34th Annual Workforce Management Briefing Banner

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker Neil Cavuto, Senior Vice President, Managing Editor, and Anchor for both FOX News Channel and FOX Business Network.

Our industry-focused breakout sessions will feature panels composed of Epstein Becker Green attorneys and senior executives from major companies, discussing issues that keep employers awake at night.  From the latest National Labor Relations Board developments to data privacy and security concerns, each workshop will offer insight on how to mitigate risk and avoid costly litigation.

View the full briefing agenda here. Contact Kiirsten Lederer or Elizabeth Gannon for more information and to register.   Seats are limited.

Immigartion Banner

Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to healthcare employers.

On February 24, 2015, the Department of Homeland Security (DHS) issued a final rule that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. H-4 spouses who fit the eligibility criteria will be able to apply for employment authorization starting on May 26, 2015.

Read the full Client Alert here.

Epstein Becker Green’s slides from the “Eye on Ebola: A Discussion About the Health Regulatory, Risk Management, and Labor and Employment Issues Impacting Health Care Providers” webinar is featured on the American Hospital Association’s Ebola Preparedness Resourcesclick here.

The November 17 webinar addressed the professional and business challenges encountered by health care providers dealing with Ebola and other infectious diseases, and featured 4 fantastic speakers.

  • Bruno Petinaux, M.D., Associate Professor, Co-Chief of the Emergency Management Section, Department of Emergency Medicine, George Washington University Medical Faculty Associates offered a clinical overview as well as a review of the guidelines which offer protocols for addressing concerns over Ebola and similar diseases.
  • Amy F. Lerman, Associate, Epstein Becker Green covered the health regulatory considerations.
  • George B. Breen, Member, Epstein Becker Green, Chair, Health Care and Life Sciences Practice Steering Committee elaborated on risk management issues providers might consider in developing a response strategy.
  • Frank C. Morris, Jr., Member, Epstein Becker Green, Employment, Labor and Workforce Management Practice discussed the resulting labor and employment considerations facing health care employers.

The webinar slides and recording can also be found here on Epstein Becker Green’s website.


Health care employers doing business in New York City should take note of a new ordinance Mayor Bill de Blasio signed into law on October 20, 2014 – The Affordable Transit Act. 

The Affordable Transit Act (the “Act”) requires employers in New York City with 20 or more full-time employees to offer pre-tax transit benefits to employees. The Act allows employees to use up to $130 in tax free money towards their transit costs, which is the current IRS limit.  Full-time employees are defined as employees working an average of 30 hours or more per week. 

Penalties for violating the Act are $100-$250 for first time violations and $250 for repeat violations.  Health care employers, however, have 90 days to cure the first violation before any civil penalties will be imposed and penalties will not be imposed on any employer more than once in any 30-day period.

Health care employers are exempt from the Act if a collective bargaining agreement covers the relevant employees or where the health care employer is not required to pay federal, state and city payroll taxes.  In addition, the Department of Consumer Affairs may waive the requirements if an employer demonstrates that offering the benefit is a financial hardship.

According to the Mayor’s office, the legislation is expected to save employees over $400 a year on Metro Card expenses and employers more than $100 per year per employee in tax liability.  The Mayor’s office also predicts that the Act will extend transit benefits to more than 450,000 employees in NYC who are not currently offered them.

The Act takes effect on January 1, 2016 but in order to allow businesses adequate time to adjust to the new law, employers will not be subject to penalties prior to July 1, 2016. 

Employers who do not already offer pretax transit benefits should take the next year to ensure compliance with the new law, assess and make any necessary changes to their payroll and benefits systems, and prepare communications to employees.

A Nelson Hardiman and Epstein Becker Green Webinar Series

The post-acute spectrum of care is going through a period of profound legal changes, from newly emerging risks to integration with acute care and the transition to managed care. This series features leading attorneys sharing insights into compliance challenges and strategies. Join us for this series and stay ahead of the latest regulatory updates in long-term care.

