Employment Training, Practices & Procedures

Our colleagues Frank C. Morris Jr., Jonathan K. Hoerner, and Katherine Smith—attorneys at Epstein Becker Green—authored an article in Healio titled “4 Ways to Address the #MeToo Era in Health Care.”

Following is an excerpt:

The #MeToo movement has its roots in Hollywood and the entertainment industry, but its branches extend into myriad other industries including journalism, the financial sector, government, athletics, tech, academia, and even the federal judiciary. The health care sector is no exception, despite its guiding principle to “first do no harm.”

Studies assert that sexual harassment is pervasive in the health care space. An academic medical faculty study published in 2016 found approximately 30% of female physicians surveyed reported having personally experienced sexual harassment by a superior or colleague, compared with 4% of men. Statistics from the Equal Employment Opportunity Commission (EEOC) indicate that at least 3,085 employees at general medical and surgical hospitals filed sexual harassment claims between 1995 and 2016 (or about 147 per year).

Some of these sex harassment claims turned out to be very costly for employers. In September 2013, a dental assistant at the University of Connecticut Health Center sued her employer claiming gender discrimination and a hostile work environment under Title VII of the Civil Rights Act of 1964. A jury found in her favor on March 30, 2017, awarding her $200,000, although the court later reduced the award to $125,000. Though damages in Title VII claims are capped, plaintiffs may also bring claims under state or local laws, which provide for greater damages.

Read the full article here.

Effective April 1, 2018, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. This mandate is intended to protect hospital employees from workplace violence caused by patients and/or family members.

Taking several years to develop, this statute was conceived by California’s Division of Occupational Safety and Health (“Cal OSHA”), in conjunction with professional nursing organizations such as California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported.

Under the new law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

In the midst of one of the worst flu seasons to date, many hospitals and other health care organizations enforced mandatory flu vaccine policies for their employees to boost vaccination rates. However, recent litigation and governmental actions should serve as a reminder that health care entities should carefully consider safeguards whenever implementing mandatory vaccine policies and to not categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

In January, the Department of Health and Human Services (HHS) announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR) and released a proposed rule to provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral conviction. Recent legal challenges to mandatory vaccination policies in the health care context have also gained media attention.

Earlier this month, the United States Department of Justice (DOJ) accused a county-owned skilled nursing facility (SNF) in Wisconsin of violating a certified nursing assistant’s religious rights when it required her to be vaccinated or be terminated if she refused.  Although the certified nursing assistant believed that the Bible prohibited her from receiving the vaccine, the SNF refused to grant her an exemption from its vaccination policy because she was unable to produce a written statement from the clergy leader supporting her request, as the SNF’s exemption policy required. The DOJ complaint asserts that the SNF’s vaccination policy denies religious accommodations to employees who do not belong to churches with clergy leaders and that the SNF unlawfully denied the employee a reasonable accommodation for her religious beliefs when it refused her request for an exemption.

However, not all requests for accommodation must be honored.  In Fallon v. Mercy Catholic Medical Center, an employee sued his hospital employer for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964 when the hospital terminated him for refusing to get his annual flu shot. The Third Circuit Court of Appeals sided with the hospital and held that the employee’s “sincerely held beliefs” were not religious but based on health concerns, and therefore, the hospital did not violate Title VII.

In another recent development, a Massachusetts state Superior Court dismissed a lawsuit filed by the Massachusetts Nurses Association against Brigham and Women’s Hospital for lack of standing when the union challenged the hospital’s flu vaccination policy. The dismissal occurred a few months after the court denied the union’s request for an injunction.  Thus, a plaintiff’s standing to challenge mandatory vaccination policies will be scrutinized.

Key Takeaways

Despite the actions of DOJ and HHS, health care employers are well within their rights to implement a mandatory flu vaccination policy, especially considering the potential implications to patient safety. Employers need to be prepared to handle requests for reasonable accommodations made by employees who have sincerely held religious beliefs against flu vaccination.  When presented with such a request for accommodation, employers should engage in the interactive process with the employee as outlined in this recent blog post.

To lessen the risk of infringing on worker’s rights, many health care entities are employing non-mandatory tools and policies to boost employee vaccine participation through positive enforcement rather than with the threat of being fired. For example, health care entities can ensure that employees are educated and reminded about the benefits of being vaccinated, provide free and convenient access to vaccines, and issue small incentives and rewards to employees who are vaccinated.

Whenever implementing a mandatory vaccination policy, employers should be prepared for a challenge. Essentia Health required its employees to receive the flu vaccination and sustained a public legal challenge from three hospital unions.  Essentia prevailed, discharging 50 workers who refused to be vaccinated.

Lastly, health care entities should review applicable state-worker vaccination laws to ensure they are in compliance with such laws when deciding upon vaccination policies.

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex.

In reaching its decision, the court concluded that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” As the court explained, “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”  Finding that Stephens would not have been fired if she had been a woman who sought to comply with the women’s dress code, the court determined that Stephens’s sex impermissibly affected the termination decision.

