme Court ruled that under the New Jersey Law Against Discrimination (“LAD”), employees who legally use cannabis as permitted by the state’s Compassionate Use of Cannabis of Medical Marijuana Act[i] (“Compassionate Use Act”) may not be fired because they use medical cannabis and that such employees are entitled to reasonable accommodation. In a brief opinion, the Court substantially adopted the Appellate Division’s reasoning in Wild v. Carriage House Funeral Holdings, Inc., about which we previously wrote.

Wild was employed by Carriage House Funeral Home as a licensed funeral home director.  While working a funeral, a vehicle he was driving was hit by a driver who allegedly ran a stop sign.  Following the accident, Wild was taken to the hospital, but was not administered a drug test because he told the Emergency Room doctor about his license to possess medical marijuana and the physician told him that therefore no test was required because the results would be positive. Wild had not previously told his employer of his use of medical marijuana and after learning of it, Carriage House terminated his employment. …

Read the full article here.

Our colleague Nancy Gunzenhauser Popper at Epstein Becker Green has recently published a post on the Workforce Bulletin blog that will be of interest to our readers in the health care industry: “Colorado Mandates 4 Days of Paid Leave for COVID-19 Testing.”

Following is an excerpt:

On March 10, 2020, Colorado Governor Jared Polis issued an executive order directing he Colorado Department of Labor and Employment (“DLE”) to create emergency rules to “ensure workers in food handling, hospitality, child care, health care, and education can get paid sick leave to miss work if they exhibit flu-like symptoms and have to miss work awaiting testing results for COVID-19.”

The DLE issued the Colorado Health Emergency Leave with Pay (“HELP”) Rules, which mandates four days of paid sick leave for employees in certain industries who have flu-like symptoms to receive COVID-19 testing. …

Read the full article here.

Our colleague  Tzvia Feiertag at Epstein Becker Green has recently published a post on the Workforce Bulletin blog that will be of interest to our readers in the health care industry: “IRS Memo Concludes There Is No Statute of Limitations for ACA Employer Mandate Penalties Under Internal Revenue Code § 4980H.”

Following is an excerpt:

The IRS Office of Chief Counsel recently issued a memo which, in a surprise to many, concluded that the filing of the Affordable Care Act (“ACA”) Forms 1094-C and 1095-C (“C Forms”) does not start the statute of limitations on the Employer Shared Responsibility Payments (“ESRP”) under Internal Revenue Code (“Code”) § 4980H and, in fact, that there is no statute of limitations with respect to ESRP assessments.

In short, the ESRP is a penalty that may be assessed against “applicable large employers” (“ALEs”)[1] when, in certain circumstances, a full-time employee obtains a premium tax credit for health coverage purchased on an Exchange.  Employers file C Forms annually to report information about their offers of health care coverage to employees so that the IRS can assess potential ESRP liability under Code § 4980H.  Until the memo’s issuance, the consensus opinion was that the filing of the C Forms started the Code’s general 3-year statute of limitations that runs from the date a “return” is filed or the return’s due date, whichever is later.  The instructions on the C Forms, in fact, refer to the C Forms as “returns” and advise filers to keep copies of information returns and supporting documents for at least three years from the returns’ due date. …

Read the full article here.

We encourage our readers to visit Workforce Bulletin, the newest blog from our colleagues at Epstein Becker Green (EBG).

Workforce Bulletin will feature a range of cutting-edge issues—such as sexual harassment, diversity and inclusion, pay equity, artificial intelligence in the workplace, cybersecurity, and the impact of the coronavirus outbreak on human resources—that are of concern to employers across all industries. EBG’s full announcement is here.

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Delaware is reminding its employers that a safe, drug-free workplace can pay.  On February 1, the state’s Department of Insurance (the “Department”) amended its regulations to emphasize the availability of workers’ compensation insurance discounts of up to 19 percent for employers who participate in the Delaware Workplace Safety Program (the “Program”), and who implement a drug-free workplace program at their worksites.  The amended regulations took effect on February 11, 2020.