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A Complimentary Two-Part Webinar on the Americans with Disabilities Act (ADA)

Health Care Entities and the ADA: Part I – Complex Issues in the Reasonable Accommodation of Employees with Disabilities

Wednesday, June 18, 2014, at 12:00 PM – 1:00 PM (EDT)

Frank C. Morris, Jr., Epstein Becker Green
Andrea R. Calem, Epstein Becker Green

Health Care Entities and the ADA: Part 2 – Complex Issues in the Reasonable Accommodation of Patients, Residents & Guests with Disabilities

Wednesday, July 16, 2014, at 12:00 PM – 1:00 PM (EDT)

Frank C. Morris, Jr., Epstein Becker Green
Andrea R. Calem, Epstein Becker Green

To register for this webinar, please click here.

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Therapy Utilization: Evolving Rules and Enforcement

Wednesday, August 20, 2014, at 12:00 PM – 1:00 PM (EDT)

Harry Nelson, Nelson Hardiman
Robert E. Wanerman, Epstein Becker Green

Wage & Hour Issues in Post-Acute Care

Wednesday, September 17, 2014, at 12:00 PM – 1:00 PM (EDT)

Adam C. Abrahms, Epstein Becker Green
Aaron F. Olsen, Epstein Becker Green

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If you have questions regarding this event, please contact Kiirsten Lederer at (212) 351-4668, or klederer@ebglaw.com.

Epstein Becker & Green, P.C. attorneys Jennifer Goodwin, David Matyas, and Deepa Selvam coauthored an article addressing the importance of promoting greater diversity in the health care workforce.  Read the article – “Promoting Greater Diversity in the Healthcare Workforce” – in its entirety, as published in the October 2012 issue of AHLA Connections.


Written By: Adam C. Abrahms

Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity.  The NLRB’s announcement  of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”  

The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.”  The main feature of the webpage is an interactive map of the United States which highlights cases from various regions as examples of the Board’s activities on behalf of non-union employees who were engaged in activity the Board considers protected even though it is unrelated to union organizing.  Examples include cases involving employees complaining about safety issues, employees posting statements on Facebook and videos on YouTube critical of the employer, employees discussing workplace issues with the news media, employees “violating” an employer handbook’s unlawful confidentiality policy and employees  signing letters to management complaining about wage cuts.

The new webpage is part of the NLRB’s concentrated effort to inform non-union employees of the rights protected by the Act and the availability of the agency as a resource to employees who feel they had their rights violated.  This new webpage should be viewed in the same vein as the Board’s parallel efforts to require all employers to post  a “Employee Rights Notice Posting,”  print and distribute brochures and bring media attention to its aggressive pursuit of cases involving employers’ social media policies.  While the posting requirement has been enjoined by the U.S. Court of Appeals, the other more informal efforts of education and outreach like the webpage, brochures and media attention cannot be challenged and are likely to continue to expand.

In announcing the new webpage NLRB Chairman Mark Gaston Pearce made the agency’s goal clear, stating:

A right only has value when people know it exists…  We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.

Given the NLRB’s continuing efforts, hospitality employers must be more mindful than ever that their policies and actions could be scrutinized by an aggressive National Labor Relations Board even if they do not have a union.  As the agency’s efforts continue, employers should expect more employees to be aware of their option to bring complaints to the Board for adjudication.  When employees do so, employers can also expect for the agency’s investigation to reach not only the specific incident involving the complaining employee but potentially the lawfulness of the employers’ general policies and procedures.  Either way, employers must consider whether their policies and actions impact or interfere with protected concerted activity even where there is no union present.

Epstein Becker Green is proud to announce that it has received the 2012 Chambers USA Award for Excellence in the Healthcare category. The results were announced at an awards dinner held on Thursday, June 7, 2012, in New York. Other firms nominated in the Healthcare category included Akin Gump Strauss Hauer & Feld LLP; Hogan Lovells US LLP; King & Spalding LLP; McDermott Will & Emery LLP; Ober Kaler Grimes & Shriver PC; and Proskauer Rose LLP.

The Chambers USA Awards for Excellence are based on research for the 2012 edition of Chambers USA: America’s Leading Lawyers for Business and reflect a law firm’s preeminence in key practice areas. They also reflect notable achievements over the past 12 months, including outstanding work, impressive strategic growth, and excellence in client service.

In addition to receiving an Award for Excellence, Epstein Becker Green ranked No. 1 in Healthcare in New York and in the District of Columbia in Chambers USA (2012) and was acknowledged in the guide’s “Nationwide Healthcare” category. Also, the editors noted that “Epstein Becker Green is recognized by sources as one of the leading national labor and employment firms.” In total, 24 Epstein Becker Green lawyers are cited as “Leaders in Their Field.”

