Total Articles: 59
FordHarrison LLP • March 15, 2020
As most employers know, on March 10, 2020, the World Health Organization (WHO) declared coronavirus disease 19 (COVID-19) a pandemic. While COVID-19 will impact employers in multiple ways, healthcare providers, including local government ambulance, EMT, firefighters, and similar workers, are those most affected by having to be at work during a pandemic. Accordingly, the factors healthcare employers must consider when dealing with absences due to virus symptoms, quarantines, and family care responsibilities are different from considerations relevant to employers in other industries. The following federal agency guidance may be useful for healthcare employers.
Jackson Lewis P.C. • December 16, 2019
Healthcare employers, human resource directors, in-house counsel, and other professionals who routinely deal with contracting issues should understand that physician employment arrangements are unlike other employment contracts. Physician employment (and independent contractor) agreements pose unique and heightened risks that deserve utmost caution.
Jackson Lewis P.C. • November 25, 2019
When is the last time one of your employees asked how much an in-network physician’s visit would cost? How much does a blood test cost at the hospital to which your doctor referred you, compared to the same blood test at another facility you could use?
Ogletree Deakins • November 24, 2019
On November 21, 2019, the U.S. House of Representatives passed House Resolution (HR) 1309, the Workplace Violence Prevention for Health Care and Social Service Workers Act, in a 251-158 vote.
Ogletree Deakins • November 15, 2019
Women make up the majority of employees in the healthcare industry. According to the Bureau of Labor Statistics, in 2018, 75 percent of hospital staff and nearly 80 percent of the staff of other health services were composed of women. In part due to the prevalence of female employees in the healthcare setting, the healthcare industry has moved to address lactation accommodation laws and implement lactation policies at a faster pace than other industries.
Jackson Lewis P.C. • November 13, 2019
Title VII of the Civil Rights Act requires healthcare employers to protect their medical staff and employees from harassment and discrimination and respond to any such behaviors swiftly and effectively, even if the actor is a patient, rather than a coworker or supervisor. A decision from the U.S. Court of Appeals for the Fifth Circuit illustrates employers’ obligations when the harasser is a patient. Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320 (5th Cir. 2019).
Fisher Phillips • November 04, 2019
When railroad crossing lights flash and whistles blare, everyone knows to stop, look, and listen. Those signals represent a warning, not a permanent roadblock to proceeding. The same is often true of workplace controversies. To an experienced eye, the lights and whistles can be just as obvious.
Jackson Lewis P.C. • September 04, 2019
Healthcare facilities in California have been required to adhere to mandatory nurse-to-patient ratios since 2004. These ratios vary depending upon the degree of patient care involved. More recently, Massachusetts passed a law requiring mandatory staffing minimums in the state’s ICU’s. Other states are considering jumping on the bandwagon. A California-like bill is currently pending in the Illinois General Assembly. Additionally, groups in Florida, Iowa, Minnesota, New Jersey, New York, Texas, and the District of Columbia are asking state lawmakers to consider similar measures.
Ogletree Deakins • August 29, 2019
Workplace vaccination programs are not new. While many focus on influenza, healthcare employers often impose more robust requirements to protect employees and vulnerable patient populations. The Centers for Disease Control and Prevention (CDC) recommends healthcare workers receive several vaccinations, including: hepatitis B; influenza; measles, mumps, and rubella (MMR); varicella (chickenpox); tetanus, diphtheria, and pertussis (Tdap); and meningococcal. Many states have enacted laws requiring such vaccinations for healthcare workers.
Fisher Phillips • August 04, 2019
When dealing with a difficult adversary, sage advice suggests that one should consider “killing them with kindness.” That advice does not work out well, however, when healthcare managers are too kind when addressing (or ignoring) employee performance shortcomings
Littler Mendelson, P.C. • July 11, 2019
Public discourse on “healthcare” has focused primarily on health insurance and the significant changes made by the Affordable Care Act. But what about the providers of healthcare—the doctors, nurses, hospitals, pharmaceutical and medical device companies, home care agencies—that make up the industry itself? As the healthcare landscape shifts, so do the risks and challenges healthcare industry employers face.