The Workplace Safety Program

First implemented in 1989, the Program offers an opportunity for qualified, participating employers to lower their workers’ compensation insurance premiums by passing Department-conducted safety inspections of their worksites and by “maintaining a safe place to work.”  In order to be eligible for a discount on its workers’ compensation insurance premiums, an employer must have been in business for at least three years and pay an annual workers’ compensation insurance premium of $3,161 or higher.  In addition, the amended regulations require employers to submit a Workplace Safety Program Questionnaire to the Department that discloses details about the effectiveness of the employer’s health and safety program; data on the adequacy and effectiveness of the employee training program; the employer’s efforts to identify and eliminate potential hazardous conditions; and workplace injury data for the previous three years.

The Department will notify each eligible employer seven months before the eligible employer’s policy renewal date and provide instructions as to how to apply for a workplace safety credit.  After applying for the Program, employers must initially undergo two inspections by the Department.  The first is a scheduled worksite inspection.  If the employer passes this scheduled inspection, and is accepted into the Program, a second, unannounced inspection will be made within the year to confirm the initial certifications of safety in the workplace.  An employer is only entitled to the premium credit if each of its Delaware work locations successfully passes both inspections.  Once the employer qualifies only a single, unannounced inspection is required annually to maintain participation in the Program.

Drug-Free Workplace Considerations

The amended regulations direct inspectors to consider whether the employer’s program includes a written drug-free workplace policy, a Drug-Free Workplace poster certified by the Department or other vendor, and a description of the employer’s Employee Assistance Program or evidence of other available drug and alcohol counseling resources, including a list of treatment centers.  Inspectors will also review a description of the employer’s drug-free workplace training program, which must be completed by all employees within 30 days of their start date, and the methods the employer uses to document completion of such training.

Helpfully, the regulations now provide employers with a detailed list of items that must be included in their drug-free workplace policy.  Among other things, compliant policies must:

  • State that the policy concerns the protection of both employees and guests;
  • Describe the conduct prohibited under the policy;
  • Announce the employer’s intent to comply with all applicable federal and state laws and regulations;
  • Describe any pre-employment testing, reasonable suspicion testing, and post-incident testing or other drug testing policy;
  • Provide a list of substances prohibited at the workplace;
  • Specifically note whether marijuana is a prohibited substance in the workplace;
  • State the employer’s policy regarding the use of prescription medications and the employee’s duty to notify the testing laboratory of such substances;
  • State the employer’s policy on employee consumption of alcohol on premises, which must describe the when alcohol consumption is permitted and whether the employer permits alcohol use on premise outside of normal working hours;
  • List any and all employee drug testing procedures, including if the testing is conducted by an independent laboratory, whether the testing includes or is limited to urine testing, the employee’s right to refuse testing and the consequences for so doing, if the employee will be compensated for their time spent testing, and whether the employer covers the cost of the drug test;
  • Explain the consequences for a positive drug-test result for applicants and employees, including whether either has a right to offer an explanation for the positive result;
  • Include a confidentiality statement; and
  • Provide a method for ensuring and documenting that all applicants and current employees receive details of the employer’s drug-free policy.

Though the new regulations appear to be onerous, the inspector’s recommendation as to whether an employer should receive a workplace safety credit, and the amount of the discount, is based, in part, on a compliant drug-free workplace program.

Interaction with Legalized Marijuana

Employers opting to take part in the Program should be aware that the regulations require compliant drug-free workplace policies to expressly state whether marijuana (cannabis) is a prohibited substance in the workplace.  Thus, it is important for employers to understand how this requirement intersects with the regulation of marijuana under state law.

While the recreational use of marijuana has not been legalized in Delaware, the state has decriminalized the possession or private use of small (personal) quantities of marijuana.  Moreover, the Delaware Medical Marijuana Act legalized the medical use of marijuana by registered cardholders (qualifying patients under the law).  Neither law requires employers to permit the use of marijuana at the workplace, but the Medical Marijuana Act does prohibit employers from discriminating against individuals based solely on the person’s status as a cardholder or a positive drug test for marijuana components or metabolites.  Therefore, in crafting a compliant drug-free workplace policy, employers should take this non-discrimination provision into account.

Looking Ahead

To ensure eligibility and to take advantage of the potential discounts, eligible Delaware employers should begin reviewing their workplace safety programs, establish a plan for training their employees, and review existing drug testing and/or drug-free workplace policies.  Reviewing these policies also offers employers an opportune time to consider how they are treating applicants and employees who use marijuana—medically or recreationally—and ensuring that their policies are both compliant with the Workplace Safety Program and the Medical Marijuana Act’s prohibition of discrimination against medical marijuana users.