Harris Funeral Homes attempted to defend its termination decision under the Religious Freedom Restoration Act (“RFRA”), but the majority rejected this argument: “RFRA provides the funeral home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden [owner Thomas] Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.”

In addition to providing Title VII coverage to transgender and gender nonconforming individuals, the Sixth Circuit’s decision marks another victory for the EEOC, whose position was similarly adopted less than two weeks ago by the Second Circuit in Zarda v. Altitude Express. In that case, the Second Circuit held that discrimination on the basis of sexual orientation is discrimination based on sex and prohibited by Title VII.  As federal courts begin to reexamine earlier rulings that deny coverage to LGBT employees, employers are advised to conform their policies to EEOC guidance prohibiting discrimination based on gender identity or expression.

Our colleague Daniel R. Levy, at Epstein Becker Green, has a post on the Trade Secrets & Employee Mobility blog that will be of interest to our readers: “It’s a Brave New World: Protecting Trade Secrets When Traveling Abroad with Electronic Devices.

Following is an excerpt:

Consider the following scenario: your organization holds an annual meeting with all Research & Development employees for the purpose of having an open discussion between thought leaders and R&D regarding product-development capabilities. This year’s meeting is scheduled outside the United States and next year’s will be within the U.S. with all non-U.S. R&D employees traveling into the U.S. to attend. For each meeting, your employees may be subject to a search of their electronic devices, including any laptop that may contain your company’s trade secrets. Pursuant to a new directive issued in January 2018 by the U.S. Custom and Border Protection (“CBP”), the electronic devices of all individuals, including U.S. citizens and U.S. residents, may be subject to search upon entry into (or leaving) the U.S. by the CBP. …

Read the full post here.

Last week, the federal Department of Health and Human Services (HHS) made two announcements aimed at providing additional protections for health care workers who object to providing services on moral or religious grounds.

On January 18, 2018, HHS announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR).  The stated goal of the new division is to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

The next day, on January 19, HHS released a proposed rule that would provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral convictions.  Finding support in the First Amendment and federal anti-discrimination statutes, the proposed rulemaking is intended to protect doctors and nurses with moral or religious objections to participating in certain procedures such as abortions, assisted suicide, sterilization, vaccination, and other matters of conscience.  Construed broadly, the rule may also cover conscience objections to treating transgender patients or issues of gender identity.

The proposed rule applies to entities that receive funds through programs funded or administered in whole or in part through HHS, such as hospitals, nursing homes, clinics, physician offices, universities, and more.  Public comments are now being accepted on the proposed rule through March 27, 2018.

The rule likely will lead to increased scrutiny from OCR and the newly formed Conscience and Religious Freedom Division.  The Washington Post has quoted OCR Director Roger Severino about the more than three-fold increase in the number of worker complaints related to moral and religious beliefs since President Trump’s election.  Severino stated that a career senior executive will be appointed to investigate such issues.  Under the rule, OCR would have the authority to initiate compliance reviews, conduct investigations, coordinate compliance, and use enforcement tools comparable to those available under other civil rights laws.

Once finalized, the rule will have an immediate impact on how health care providers assign employees, discipline for failures or refusals to perform certain services, and accommodate religious and moral beliefs.  The requirements may give rise to issues that will need to be addressed in collective bargaining agreements.  While we expect there to be legal challenges to the rule, employers should be prepared to both address employee concerns about providing services to which they have conscience objections, and to create alternative plans for treatment when such concerns are raised.

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.

The law also offers clarity on the definition of “gender,” and continues to include a person’s gender-related self-image, appearance, behavior, expression, or other gender-related characteristic within its scope.

The new law will take effect on May 11, 2018.

Further emphasizing the split in authority on sexual orientation discrimination, last month the Eastern District of Missouri dismissed plaintiff Mark Horton’s claim that Midwest Geriatric Management LLC (“MGM”) violated Title VII by rescinding an offer of employment after learning that he is gay. Horton v. Midwest Geriatric Mgmt., LLC, Case No. 4:17CV2324, 2017 U.S. Dist. LEXIS 209996 (E.D. Mo. Dec. 21, 2017).

Horton asserted that MGM unlawfully discriminated against him on the basis of sex and religion. Horton’s sex discrimination claim comprised three theories: (1) sexual orientation is necessarily discrimination based on sex; (2) discrimination on the basis of his association with a person of a particular sex (his male partner); and (3) nonconformity with sex stereotypes.  In granting MGM’s motion to dismiss, the district court cited Eighth Circuit precedent from a 1989 holding that Title VII does not cover discrimination based on sexual orientation, and concluded that both the sex and religious discrimination claims were merely refashioned sexual orientation discrimination claims.