Fisher Phillips • May 01, 2019
In a matter of first impression, the Occupational Safety and Health Review Commission recently ruled that the Occupational Safety and Health Act’s general duty clause requires employers to protect employees from incidents of workplace violence. In Sec’y of Labor v. Integra Health Management, Inc., the Commission affirmed a citation issued to a social services provider after one of its employees was fatally stabbed by a mentally ill client.
Jackson Lewis P.C. • April 24, 2019
Aging is inevitable. As the general population trends older, so do the physicians providing care across the United States. While data differs depending on the source, somewhere between one in three and one in four practicing physicians are over the age of 65, with this percentage rising even higher in many specialties. With this aging comes concerns that the cognitive and/or physical dexterity skills of those physicians may deteriorate over time. The resulting potential injury to public safety cause many healthcare organizations to consider policies addressing the aging of their physicians. However, there are many issues that must be considered in order to have a late career medical practitioner policy that can withstand scrutiny by state and federal courts and agencies.
Ogletree Deakins • March 14, 2019
On February 27, 2019, the U.S. House Subcommittee on Workforce Protections held a hearing on House Resolution 1309, the Workplace Violence Prevention for Health Care and Social Service Workers Act, introduced by Representative Joe Courtney (D-CT). Courtney introduced a prior version of the bill in November 2018, House Resolution 7141, but it did not move forward. Nevertheless, this hearing indicates that the current bill might not suffer the same fate.
Jackson Lewis P.C. • March 06, 2019
On February 23, 2019, Modern Healthcare reported key takeaways from its “CEO Power Panel.” Of the 24 CEOs who completed the survey, only three (12.5 percent) responded that mergers and acquisitions “will be their primary growth strategy in 2019,” down from 25.8 percent of respondents in 2018. CEOs questioned whether organizations achieved any actual value in terms of cost savings or efficiencies when they merged, and cautioned against “getting big for big’s sake.”
Jackson Lewis P.C. • March 04, 2019
The Department of Justice recently reported that the healthcare industry accounted for $2.5 billion of the $2.8 billion dollars it recovered in False Claims Act (FCA) cases in Fiscal Year 2018. Qui tam actions (FCA claims brought by private individuals on behalf of the government) allow whistleblowers to receive up to 30 percent of the amount of recovered when a court finds a healthcare organization submitted false claims for payment. Additionally, individuals engaging in protected activity under the FCA may recover damages under the law’s anti-retaliation provision.
Fisher Phillips • February 05, 2019
When a Florida federal court recently rejected a hospital system’s attempt to keep its physician compensation data private, despite a claim that the information constituted a trade secret, healthcare employers across the country were sent a strong and clear message that pay data might not be as protected as you think it is. The decision might come as somewhat of a surprise, given the lengths to which many healthcare employers go to keep their employees’ compensation information out of the public eye. What specifically did the court say, and is there any chance that you could avoid the same fate and keep your pay data private?
Ogletree Deakins • February 04, 2019
The U.S. Department of Labor’s Bureau of Labor Statistics has forecast a nursing shortage through 2024, with the United States projected to need more than half a million new nurses to replace those who leave the profession. This nursing shortage stems from a convergence of factors. First, the healthcare arena has experienced an influx of new patients due to the Affordable Care Act and an aging population, increasing the demand for healthcare services. Second, many baby boomers have already reached or will soon reach retirement age. Finally, there are barriers to education for new nurses, including a lack of programs, faculty, and clinical sites to support training needs.
Jackson Lewis P.C. • January 29, 2019
Title IV of the Health Care Quality Improvement Act of 1986 (HCQIA), created the National Practitioner Data Bank (NPDB). The NPDB is a national clearinghouse and repository of information on medical malpractice payments and adverse actions taken against licensed healthcare providers. Hospitals and health systems with formal peer review are among the entities required to report to the NPDB.
