In this episode of the Diagnosing Health Care Podcast:  Since the start of the COVID-19 pandemic, many jurisdictions have enacted protections from COVID-19-related liability claims through legislation and executive orders. These liability shields, however, may give health care businesses a false sense of security and offer little protection when it comes to employment claims.

Epstein Becker Green attorneys Denise Merna Dadika, Gregory Keating, and Elena Quattrone discuss the unintended liability consequences health care employers must consider as they transition more employees back to in-person work and the ways to mitigate increasing whistleblower and retaliation risks.

The Diagnosing Health Care podcast series examines the business opportunities and solutions that exist despite the high-stakes legal, policy, and regulatory issues that the health care industry faces. Subscribe on your favorite podcast platform.

Listen on Apple Podcasts, Google Podcasts,
Overcast, Spotify, Stitcher, YouTube, and Vimeo.

shutterstock_1901405218

2021 is set to be a landmark year for the number of jurisdictions raising wage floors across the country. According to a National Employment Law Project report, as of January 1, 2021, 20 states and 32 municipalities raised their minimum wage. By the end of 2021, the report tracks that as many as 24 states and 50 municipalities will increase wages for the lowest-paid workers.

Perhaps as a reaction to the steadily growing Fight for $15 movement or in response to the COVID-19 pandemic, 40 cities and counties will have met or exceeded a $15 minimum wage by the end of 2021. Eight states — California, Connecticut, Illinois, Florida, Maryland, Massachusetts, New Jersey, and New York — and the District of Columbia, will raise their state minimum wage to $15 or higher by 2026. Florida voters’ recent approval of a ballot initiative to raise the state’s minimum wage to $15 by 2026 may evidence a shift of public support for an increased minimum wage. Indeed, a 2019 Pew Research Center survey revealed that upwards of two thirds of Americans support a $15 minimum wage. President Biden also supports increasing the minimum wage to $15, and while Congress unsuccessfully sought to include a provision to raise the federal hourly minimum wage from $7.25 to $15 in the recent American Rescue Plan COVID-19 stimulus bill, we expect further action to increase the federal minimum wage.

New Jersey lawmakers passed a bill that guarantees employees who provide direct care at long-term facilities a minimum wage of at least $3 more than the prevailing minimum wage rate. The law defines a “long-term care facility direct care staff member” as “any health care professional licensed or certified . . .  who is employed by a long-term care facility and who provides personal care, assistance, or treatment services directly to residents of the facility in the course of the professional’s regular duties.” Most notably, the New Jersey law does not cover long-term care facility employees who do not provide direct care. Virginia lawmakers recently failed to pass similar legislation that required those employers authorized to remain open during a stay-at-home or shelter-in-place order to pay employees 1.5 times the regular rate of pay for hours worked.

A shift in minimum wage floors will surely have a major impact on health care employers given that nearly 7 million of the approximately 18.6 million health care employees earn a median wage of $13.48 according to a report by the Brookings Institute. Health care employers should continue to assess their wage practices to not only ensure legal compliance but also allow them to remain competitive in retaining and attracting talented medical professionals and staff.

OSHA binder on desk with notepad clipboard pen - shutterstock_1328656937

Our colleague Robert O’Hara of Epstein Becker Green has a new post on the Workforce Bulletin blog that will be of interest to our readers: “OSHA Launches New COVID-19 Initiatives: With More to Come“.

The following is an excerpt:

President Biden’s January 21, 2021 Executive Order (EO) on COVID-19 tasked the Occupational Safety and Health Administration (OSHA) to: launch a national enforcement program, review and correct any shortcomings in their prior enforcement strategies and to determine whether any Emergency Temporary Standards (ETS) were necessary and, if so, to issue an ETS by March 15, 2021. The prior Administration had not issued an ETS, and was severely criticized by the Congress and labor unions.

On March 12, 2021, OSHA fulfilled some of the EO directives by publishing two COVID-19 initiatives to bolster safety enforcement during the remaining period of the pandemic, but it did not issue an ETS as expected. While the original deadline has now passed, OSHA reportedly is preparing to issue the ETS within the next few weeks and is currently working with the White House on regulatory review.

