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Total Articles: 38

5 Takeaways on Managing Challenging Physician Employment Situations

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?

Developing Best Practices for Addressing Workplace Violence in the Homecare and Assisted Living Settings

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.

Is your e-PHI Secure? ONC and OCR Update HIPAA Security Risk Assessment Tool

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.

Share Healthcare and Health and Safety Risks: What Employers Can Do About Increased Rates of Physician Burnout and Fatigue

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.

Healthcare Update (No. 3, August 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.

Is Your Institution Doing Enough to Reduce Disruptive Physician Behavior?

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.

Healthcare Update (No. 2, May 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.

Navigating the Waters of Late Age Physician Testing

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.

#TimesUp for the Healthcare Industry? Not If You Use the Frenzy to Make Meaningful Culture Change

As #MeToo and #TimesUp initiatives sweep the nation, the healthcare industry should pay attention.

Top 7 Legal Challenges Facing Physicians and Hospitals

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:

Healthcare Update (No. 1, February 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.

Technology and Trends in the Healthcare Industry, Part II: Answers on Independent Contractor Status for Healthcare Employers

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.

Plaintiffs’ Bar Targets Healthcare Facilities’ Timekeeping Practices

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.

Healthcare Update (No. 3, August 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.

The Gig Economy Expands to the Healthcare Industry

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.

Healthcare Update (No. 2, May 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.

Is there a Doctor in the House? How the Travel Ban Could Impact the Healthcare Industry

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.

Healthcare Provider Obligations For Individuals With Limited English Proficiency

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.

Healthcare Update (No. 4, November 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

Long-Term Care Facilities: New Rule Imposes Significant Changes, including Bar on Pre-Dispute Arbitration Agreements

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.

Long-Term Care Facilities: New Rule Imposes Significant Changes, including Bar on Pre-Dispute Arbitration Agreements

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).

Respiratory Therapist May Proceed with Civil Rights Claims Based on Patient’s Request That He Not Be Treated by Black Employees

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).

Court Finds No FMLA Violation, Disability Discrimination Where Hospital Terminates Nurse with Migraine Who Slept While On Duty

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.

Hospitals, Medical Providers Come under Scrutiny for Potentially Discriminatory Ads

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.

Healthcare Industry: Ignorance Is Not Bliss In The Joint-Employment Context

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.

Healthcare Industry: Was This Doctor A "Good Fit"?

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.

Teen Posing as Physician Raises Security Concerns for Healthcare Employers

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.

Healthcare Update (August 2013)

Government Agencies Taking Dim View of Employers' "Bright-Line" Policies; Don't Let Shift Differentials Lead To Costly Litigation August 1, 2013.

Healthcare Industry: Avoiding Harassment by Residents

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.

EEOC Challenges TB Testing Practices

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.

Who's Afraid Of A Little Snow?

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.

A Look Ahead: Four Trends Healthcare Employers Should Continue to Watch

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.

Health Care Providers Should Get Prepared: ALJ Finds Participation in TRICARE Subjects Florida Hospital to OFCCP Jurisdiction

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).

Merger and Cooperation: The Future for Health Care Unions?

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.

Meal Time May Prove Stomach-Churning For Hospitals.

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.

The HCQIA Immunizes Participants From Money Damages In An Objectively Conducted Peer Review Action (5th Cir.).

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 ( 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).

Joint Commission Alert Targets Intimidating/Disruptive Behavior: Aims to Stamp Out the "Equal Opportunity Harasser".

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.

Healthcare Update: hShort-Shift Differential Shortchanges Employees, Court Rules.

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.
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