Generally speaking, most healthcare employers would not think that their employed physicians are at risk for unionization. As opposed to interns and residents, who have experienced their own unionization push in the past several years, employed or “staff” physicians supervise nurses and other medical providers and direct the day-to-day operations of healthcare services.  They are regarded as “management” and part of leadership within most hospitals. Thus, many hospital administrators naturally assume that physicians are seen as “supervisors” under the law, and like other supervisors, would be barred from seeking to organize or join a union under the National Labor Relations Act. Doctors certainly should not be allowed to seek union representation, like their nurse colleagues, since the positions are fundamentally different. Simple, right?

Maybe not. One NLRB Regional Director recently reinforced the argument that physicians, and other highly-credentialed medical providers, are not supervisors simply by virtue of their position near the top of healthcare institution chain of command – and can in fact seek to organize. They could also be part of the same unit with other staff.  On January 21, 2022, in Piedmont Health Services, Inc. and Piedmont Health Services Medical Providers United, Case 10-RC-286648, the NLRB directed an election of a proposed bargaining unit consisting of physicians, nurse practitioners, certified nurse-midwives, and physician assistants. Supervisors are of course excluded from the proposed unit, but, as will be explained below, the NLRB in this case draws a clear line between what constitutes a supervisor when it comes to medical providers, and what does not.

Continue Reading Are Your Doctors Poised for an Organizing Push? A Recent NLRB Decision May Provide Some Incentive

Judge Thomas Rademaker, a New York State Supreme Court Judge in Nassau County, yesterday issued an order striking down the statewide mask mandate issued by the Department of Health in December, which requires that all state residents over the age of two wear face masks in all public places, including within all schools. Judge Rademaker found that the DOH had exceeded its authority with the order, which he equated to a “law.”

Governor Kathy Hochul reacted swiftly, publicly disagreeing with the ruling and appealing the decision. An appeals court judge granted a motion to temporarily block the earlier ruling by Judge Rademaker, putting the mandate back into effect only hours later.

As the pandemic continues, it seems the judiciary is again on a collision course with the executive branch, as the government attempts to stymie the spread of the virus.

The decision did not, on its face, criticize masks or mask rules, but invalidated the DOH order on more technical grounds. In fact, the judge took pains to state that the court was not against masks, and “prays that the era of COVID ends soon[.]”

Continue Reading Governor Hochul Unmasked: New York Judge Strikes Down State Mask Mandate

New York State lawmakers have done it again – amending an often-forgotten whistleblower statute of limited application into a sweeping new source of employee rights that should make employers listen up and take notice.  Almost two years ago it was Section 741 of the New York Labor Law, focused on healthcare workers. This time, it’s Section 740, which applies to all private-sector employers. Below, we provide you with a run-down of the changes and how employers can prepare for the January 26, 2022 implementation date.

BACKGROUND

Although it has been around for decades, Section 740 is not the first law that comes to mind when an employer thinks of the various laws protecting its employees. That’s because the statute’s restrictions diminish its usefulness as a tool for employees seeking relief for an alleged retaliatory act. For example, the statute is narrow – it only applies when an employee discloses, or threatens to disclose, to the employee’s supervisor or a public body, an actual violation of law, rule or regulation that presents “substantial and specific” danger to public health or safety, or healthcare fraud. Even then, it only has a one-year statute of limitations and there is no right to a jury trial. And on top of that, even if an employee prevails, their remedies are limited to reinstatement, back pay, and attorneys’ fees, but not compensatory or punitive damages. Taken together, employees had little incentive to bring claims under Section 740. Continue Reading I Hear That Whistle Blowing: New York’s Expanded Whistleblower Law Raises Volume On Employers

Last week, the Supreme Court issued two opinions on COVID regulations impacting employers and workers across the country.