The Eighth Circuit precedent, which comports with a recent decision in the Eleventh Circuit, contrasts with the EEOC’s position, adopted by the neighboring Seventh Circuit in Hively v. Ivy Tech Community College. In that case, the Seventh Circuit held that “a person who alleges that [he] experienced employment discrimination on the basis of [his] sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hively v. Ivy Tech Cmt. College, 853 F.3d 339, 351-52 (7th Cir. 2017). The Hively court based its holding on a conclusion that there is no difference between a gender nonconformity claim and one based on sexual orientation. Thus, “a policy that discriminates on the basis of sexual orientation . . . is based on assumptions about the proper behavior for someone of a given sex.” Id. at 346. The Court further cited a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Id. at 351.  While the Seventh Circuit is the first federal appellate court to find sexual orientation covered by Title VII, the Second Circuit is considering the question in en banc review.

Unlike the Seventh Circuit’s approach, the Eighth Circuit draws a distinction between discrimination based on sex stereotypes and that based on “notions of heterosexuality and homosexuality,” finding that Title VII protects against the former but not the latter. Though the basis for the claim is not always obvious, here—because Horton directly tied each of his claims to his homosexuality—the Court did “not struggle with exactly where to draw the line between actionable discrimination based on what is alleged to be gender non-conforming behavior and non-actionable discrimination based on sexual orientation.”

Despite the circuit split and legal uncertainty on the federal level, employers should be aware that many state and local laws offer protections against sexual orientation discrimination. And properly pled gender nonconformity claims may be pursued even in jurisdictions that do not recognize sexual orientation discrimination.  Thus, employers should train their employees to treat all employees equally in the workplace to prevent such claims.

On January 8, 2018, former New Jersey Governor Chris Christie signed new legislation (the “Amendment”) amending the New Jersey Law Against Discrimination (“NJLAD”) to add breastfeeding as a protected class under the law. The Amendment, which takes effect immediately, makes it unlawful to discriminate or retaliate against an employee that the employer knows, or should know, is either breastfeeding or expressing milk for her infant child.

The Amendment also requires employers to provide reasonable accommodations to nursing women, unless it would result in an undue hardship to the employer, and specifically requires employers to provide:

  1. Reasonable break time each day for the employee to express breast milk for her child; and
  2. A suitable location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for her child.

To determine whether an accommodation would provide an undue hardship, the NJLAD provides that the following factors should be considered:

  • the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget;
  • the type of the employer’s operations, including the composition and structure of the employer’s workforce;
  • the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
  • the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

The Amendment also provides that breastfeeding employees are entitled to paid or unpaid leave as a reasonable accommodation, in the same manner as “provided to other employees not affected by pregnancy or breastfeeding but similar in their ability or inability to work.” While the Amendment does not provide an express right to leave, it requires employers to treat such a leave request as they would any other request for leave.

While many New Jersey employers have already been subject to similar requirements to provide breaks and private spaces for nursing mothers to express breast milk in accordance with the Patient Protection and Affordable Care Act’s 2010 Amendment to the federal Fair Labor Standards Act (“FLSA”), the key differences between the breast feeding protections in the FLSA and in the NJLAD are:

  1. Which employees are covered? The FLSA’s protections apply only to “non-exempt” workers (i.e., those workers entitled to overtime pay), while the NJLAD’s protections apply to all New Jersey employees.
  2. Which employers are covered? Small businesses (fewer than 50 employees) may not be covered by the FLSA break-time-for-nursing-mothers provision if they can demonstrate that compliance with the provision would impose an undue hardship. The NJLAD contains a similar “undue hardship” exception, but does not limit the exception to small businesses.
  3. How long must employers accommodate nursing mothers? Protections under the FLSA apply up until one year after the birth of the child, while the NJLAD’s protections do not provide a time limit and apply while the mother is “breast feeding her infant child.” The NJLAD does not define “infant child.”

What should employers do?

New Jersey employers should review their procedures and practices to ensure compliance with the Amendment by:

  1. Reviewing anti-discrimination and reasonable accommodation policies to ensure compliance with the law;
  2. Training supervisors and managers on how to handle accommodation requests related to breastfeeding;
  3. Providing an employee who is breastfeeding with reasonable break times and a suitable private location, other than a toilet stall, in close proximity to the work area to express breast milk for her child.

In addition, employers should consult with counsel before denying an employee an accommodation related to breastfeeding to determine whether an “undue hardship” may be established.

As 2017 comes to a close, recent headlines have underscored the importance of compliance and training. In this Take 5, we review major workforce management issues in 2017, and their impact, and offer critical actions that employers should consider to minimize exposure:

  1. Addressing Workplace Sexual Harassment in the Wake of #MeToo
  2. A Busy 2017 Sets the Stage for Further Wage-Hour Developments
  3. Your “Top Ten” Cybersecurity Vulnerabilities
  4. 2017: The Year of the Comprehensive Paid Leave Laws
  5. Efforts Continue to Strengthen Equal Pay Laws in 2017

Read the full Take 5 online or download the PDF.