The first announced initiative is a COVID-19 National Emphasis Program (NEP) Directive, whose goal is to significantly reduce or eliminate worker exposures to COVID-19. The NEP will focus OSHA resources on target industries and worksites where employees may have a high frequency of close contact exposures. The NEP combines inspection-targeting, employer outreach and provides compliance assistance to promote safe workplaces.

Click here to read the full post on the Workforce Bulletin blog.

new_york_city_skyline_sky_line_conference_board_room_corporate_business_shutterstock_227384539_1280x720

Our colleagues Susan Gross Sholinsky, Nancy Guzenhauser Popper, Eric Emanuelson, and Christopher Shur of Epstein Becker Green have a new post on the Workforce Bulletin blog that will be of interest to our readers: “New York City Council Establishes Board to Assess Employers’ COVID-19 Workplace Health and Safety Protocols and Training.”

The following is an excerpt:

The New York City Council is planning to evaluate how effectively both the City, as an employer, and private employers disseminated and implemented COVID-19 workplace guidance over the past year with the goal of strengthening how the public and private sectors manage future public health emergencies. On February 28, 2021, the Council enacted Int. 2161-2020 (the “Law”), which establishes a board to review the workplace health and safety guidance that agencies and private employers issued to their respective employees during the COVID-19 pandemic. The newly formed board will ultimately submit a final report and recommendations to the Mayor and Speaker of the Council by December 15, 2021. The Law is effective immediately.

Click here to read the full post on the Workforce Bulletin Blog.

On February 10, 2021, the Centers for Disease Control and Prevention (“CDC”) issued  updated guidance and a report emphasizing the importance of a wearing a mask that fits tightly over the face to slow the spread of COVID-19.  The report, which provides the basis for the CDC’s updated guidance, is based on CDC experiments that showed “substantially improved source control and reduced wearer exposure” when worn properly. The publications recommend two specific ways to ensure a mask works the best it can: (1) make sure the mask fits snugly against the face and (2) pick a mask with layers, or double mask.

The guidance, presented in the form of an illustrated poster, titled “Improve How Your Mask Protects You,” includes specific recommendations for how to wear a mask for maximum protection against contracting or transmitting the coronavirus including to:

  • Choose a mask with a nose wire;
  • Use a mask filter or brace to prevent air leakage;
  • Check for a snug fit over nose, mouth and chin;
  • Wear a cloth mask with multiple layers or a disposable mask under a cloth one; and
  • Knot and tie ear loops of 3-ply masks where they join the edge of the mask and tuck in any unneeded material around the edges (see CDC’s instructional video).

The guidance also includes recommendations of what not to do, including, not to:

  • Combine disposable masks; or
  • Combine a KN95 mask with any other mask.

Overall, the guidance reiterates the importance of correct and consistent mask use as a critical step everyone can take to prevent getting and spreading COVID-19.  It reminds people that “masks work best when everyone wears them, but not all masks provide the same protection” and when choosing a mask to “look at how well it fits, how well it filters the air, and how many layers it has.”

*          *         *

Please contact Susan Gross Sholinksy for assistance with questions regarding the CDC’s new mask guidance.

*Law Clerk – Admission Pending

Our colleagues Susan Gross Sholinsky, Genevieve M. Murphy-Bradacs, Ann Knuckles Mahoney, and Jenna D. Russell of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “Latest New York State Department of Labor Guidance Significantly Expands COVID-19 Sick Leave Obligations”.

The following is an excerpt:

On January 20, 2021, the New York State Department of Labor (“NY DOL”) issued another round of guidance (“Guidance”) on the use of COVID-19 sick leave under the New York State COVID-19 Sick Leave Law (“Law”). Supplementing prior state guidance,[1] this Guidance appears to actually expand the Law by increasing the availability of paid leave. For example, the Guidance now obligates an employer to pay an employee who is required to remain out of the workplace by the employer due to actual or potential exposure to the virus. Under the Law, however, an employee is entitled to paid leave only if he or she is subject to a mandatory or precautionary order of quarantine or isolation (“QO”).