  • In the first, the Court stayed OSHA’s “vaccine or test” mandate for employers with 100 or more employees, finding that OSHA had overstepped its authority in promulgating the rule.
  • In the second, the Court allowed a rule implemented by the Centers for Medicare and Medicaid Services (“CMS”), requiring healthcare facilities to ensure vaccination of their entire workforces, with no testing alternative.

The seemingly contradictory opinions have set the world of legal commentary aflame, but more importantly, have left employers asking: what do we do now?

Here’s our brief guide.

Blocking OSHA

On September 9, 2021, President Biden announced his plan to increase vaccination rates among Americans. Two months later, on November 5, OSHA issued its emergency temporary standard (“ETS”), mandating workforce vaccination for all employers with 100 or more employees across the country. In lieu of vaccination, an employee might submit to masking and testing, at their own expense. By OSHA’s estimate, 84.2 million employees, or roughly half the U.S. workforce, would be subject to its mandate. Across the country, legal challenges to the ETS were filed almost simultaneously with the rule.

Continue Reading Supreme Court Splits on Vaccine Mandates

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).

Continue Reading UPDATE ON COVID CONSIDERATIONS: Long COVID Now an ADA Disability

In a one-line ruling on Monday, December 13, 2021, the U.S. Supreme Court dismissed the last of the legal challenges to the vaccine mandate for health care workers in New York. It also dismissed a challenge to a similar mandate for New York City Education Department employees, denied challenges to similar mandates for employees at Massachusetts General Hospital, and a challenge against a Maine mandate.

The New York plaintiffs, two groups of health care employees, sought an injunction against the mandate after the Second Circuit found it lawful. These Suits were brought in two courts, the Eastern and Northern Districts in New York, and ultimately were consolidated into one challenge. The argument was, by excluding religious exemptions, the New York mandate infringed on religious freedom. These New York plaintiffs claim that the vaccines offend certain religions, because they used fetal cell lines during testing. This theory has now been rejected by several courts.

This signals a trend by the high court, which is to honor mandates issued by individual state governments. This decision also clears the way for New York health care providers to confidently enforce the vaccine mandate, knowing that it has now been backed by the courts.

Continue Reading The Latest on Vaccines and Other COVID News

Where the Mandate Stands and Current Considerations for Contractors and Subcontractors

The federal contractor vaccine rollout continues to present thorny issues for federal contractors.  President Biden issued Executive Order (“E.O.”) 14042 in early September 2021, requiring federal contractor employees to get vaccinated against COVID-19.  The E.O. was followed by guidance issued by the Safer Federal Workforce Task Force (“Task Force”) in late September 2021, which has been frequently updated in the months since.

As described more fully in our prior post, under the mandate, implemented through the Task Force guidance incorporated into clauses issued by federal agencies, vaccines are mandatory for federal contractor employees working on covered contracts, those who perform duties in connection with a covered contract, and those working at the same workplace as covered employees. Contractors must also comply with masking and physical distancing requirements.  The mandate applies to subcontractors at any tier, and applies to contractors of all sizes — small, medium or large.  The E.O. and Task Force guidance immediately gave rise to many compliance questions and concerns over impact on contract or subcontract performance.  Legal challenges to the contractor vaccine requirement and actions by numerous states have further complicated an already difficult compliance landscape.

Continue Reading Uncertainty with the Federal Contractor Vaccine Mandate

Days after New York City announced its first positive case of the Omicron variant, Mayor Bill DeBlasio announced a sweeping upcoming vaccine mandate for virtually all private employers in the City. According to DeBlasio, this “preemptive strike,” set to go into effect on December 27, represents the City’s effort to get out ahead of the double threat posed by the new, highly contagious variant, and the potential increased transmission brought on by holiday travel and gatherings. However, City Hall’s hurried response has left City businesses reeling as they try to quickly adapt to unclear requirements.