FordHarrison LLP • December 12, 2018
Executive Summary. Class action attorneys recently filed a first-of-its-kind class action against Edison Home Health Care (“Edison”) and Preferred Home Care of New York (“Preferred”) alleging that the home care agencies used a “captive” insurance company to cheat their home care workers out of millions of Wage Parity Act (“WPA”) dollars. This is the first lawsuit targeting use of captive insurance companies to provide health benefits and was brought under ERISA, the federal statute governing employee benefit plans, as well as the WPA. The suit claims that the agencies used a captive insurer to avoid paying their Medicaid funded home care workers the full $4.09 WPA package of additional wages and benefits (“WPA Package”) and, instead, returned WPA-credited benefit dollars to the agencies and their owners. No prior lawsuit has targeted use of captive insurance companies in this way, and the progress of this lawsuit will be closely watched.
Jackson Lewis P.C. • December 09, 2018
What should (or can) you do if a locally recognized “Best Physician” throws a scalpel in the direction of a nurse during surgery? What are a CMO and CNO’s obligations to investigate when he/she learns there is a “situation” between a doctor and a nurse? How do you balance patient safety and compliance with anti-discrimination laws when the medical staff revokes an impaired physician’s privileges?
Jackson Lewis P.C. • November 25, 2018
In the wake of a recent uptick in workplace violence based lawsuits against home care and assisted living providers, lawmakers introduced a bill in the U.S. House of Representatives on November 16th that would require health care and social services providers to write and implement workplace violence prevention plans. If signed into law, H.R. 7141—the Workplace Violence Prevention in Health Care and Social Services Act—would compel OSHA to create and enforce workplace safety standards pertaining to workplace violence.
Jackson Lewis P.C. • October 30, 2018
October 2018 marks the 15th annual National Cyber Security Awareness Month. In honor of this occasion, the Office of the National Coordinator for Health Information Technology (ONC) and the HHS Office for Civil Rights (OCR) have jointly launched an updated HIPAA Security Risk Assessment (SRA) Tool to help covered entities and business associates comply with the HIPAA Security Rule. But remember, the HIPAA Security Rule does not require a “one-size-fits-all” approach to security.
Ogletree Deakins • August 29, 2018
On July 9, 2018, researchers at the Stanford University School of Medicine published a study in a peer-reviewed medical journal indicating that “[p]hysician burnout is at least equally responsible for medical errors as unsafe medical workplace conditions.” Significantly, the study claimed that over 50 percent of participating physicians reported symptoms of burnout, and over 30 percent reported excessive fatigue. According to the study, odds of self-reported medical error were, unsurprisingly, higher for physicians with burnout or fatigue.
Fisher Phillips • August 01, 2018
“Claims of sexual harassment typically involve the behavior of fellow employees. But not always.” So begins a recent opinion from the 5th Circuit Court of Appeals that illustrates the dangers of failing to take an employee’s complaints of harassment by a patient seriously. In its opinion, the court reminds employers of Title VII’s mandate that they take reasonable steps to protect employees once they know that the employees are subject to abusive behavior. An employer’s failure to do so could allow an employee’s claim to proceed to trial.
Jackson Lewis P.C. • July 10, 2018
Disruptive physicians are staple characters on television shows about the medical field. Some of the most recent T.V. doctors of this vein that come to mind are Dr. Gregory House of House and Dr. Perry Cox of Scrubs. While Dr. House and Dr. Cox present entertaining caricatures of disruptive physician behavior (“DPB”), in “real life” DPB has long presented many significant workplace challenges for health care institutions.
Fisher Phillips • May 01, 2018
It is hard to believe that it has been three years now since the federal Fair Labor Standards Act’s (FLSA) “companionship” exemption was strictly limited to direct-hire caregivers engaged in a narrower scope of activities, resulting in far more workers now being considered non-exempt. Not surprisingly, adapting to this limitation has not been easy, specifically for agencies who employ these home care workers and assign them to work in clients’ homes. In general, all employers struggle with applying the 1938 law to the 21st century. For employers of home companion workers, though, it can feel like trying to jam a square peg into a round hole.
Jackson Lewis P.C. • March 08, 2018
Rheumatologist Ephraim Engleman practiced medicine until he died at age 104 in 2015. Although Dr. Engleman’s story is atypical, as our colleagues who attended the American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute reported, and the Association of American Medicine Medical College’s November 2017 State Physician Workforce Data Report confirms, an increasing number of physicians are choosing to work past traditional retirement age. Today, nearly one-third of all physicians in the United States are over the age of 60.