Read the Full Announcement

In 2012, both of Epstein Becker Green’s founding practices, Health Care & Life Sciences and Labor & Employment, as well as several individual attorneys, were recognized as leaders in their fields of practice.

Specifically, Jay P. Krupin and Steven Swirsky were recognized in the Labor and Employment Management Relations Category.

Click here to read more about Epstein Becker Green’s recognition by Legal 500 United States

A significant majority of all professional liability coverage available to physicians these days is provided on a “claims-made” basis, with a claim being covered only if (i) the claim arose out of professional services rendered during the term of the professional liability policy, and (ii) notice of the claim is provided by the insured during the term of the policy. (This is in contrast to “occurrence coverage,” where a claim is covered if it related to professional services rendered during the term of the policy, regardless of when notice of the claim is provided by the insured.)  Where termination of the physician’s employment results in termination of the claims-made professional liability insurance policy, there may be a break or gap in coverage, depending upon the new professional liability coverage put in place with the physician’s new employer. Specifically: 

  • The physician’s prior coverage would no longer protect the physician, since that coverage terminated; any claim subsequently brought against the physician, relating to professional services rendered while an employee, would be asserted outside of the policy period.
  • Conversely, the physician’s new coverage, if also a claims-made policy, would only cover professional services rendered while an employee under the new employment arrangement; it would not cover claims arising out of services rendered under the former employment arrangement, even if asserted while the new policy was in place.

In some cases, this gap or break in coverage can be handled without the need for “tail coverage” – – or, in formal terms, an “extended reporting endorsement,” which extends the time during which a claim can be filed under the old malpractice policy for an additional period, ranging from one year through forever, depending upon the additional premium paid.  For example, some insurers are willing to provide “nose coverage”, which would involve the new insurer agreeing, for a relative small premium increase, to look backwards and cover the physician for claims arising prior to the start of the new coverage, if the claim is asserted while the new policy is in place.  Or, even better, some insurers agree to use the physician’s original “retroactive date” – – the date on which the physician’s prior coverage started – – as the agreed upon start date for coverage under the new policy.  (This normally occurs with relatively new physicians who have not yet had time to establish a claims history.)  Finally, some insurers provide free “tail coverage” for physicians who retire or who practice for a minimum number of years under the same policy.

In the absence of one of these special cases, however, the physician will need “tail coverage” in order to be fully protected against malpractice liability.  (Note that the employer will want this coverage to be in place as well, as the absence of such coverage might expose the employer to additional risk, should the employer be sued as a result of the professional services rendered by its former physician employee.)  This may be an expensive proposition, however, as “tail coverage” premiums  can be equal to or as much as double the amount of the annual premium on a mature claims made policy.

Under the physician’s employment agreement, who pays for that coverage, following termination of employment?  In some cases, the employer will require the physician employee to pay, regardless of the grounds for termination.  This is becoming less likely, though, as physician recruitment becomes more competitive and the cost of bringing in a new physician employee increases.  Conversely, the employer may agree to pay the cost of the “tail coverage,” regardless of the grounds for termination.  This is relatively rare.  In between, there are any number of “fault based”  or “no fault” provisions which may be included in the physician’s employment agreement, to deal with payment for necessary “tail coverage”:

  • If either party terminates without cause, that party is responsible for paying the cost of the “tail coverage”.
  • If either party terminates with cause, the other party is responsible for paying the cost of the “tail coverage”.
  • The physician employee pays in most cases, but not if he/she is terminated without cause or if he/she retires.
  • The parties split the cost 50/50, regardless of the type of termination.
  • A phase-in arrangement can be used, where the percentage of the premium cost paid by the employer increases, as the physician employee remains with the practice for a longer period of time.

The Bottom Line:  There is a lot of misinformation floating around about “tail coverage.”  From this article alone, it should be clear that “tail coverage” is only needed to cover a break or gap in coverage, and only if another option (such as “nose coverage” or use of an earlier “retroactive date”) is not available.  When “tail coverage” is needed, however, it should be dealt with specifically in the physician’s employment agreement, with provisions identifying who is responsible for paying the costs associated with that coverage, and what happens if the responsible party fails to do so.