As we previously reported, the Law provides all employees subject to a QO issued by an authorized governmental entity with up to 14 calendar days of COVID-19 sick leave, depending on the employer’s size and net income.[2] The Law also mandates job protection for all employees for the duration of the quarantine, regardless of employer size or profitability, and, where applicable, provides access to expanded paid family leave and temporary disability benefits as well. Benefits under the Law, however, are not available to employees who are asymptomatic or not yet diagnosed with any medical condition where the employee is physically able to work remotely while under a QO.

Click here to read the full piece. 

Our colleagues Susan Gross Sholinsky, Ann Knuckles Mahoney, Jennifer L. Nutter, and Eduardo J. Quiroga of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “Roadmap to Compliance: Major Employment Laws Effective as of January 2021 and Beyond”.

The following is an excerpt:

While state legislatures focused much-needed attention on pandemic-related legislation throughout most of 2020, many continued to alter their employment laws in significant ways, or simply had previously passed laws scheduled to take effect at the start of 2021.

Some of the most prominent trends at the state and local level include creating or expanding paid leave benefits, pay equity, and anti-discrimination rules; restricting criminal background checks; and limiting the scope of non-compete laws. Employers should review these developments and consider updating their policies and procedures accordingly.

Click here to read the full piece.

Our colleagues David S. Poppick and Carol J. Faherty of Epstein Becker Green have co-authored an article in Thomson Reuters Practical Law that will be of interest to our readers: “Non-Compete Laws: Connecticut – 2021 Update”.

The following is an excerpt:

This Q&A addresses enforcement and drafting considerations for restrictive covenants such as post-employment covenants not to compete and non-solicitation of customers and employees. Federal, local, or municipal law may impose additional or different requirements. …

In particular, this Q&A addresses:

    • Overview of State Non-Compete Law
    • Enforcement Considerations
    • Blue Penciling Non-Competes
    • Choice of Law Provisions
    • Reasonableness of Restrictions
    • Remedies
    • Other Issues

Click here to download the full version in PDF format.

Our colleagues Maxine Neuhauser and Eric I. Emanuelson, Jr. of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “Remote Workforce or Not, New Jersey Employers Must Ensure Notices and Posters Remain Up to Date.”

The following is an excerpt:

The year 2020 brought significant changes nationwide to how and where employees work and expanded the legal landscape. The expectations of employer compliance with employment law, however, remained unchanged. In New Jersey, for example, 2020 brought a package of legislation aimed at independent contractor misclassification, amendments to the Family Leave Act (“NJFLA”), the Earned Sick Leave Law (“ESLL”), and the New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act, commonly referred to as the New Jersey WARN Act (“NJ WARN Act”). Further, the New Jersey Supreme Court ruled that the state’s Law Against Discrimination (“NJLAD”) entitles medical marijuana patients to reasonable accommodation in the workplace. This is not to mention all the COVID-19 guidance and executive orders changing by the week.

Several of these new laws have resulted in changes to employer notice and posting requirements or updates to the official posters. Therefore, we recommend that New Jersey employers review the following summary and ensure that their workplace posters and employee notices remain in compliance.

Click here to read the full piece.

Our colleagues Jennifer Barna, Scarlett L. Freeman, and Nathaniel M. Glasser of Epstein Becker Green have a new post on the Workforce Bulletin blog that will be of interest to our readers: “EEOC Updates COVID-19 Guidance on Employer Administered or Mandated Vaccinations.”

The following is an excerpt:

As the first wave of COVID-19 vaccinations are being administered across the United States, employers are considering whether to mandate and/or administer the COVID-19 vaccine to employees.  On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released updates to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Technical Assistance Questions and Answers publication, addressing potential concerns with vaccine administration and anti-discrimination laws the EEOC enforces.

The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

Click here to read the full post on the Workforce Bulletin blog.