Labor & Employment

Covid-19 Pharmacy Testing

On October 1, 2020, Husch Blackwell conducted the first of an eight-part Health Law & Innovation Series. The first session, focused on vaccines, and was very well received. The discussion was moderated by Thomas N. Shorter, JD, FACHE, partner with Husch Blackwell and accompanied by panelists:

  • Dr. Edward Belongia, Director of the Center of Epidemiology and Population Health, Marshfield Institute of Health,
  • Seth Mailhot, JD, partner with Husch Blackwell; and
  • Julianne Story, JD, partner with Husch Blackwell.
Team of healthcare workers

The Healthy Families and Workplaces Act (HFWA) introduces changes to paid sick and family leave that will impact Colorado employers in potentially significant ways. Also, the new law codifies whistleblower protections for workers who raise concerns about workplace safety related to a public health emergency, potentially spawning a wave of future lawsuits.

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The Families First Coronavirus Response Act (the Act) was passed and signed into law on March 18 and will go into effect on April 2, 2020 and continue until December 31, 2020. As our colleagues Josef Glynias and Paul Pautler noted in their excellent summary, this Act has two provisions which speak to employee leave and may have significant implications for employers, including healthcare providers. The Department of Labor has not yet issued guidance on this Act, and we will update this blog as guidance is issued.

A teaching hospital in Connecticut affiliated with Yale Medical School is facing age and disability discrimination allegations after imposing mandatory medical testing for doctors 70 and older who seek medical staff privileges.  The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed suit against Yale New Haven Hospital, claiming that subjecting older physicians to medical testing before renewing their staff privileges violates anti-discrimination laws.

According to the EEOC, the hospital’s “Late Career Practitioner Policy” dictates that medical providers over the age of 70 must undergo both neuropsychological and ophthalmologic examinations – a policy the federal agency claims violates both the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”).  The EEOC claims that the individuals required to be tested are singled out solely because of their age, instead of a suspicion that their cognitive abilities may have declined. The agency further charges that the policy also violates the ADA because it subjects the physicians to medical examinations that are not job-related or consistent with business necessity.

Update on 12.9.19: On December 4th, 2019, the governor of Illinois signed into law an amendment to the Act allowing employer action based on drug testing  when the testing is part of a reasonable, non-discriminatory drug policy, including any pre-employment testing policies. We will discuss the Act and implications of the amendment as well as the other evolving cannabis legal issues for healthcare employers and educators in our December 10, 2019 webinar.

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In less than two months the Illinois Cannabis Regulation and Tax Act (the “Act”) will come into effect. On January 1, 2020 the Act will legalize adult-use retail marijuana across the state and bring with it a hefty regulatory framework. As part of that framework, employers—particularly hospitals, academic medical centers and other employers subject to complex, overlapping and sometimes contradictory workplace regulations—will now be prohibited from firing employees for off-duty marijuana use, requiring an overhaul of most employers’ drug policies.

Courts recognize the complication that exists when determining what constitutes actionable harassment where a healthcare employee is a caretaker for a patient with diminished capacity. The Fifth Circuit Court of Appeals recently reviewed this issue in a Title VII case that highlights the risks posed to employers in the healthcare and social assistance industries by patient harassment and violence: Gardner v. CLC of Pascagoula, LLC, No. 17-60072 (February 6, 2019). In Gardner, the Fifth Circuit explained the risks to healthcare employers when it reversed summary judgment on a nurse assistant’s claim for hostile work environment and retaliation, holding that a genuine dispute of material fact existed as to whether an assisted living facility took reasonable precautions to prevent sexual harassment and physical violence by a resident.

Background

Gardner was a Certified Nursing Assistant employed at the Plaza Community Living Center, an assisted living facility, and “often worked with patients who were either physically combative or sexually aggressive.” Gardner had been assigned to work with a patient who had been diagnosed with multiple “physical and mental illnesses,” and had a reputation for groping female employees, as well as a history of violent and sexual behavior toward both patients and staff at the facility. Gardner alleged that she put up with propositioning and sexual assault by the patient on a regular basis, but that when she complained to the administrator at the facility, she was told to “put [her] big girl panties on and go back to work.”

In the wake of the #MeToo Movement, New York, California and a number of other jurisdictions, both local and state, have passed new laws aimed at combatting sexual harassment in the workplace.  The New York laws require written sexual harassment prevention policy, assurance that all current and new employees, and even applicants for employment, receive a copy of the policy, and mandate annual sexual harassment training for all employees.  In addition, New York law now provides that employers can be liable for sexual harassment of nonemployees in the workplace, such as contractors, vendors and subcontractors.  Recent legislation prohibits employers from using mandatory arbitration provisions in employment contracts or nondisclosure agreements except when this is the victim preference.  Let me suggest that there are some important lessons to be learned from these laws.

There were several recent court decisions that have addressed the right of medical providers, acting under assignments of ERISA plan benefits from patients, to seek plan documents and summary plan descriptions, and to sue plan fiduciaries.

In one case, the district court dismissed the action, holding that the patients had not assigned their rights to sue the plan for statutory penalties. The provider attempted to obtain a retroactive assignment, but the Eleventh Circuit court of appeals held that the provider was not a participant nor a beneficiary in the plan and thus had no standing to bring a claim.

The National Labor Relations Board (the “Board”) recently held that a California hospital illegally maintained a dress code policy that effectively prohibited employees from wearing pins and badge reels with union insignia.  The hospital’s policy at issue required that “[o]nly [employer] approved pins, badges, and professional certifications may be worn.” In addition, employees were only permitted to wear identification badge reels with “approved logos or text.”