Jackson Lewis P.C. • March 07, 2018
As #MeToo and #TimesUp initiatives sweep the nation, the healthcare industry should pay attention.
Jackson Lewis P.C. • February 23, 2018
The American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute in New Orleans focused on the legal challenges faced by physicians and hospitals. Here are the Jackson Lewis Healthcare Industry Team’s “Top 7” takeaways from the attorneys who attended the conference:
Fisher Phillips • February 01, 2018
A new Republican majority took hold over the National Labor Relations Board (NLRB) at the end of 2017, leading to several significant labor decisions. Because the NLRB’s decisions and actions impact all industries, healthcare employers should take note. While the new Trump-era Board certainly marks a welcome shift for businesses, including healthcare entities, it remains crucial that employers continue to evaluate internal policies and practices to ensure legal compliance with the changing landscape.
Ogletree Deakins • December 21, 2017
With the rise of apps and websites providing on-demand healthcare, there is little doubt that the use of independent contractors is a hot topic in the healthcare industry. The ability of skilled professionals to freelance is an issue vital to a healthcare industry that is expected to face a shortage of qualified providers over the next 20 years. Shortages have already led to the creation of services, such as Nomad Health, that connect freelance doctors (and, soon, nurses) looking for part-time opportunities to hospitals searching for part-time independent contractors.
Ogletree Deakins • August 25, 2017
Healthcare facilities are increasingly becoming targets of collective action lawsuits under the Fair Labor Standards Act (FLSA). Several recent lawsuits in Texas have challenged timekeeping practices related to meal breaks. For example, in a complaint filed against St. Luke’s Episcopal Health System in Houston, a former nurse alleged the hospital deprived her of overtime by automatically deducting 30 minutes for meal breaks.
Fisher Phillips • August 02, 2017
It is no secret to hospital and other healthcare employees that their workplace is no longer a guaranteed safe zone. In fact, recent statistics released by the Occupational Safety and Health Administration (OSHA) indicate that workplace violence is four times more prevalent in the healthcare and social services industries than in other private industries. Violence may come from many sources, including patients or those accompanying them, employees and those who have relationships with employees, and third parties with no business at the facility.
Fisher Phillips • July 27, 2017
The United States is expected to see a shortage of 40,000 to 104,000 physicians by 2030. Due to this anticipated need for primary care physicians, freelance work among the healthcare industry is becoming increasingly popular. For the longest time, temporary positions could only be obtained through brokers and agencies. But dealing with these middlemen proved to be more trouble than it was worth. For physicians, it was a lengthy and time-consuming process; for healthcare providers, it was a costly endeavor just to find interested workers.
Fisher Phillips • May 02, 2017
Employment law has always been on the cutting edge when it comes to emerging societal issues. Like little microcosms, the workplace reflects society as a whole. The healthcare industry is no exception.
Ogletree Deakins • March 29, 2017
On March 15, 2017, a federal judge in Hawaii issued a ruling that enjoined the Trump administration’s revised executive order intended to suspend admission of foreign nationals from six designated countries. On March 16, a second federal judge also blocked the 90-day ban on immigration for citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen. In response, President Trump vowed to continue pressing forward until his immigration order is successful.
Fisher Phillips • January 10, 2017
This summer I wrote about the dangers of English-only policies in this age of multiculturalism (for more, click here). These policies tend to emerge more frequently in the healthcare workplace, the reason being – the provision of quality care is the utmost goal and sometimes that requires everyone to speak the same language. But, what happens when it is the patient who is culturally diverse from the workforce? What must healthcare providers do in response? The Department of Health and Human Services has the answer: covered entities must provide language services to people whose primary language is not English in a more robust way than ever before.
