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.

Our colleague Nathaniel M. Glasser and Jennifer Barna of Epstein Becker Green have co-authored an article in Bloomberg Law that will be of interest to our readers: “COVID-19 Vaccines and Workplace Challenges.”

The following is an excerpt:

As COVID-19 vaccines become widely available, employers will face a critical set of challenges, ranging from whether they can—or will want to—mandate all or some employees get vaccinated, to what liability may attach to mandating vaccination, and even whether the Occupational Safety and Health Administration (OSHA) could require a vaccine program.

While uncommon, mandatory vaccination policies are not new. For example, many health-care employers have implemented mandatory flu vaccination programs to protect staff and patients. The size and scope of the current pandemic, coupled with the desire to swiftly return employees to the physical workplace, however, means that more employers across various industries will likely consider mandating that their employees receive a COVID-19 vaccine once one becomes available.

Employers need to stay ahead of workplace COVID-19 vaccine issues with awareness and planning, so they can adapt their policies to meet the moment. Following are several of the most common questions employers should be prepared to answer in considering COVID-19 vaccination programs.

Click here to download the full version in PDF format.

Our colleagues David M. Prager, Jennifer L. Nutter, Alice Kwak, and Mary T. Vu at Epstein Becker Green recently published an Act Now Advisory that will be of interest to our readers in the health care industry: “Annual California Employment Law Update: New Laws for 2021 Provide COVID-19 Protections and Expand Family Leave.” This year, Governor Gavin Newsom signed numerous employment-related bills passed by the California Legislature. Major changes affecting employers with California operations in the coming year include:

  • requiring COVID-19 supplemental paid sick leave for certain health care providers and emergency responders, persons employed by private businesses of 500 or more employees, and food sector workers;
  • creating a rebuttable presumption for purposes of workers’ compensation that a covered employee contracted COVID-19 at work; and
  • expanding job-protected family leave for employees of companies with five or more employees.

The following is an excerpt:

COVID-19 Supplemental Paid Sick Leave. Effective immediately, AB-1867 requires that employers with 500 or more employees nationwide provide up to 80 hours of COVID-19 supplemental paid sick leave (“SPSL”) to employees who leave their homes to perform work. The law also applies to health care employees and emergency responders whose employers opted out of compliance with the federal Families First Coronavirus Response Act (“FFCRA”).

For purposes of determining whether an employer has 500 or more employees in the United States, employees are counted in the same manner as they are counted under the FFCRA, meaning that either this law or the FFCRA will apply to employees working in California.

Read the full Advisory here.

Our colleagues

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 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 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.