What we know

First, DeBlasio announced the latest expansion to the “Key to NYC” program, which has already notably required proof of vaccination for anyone entering indoor bars and restaurants, fitness facilities, and entertainment and performance venues. Starting on December 14, children aged 5-11 will be required to show proof of at least one vaccine dose to enter those businesses. On December 27, New Yorkers aged 12 and older will be required to show proof of two vaccine doses (excepting the Johnson & Johnson vaccine, which only requires one).

More impactful is the unprecedented vaccine mandate for private-sector workers. The City will publish guidance on December 15, but for now, businesses are scrambling to anticipate their obligations before the mandate takes effect on December 27.

Continue Reading DeBlasio’s Parthian Shots: What Businesses Need to Know

To address growing cybersecurity risks to plan participants and their retirement assets, the Department of Labor (DOL) issued a set of guidance for retirement plan sponsors and fiduciaries, their service providers, and plan participants aimed at mitigating cybersecurity risks. The DOL has also begun examining plans’ cybersecurity programs. Its information requests, which are very detailed and encompassing, signal that the guidelines are not optional and that the DOL is serious about enforcing them. The below is a summary of the DOL’s guidance and items it has signaled will be reviewed in a cybersecurity audit.

DOL Guidance
The DOL released its guidance on April 14, 2021 in three pieces. The first piece, “Tips for Hiring a Service Provider,” is aimed at assisting plan sponsors and fiduciaries in choosing service providers with robust cybersecurity practices. The initial guidance makes clear that the DOL considers the management of cybersecurity risk – including the scrutinizing of service providers’ cybersecurity policies and practices – to be part of a fiduciary’s duties. The tips include:

  • Making sure that contracts with service providers require their ongoing compliance with cybersecurity and information security standards, and being wary of provisions that limit the service provider’s responsibility for IT security breaches;
  • Looking for contract provisions that give plan sponsors and fiduciaries the right to review the service provider’s audit results demonstrating compliance with industry security standards;
  • Examining the service provider’s track record in the industry, including public information regarding information security incidents;
  • Inquiring as to any past security breaches, how they came about, and how the service provider responded; and
  • Finding out whether the service provider has any insurance policies that would cover losses caused by cybersecurity and identity theft breaches, whether internal or external. Continue Reading DOL Issues Cybersecurity Guidelines and Begins Audits

This Advisory provides a summary of recent developments impacting Affordable Care Act (“ACA”) requirements applicable to employers, as well as other recent changes impacting employer-sponsored health plans.

ACA Affordability Threshold Decrease

Employer-sponsored health plans will satisfy the ACA affordability requirement in 2022 only if the lowest-cost, self-only coverage option offered under the plan does not exceed 9.61% of an employee’s household income, down from 9.83% in 2021.  This means that a plan that was affordable in 2021 may not be in 2022, even without any increase in premiums.  Employers should confirm that their health plans will remain affordable for the 2022 plan year under the new lower threshold.

Advanced Explanation of Benefits (EOBs)

Effective for plan years beginning on or after January 1, 2022, plans and insurers, within one business day after receiving a provider’s good faith estimate of the expected charge to the plan or insurer for an item or service (as required under the No Surprises Act), must provide participants and beneficiaries with a notice containing various pieces of information, including the following:

  • For in-network providers or facilities, the plan’s contracted rate for the item or service, based on the billing and diagnostic codes furnished by the provider or facility;
  • For out-of-network providers or facilities, a description of how the participant or beneficiary can obtain information about the plan’s in-network providers or facilities (if any); and
  • A good faith estimate of the amount of cost-sharing for which the participant or beneficiary would be responsible concerning the item or service.

The Departments of Labor, Health and Human Services, and the Treasury (the “Departments”) have announced that they will not issue regulations addressing these advanced EOB requirements before the effective date of January 1, 2022 and will defer enforcement until they have done so.  However, plans should prepare to meet these requirements as soon as possible, as doing so may require substantial effort, including the engagement of third-party administrators (TPAs) to provide disclosures.

Continue Reading New Health Plan Requirements and Other Updates