Fisher Phillips • November 01, 2016
OSHA Turns Up The Heat On Healthcare Employers; Recent HIPAA Settlements Highlight Importance of Business Associate Agreements; Defense Strategy: Interactive Process Can Be Used To Defeat ADA Claims
Jackson Lewis P.C. • October 06, 2016
Skilled nursing facilities participating in the Medicare program and nursing facilities in the Medicaid program are prohibited from including a mandatory pre-dispute arbitration clause in their contracts with individuals seeking admission to long-term care (LTC) facilities under a final rule from the Centers for Medicare & Medicaid Services (CMS). This prohibition and other significant new or amended regulatory changes will go into effect on November 28, 2016, a mere 55 days after publication in the Federal Register.
Jackson Lewis P.C. • October 06, 2016
Skilled nursing facilities participating in the Medicare program and nursing facilities in the Medicaid program are prohibited from including a mandatory pre-dispute arbitration clause in their contracts with individuals seeking admission to long-term care (LTC) facilities under a final rule from the Centers for Medicare & Medicaid Services (CMS).
Jackson Lewis P.C. • April 11, 2016
A respiratory therapist can proceed with her civil rights claims because questions remain about whether her hospital employer intended to honor a patient’s request that he not be treated by black employees, a federal court has ruled. Caprice McCrary v. Oakwood Healthcare, Inc., C.A. No. 14-14053 (E.D. Mich. Mar. 16, 2016).
Jackson Lewis P.C. • February 23, 2016
A federal court in Ohio has dismissed Family and Medical Leave Act and disability discrimination claims filed by a nurse who was caught sleeping while on duty and fired. Lasher v. Medina Hosp., et al., C.A. No. 1:15CV00005 (N.D. Ohio Feb. 5, 2016). The court found the hospital had a legitimate, nondiscriminatory reason for terminating her employment, which she could not establish was pretextual, and that she failed to notify her employer that she needed FMLA leave for the time she was sleeping on duty.
Jackson Lewis P.C. • January 06, 2016
The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been notifying hospitals and medical providers by letter that their advertisements placed through the Centralized Application Service for Podiatric Residencies (“CASPR”) for podiatric residency positions may be in violation of specific provisions of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1324b.
Fisher Phillips • May 07, 2015
Hospitals, residential-care facilities, home-health agencies, and other employers in the healthcare industry often subcontract labor through outside vendors to fill positions like travel nurses, security guards, and janitors. Unfortunately, these outside contractors may not be in compliance with applicable federal and state employment laws, including wage-and-hour laws.
Fisher Phillips • May 07, 2015
A Wisconsin hospital scored an important victory in a recent failure-to-hire case involving an allegation of race discrimination. The underlying facts offer a timely reminder to all healthcare employers about what is necessary to reduce the likelihood of a similar claim being filed against the provider you work for, and how such a claim can successfully be defended if and when it arises.
Ogletree Deakins • February 03, 2015
On January 13, 2015, a hospital in West Palm Beach, Florida discovered that an unidentified juvenile had been walking its halls dressed as a physician, wearing a lab coat with the hospital’s logo and a stethoscope. According to the Sun Sentinel, a patient reportedly told the hospital’s OB/GYN offices that a young man who “looked like a child” had entered an examination room. Hospital staff immediately reported the patient’s concerns to the West Palm Beach Police Department, which investigated the incident. When questioned, the suspect told police that he had been a doctor for years. To make matters worse, the teen is believed to have been playing doctor for weeks before being detected. According to his mother, the teen was under the care of a doctor and suffered from an illness for which he refused to take prescribed medication.
Fisher Phillips • August 06, 2013
Government Agencies Taking Dim View of Employers' "Bright-Line" Policies; Don't Let Shift Differentials Lead To Costly Litigation August 1, 2013.
Fisher Phillips • January 16, 2013
A recent lawsuit filed by the U.S. Equal Employment Opportunity Commission ("EEOC") against a healthcare facility in Virginia highlights a legal liability to which nursing homes and other long-term care facilities are particularly vulnerable: harassment of employees by residents. The lawsuit in question was filed under Title VII of the Civil Rights Act and it alleged that a female receptionist was subjected to a "sexually hostile work environment" on the basis of harassment by a resident. The lawsuit further alleged that the employee made numerous complaints to her supervisor about the harassment yet the employer failed to take proper corrective action.
