Health Law Advisor

Effective November 16, 2022,  non-governmental health care entities must offer eligible employees continued employment for at least four months following a change in control without any reduction in their wages and benefits – including paid time off, health care, retirement, and education benefits in accordance with Senate Bill No. 315 (the Law). Change in control includes sales, transfers, assignments, mergers, and reorganizations and is deemed to “occur on the date of execution of the document effectuating the change.”

On March 22, 2022, the Occupational Safety and Health Administration (OSHA) announced that it had partially reopened the comment period for its permanent standard to protect health care and health care support workers from exposure to COVID-19 in the workplace.

Important guidance regarding COVID-19 testing in the workplace was recently issued by the Centers for Medicare & Medicaid Services (“CMS”) in the form of Frequently Asked Questions regarding Over the Counter (“OTC”) Home Testing and CLIA Applicability.

CMS regulates clinical laboratory testing pursuant to the federal Clinical Laboratory Improvement Act (“CLIA”). Generally, a laboratory or clinical setting (such as a physician’s office) must obtain CLIA certification to perform laboratory testing. Some OTC tests, however, are approved by the Food and Drug Administration (“FDA”) for home use and the new FAQs address the use of OTC home tests in the workplace.

On December 13, 2021, the Supreme Court of the United States rejected the petition of New York health care workers seeking to stop the State from enforcing regulations requiring covered personnel of hospitals, nursing homes, public health centers, and other health care entities to be fully vaccinated against COVID-19 as a condition of continued employment, subject to narrow exceptions. The Supreme Court’s unsigned order allows the continuing enforcement of the regulations, as litigation of the multiple lawsuits challenging the statewide vaccine mandate for health care workers issued last August continues.

On August 26, 2021, the Public Health and Health Planning Council approved an emergency regulation requiring health care personnel to be fully vaccinated against COVID-19. The emergency regulation is effective immediately and will remain in effect for 90 days, subject to review and renewal.

The emergency regulation supersedes the Section 16 Order issued by the New York Department of Health (“DOH”) on August 18, 2021, which mandated the vaccine for personnel at general hospitals and nursing homes.

The emergency regulation expands the mandate to cover personnel at entities ...

On June 12, 2021, a federal District Court in Texas soundly rejected an attempt by Houston medical workers to challenge the legality of their employer’s decision to require that all employees receive a COVID-19 vaccine. In the lawsuit, Bridges, et al. v. Houston Methodist Hospital et al., 117 hospital workers sued for an injunction to block the hospital’s mandatory vaccination policy as well as the termination of any employee unwilling to comply with the employer’s mandate that all employees be vaccinated against COVID-19. More specifically, the employees asserted that the ...

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 — ...

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 ...

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 ...

On July 16, 2019, the New Jersey Supreme Court (“Court”) granted certification to review the Appellate Division’s decision in Wild v. Carriage Funeral Holdings, which ruled that the New Jersey Law Against Discrimination’s (“LAD”) requirement that employers reasonably accommodate disabilities applied to an employee’s use of medical cannabis legally prescribed pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”[1]). Employers may expect to see additional direction regarding their obligation to accommodate employees’ use ...

On July 2, 2019, New Jersey joined Illinois, Nevada, New Mexico, New York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered ...

On June 5, 2019, Governor Steve Sisolak of Nevada signed AB 132 (the “Law”), which prohibits employers from declining to hire a prospective employee based on pre-employment marijuana drug tests. On the heels of a new New York City law which prohibits employers from requiring pre-employment drug testing for marijuana and tetrahydrocannabinols (the active ingredient in marijuana), Nevada is now the first state to prohibit employers from using pre-employment drug tests to screen out applicants who use marijuana.

Under the Law, beginning January 1, 2020, employers in Nevada ...

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 ...

New Jersey’s Appellate Division recently held that a jury waiver provision was unenforceable as to a former employee’s statutory employment claims. In Noren v. Heartland Payment Systems, Inc., Docket No. A-2651-13T3, __ N.J. Super. __ (Feb. 6, 2017), plaintiff signed an employment agreement with his then-employer that provided:

HPS and RM [employee] irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.

Following his termination of employment, Noren sued Heartland alleging, inter alia

The increased use of portable electronic devices in the workplace and the popularity of social media pose unique challenges for health care employers, particularly when the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) conflict with the NLRB’s position on policies that could infringe upon an employee’s right to engage in concerted activity under the NLRA.

HIPAA governs the use and disclosure of protected health information (“PHI”) by health care providers. HIPAA violations may occur when health care employees post ...

[caption id="attachment_2401" align="alignright" width="113"] Denise Dadika[/caption]

In a matter highlighting the importance of workplace violence prevention programs, Epic Health Services, a national home health care provider, was recently issued a citation and fine by the Occupational Safety and Health Administration (“OSHA”) for failing to protect its employees from the dangers of workplace violence. The fine and citation stemmed from a complaint by one of Epic’s nurses, who alleged she was sexually assaulted by a client while providing services in the ...

On Monday, June 27, 2016, the U.S. Supreme Court declined to review a D.C. Circuit Court of Appeals decision upholding the new U.S. Department of Labor’s (DOL) requirement that home care providers pay the federal minimum wage and overtime to home care workers.  As we previously discussed, on August 21, 2015, the D.C. Circuit in Home Care Association of America v. Weil affirmed the validity of the Home Care Final Rule, which eliminated a long-existing prior regulation and barred third-party employers from claiming minimum wage and overtime exemptions for home care workers.

The U.S ...

[caption id="attachment_2401" align="alignright" width="113"] Denise Dadika[/caption]

Everyone has “friends” who overshare their daily activities on Facebook.  Rodney Jones’ oversharing cost him his job.  Jones worked as an activity director for Accentia Health, a long–term care nursing facility.  Accentia Health granted Jones 12 weeks of FMLA and an additional 30 days of non-FMLA leave in connection with his shoulder surgery.  Prior to the end of Jones’ leave, Accentia Health learned that Jones was posting about his leave activities on Facebook, including his ...