Fisher Phillips • August 08, 2012
For years, hospitals and most other healthcare providers have regularly screened new and existing employees for tuberculosis as part of their required infection-control programs. However, the U.S. Equal Employment Opportunity Commission's (EEOC) recent challenge of an employer's TB screening practices may change the way healthcare employers approach this fundamental and long-practiced precaution.
Fisher Phillips • February 10, 2012
Lots of folks may dream of a white Christmas, but healthcare employers often struggle with handling weather-related disruptions, such as snow days in the workplace. Even in a hospital, some departments or free-standing satellite facilities must deal with such events. Healthcare employers should therefore implement policies addressing inclement weather, including how employees can find out how a facility's schedule may be changed and what they should do if the facility is open, but they are unable to make it to work due to the weather.
Fisher Phillips • November 08, 2011
With the year drawing to a close, this is a good time to examine four significant trends in employment law and consider how to safeguard your healthcare organization from threats associated with them. While this list is not exhaustive, it represents an excellent starting point for ensuring a solid foundation from which to manage risks during the coming year.
Fisher Phillips • May 06, 2011
If attracting, developing and retaining a high-performance workforce is not challenging enough, recent developments have opened the door to emerging new legal hazards for healthcare employers. Whether arising from legislative action, a court ruling or administrative decision, these issues merit serious attention.
Ogletree Deakins • November 10, 2010
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has won another major battle in its war to establish jurisdiction over hospitals and other health care providers. On October 18, an administrative law judge (ALJ) decided, without a hearing, that the Florida Hospital of Orlando (FHO) is subject to federal affirmative action laws by virtue of its agreement to provide health care services to eligible TRICARE beneficiaries. OFCCP v. Fla. Hosp. of Orlando, DOL OALJ No. 2009-OFC-00002 (October, 18, 2010).
Ogletree Deakins • September 11, 2009
While many U.S. unions appear to be waiting on the outcome of the Employee Free Choice Act debate to ramp up their organizing activities that has certainly not been the case for those unions targeting health care workers. Rather, those unions have for some time been engaged in often intense levels of national organizing, albeit typically in a non-coordinated (and, at times competitive) fashion. A few recent developments suggest more coordination and cooperation by the major unions involved.
Fisher Phillips • August 11, 2009
For many of us, the perils of a lunch break include braving the weekend's leftovers, testing the over-used and under-cleaned breakroom microwave, or searching the community refrigerator for your poorly-labeled brown-bag lunch. But as recent lawsuits filed against several Pennsylvania hospitals demonstrate, meal breaks can prove far more stomach-churning than three-day old leftovers.
Ogletree Deakins • July 29, 2008
In 2006, a federal district court allowed to stand a verdict for $22.5 million in favor of a cardiologist who sued a hospital and a department chairman after a five-month suspension of his cardiac catheterization lab (cath lab) and echocardiography privileges. See Poliner: A Texas-Sized Credentialing Verdict for Physicians, at (http://www.medlawblog.com/archives/-credentialing-poliner-a-texassized-credentialing-verdict-for-physicians.html). In a highly-anticipated decision, the 5th U.S. Circuit Court of Appeals has overruled that verdict, holding that the hospital and individuals involved in the peer review process are protected from money damages by the Health Care Quality Improvement Act (HCQIA).
Fisher Phillips • July 14, 2008
Recognizing that intimidating and disruptive behavior can compromise the delivery of quality healthcare, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) on July 9, 2008, issued a Sentinel Event Alert focusing upon its new requirements to address such behavior. The Sentinel Event Alert suggests what healthcare organizations must do to address all kinds of harassing and disruptive behavior, not just conduct made illegal under workplace discrimination and harassment laws.
Fisher Phillips • May 06, 2008
Many healthcare employers adopt shift differentials to encourage staffing on unpopular shifts. For example, employers may reward employees who work unpopular shifts or perform unpopular tasks with extra pay in order to maintain adequate staffing levels and provide round-the-clock patient care. Employers are encouraged to devise creative, lawful solutions to staff all shifts and ensure all tasks attendant to patient care are performed.