Labor & Employment Health

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Half a Loaf: Court Rejects ADA "Safe Harbor" But Approves Pre-Regulations Wellness Program as "Voluntary"

The EEOC’s attack on employee wellness programs as unlawful under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) that began in 2014 with three lawsuits, and continued with...more

Wisconsin Court Rejects Employer’s Argument That Wellness Programs Are Insulated from Disability Law

Trial to Be Scheduled on Retaliation Claim - MILWAUKEE - A federal court has ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a disability discrimination case involving wellness programs filed...more

Just What The Doctor Ordered: Court Denies The EEOC’s Motion For Summary Judgment In ADA Suit Regarding Employer’s Wellness...

Seyfarth Synopsis: After the EEOC brought an action under the Americans With Disabilities Act against an employer who implemented a wellness program requiring employees to take a health assessment to participate, the Court...more

Addressing Zika’s Continued Threat to the Workplace

The growing prevalence of the Zika virus in the United States has already presented a number of hurdles for employers striving to create a safe and healthy workplace environment for their employees. These concerns are more...more

ACA Reporting on Forms 1094-C and 1095-C, AIRTN500 Error Messages, and Incorrect and Missing Taxpayer Identification Numbers...

Employer-sponsored group health plans and health insurance issuers (or carriers) are subject to information reporting requirements under the Affordable Care Act (ACA), including the obligation to report taxpayer...more

Public Policy Alert from the South Carolina State House - Budget Outlook and Impact of South Carolina’s Changing Demographics

The House Ways and Means Committee met on Monday, September 19th, to hear testimony regarding an outlook on future revenues as well as South Carolina’s changing demographics. Dr. Lee Pearson, Associate Dean with the Arnold...more

South Carolina Court Decides Key Health Care Case - Physical therapists win in employment lawsuit

The South Carolina Supreme Court has decided a case with great significance in the health care industry. The court overturned a ban on physicians employing physical therapists and gave guidance regarding how state agencies...more

Workplace Violence in the Health Care Setting – Is Your Organization Prepared?

Workplace violence is more common than you may think – is your health care facility prepared? Recently, The Occupational Safety and Health Administration (OSHA) updated guidelines for workplace violence as it relates...more

A Deeper Dive: Employers Receiving Federal Funding May Be Subject to ACA’s Nondiscrimination Rule and Need to Cover Transgender Benefits

In recent months, we have written a fair amount about providing transgender benefits in light of the nondiscrimination provisions of the Affordable Care Act. Our blogs of March 30, 2016 and June 22, 2016 highlight the key contours of the nondiscrimination rule. In our June 22 post, we mention in passing that the final nondiscrimination rule applies to any health program or activity, any part of which receives funding from the Department of Health and Human Services (“HHS”).more

Employment Law This Week®: ACA Marketplace Notices, Payroll Card Regulations, Medical Marijuana, Uber’s Arbitration Agreements

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! This week’s stories include ... (1) ACA Marketplace Notices Sent to Employers Our top story: A health care tax credit for employees can lead to penalties for employers. The federal Health Insurance Marketplace is notifying employers when their employees obtain Marketplace coverage and qualify for subsidies to help lower their premiums or deductibles. This situation can happen if the employer offers health insurance coverage that is inadequate under the Affordable Care Act (ACA), or if the business doesn’t offer coverage at all. Employers must either pay a penalty or file an appeal on the matter. Chris McMican, from Epstein Becker Green, has more. “When they receive a notice like this, the employer should determine if the notice is accurate and whether or not it should be appealed. So, for example, if the employer believes that the individual was not its employee or if maybe the employee was provided with the required health insurance coverage offering at the right price, then this might provide grounds for an appeal for the employer. . . . In that appeal, there’s a specific form to follow, and the employer should be aware that this is an appeal to the Marketplace, not necessarily the IRS, which is a later step if the tax is going to be formally assessed.” (2) New Regulations on Payroll Cards in New York New York State is cracking down on payroll cards. The Empire State recently rolled out new regulations on payroll cards, which are used by an estimated 200,000 workers in the state and often carry hidden fees and penalties. The new regulations limit the fees associated with the cards and require employers to provide workers with a written notice explaining their rights. Employers must also list the locations of fee-free ATMs near where employees work or live. Employers cannot pass along the cost of the cards to workers or receive kickbacks from the use of the cards. (3) Ohio’s Medical Marijuana Law Goes Into Effect This month, Ohio became the 26th state (plus the District of Columbia) to legalize marijuana in some capacity. The law addresses many employment issues head-on, stating that employers are not required to permit the possession of medical marijuana in the workplace or accommodate the use of marijuana. The law also makes clear that an employer can terminate or choose not to hire someone based on medical marijuana use. Employers in the state will want to be aware of the law, but the law shouldn’t require any major policy adjustments. (4) Ninth Circuit Reinstates Uber’s Arbitration Agreements The U.S. Court of Appeals for the Ninth Circuit finds that Private Attorneys General Act (PAGA) waivers can be severed from agreements. Arbitration agreements between Uber and its employees are enforceable once again, after the Ninth Circuit largely overturned a district court’s ruling. The lower court held that the agreements were void based on public policy because they contained a PAGA waiver. On appeal, the Ninth Circuit found that the PAGA waivers could be severed from the agreements and that the rest of the agreements were still enforceable. (5) Tip of the Week Will Hansen, Senior Vice President of Retirement Policy for The ERISA Industry Committee (ERIC), is here with some advice on preparing a benefits program in advance of the U.S. Department of Labor’s overtime rule. “The Department of Labor’s final rule increasing the overtime exemption threshold to $47,476 will not only have an impact on the wages an employee receives, but also the benefits that they receive. In advance of these changes taking effect on December 1, it’s important for companies to review their benefit programs. First, they should determine whether there will be any increase or decrease in the overtime wages provided, as well as an increase or decrease in salaried over hourly employees. Next, they should examine the financial impact any change in their workforce will have on the company. . . . Lastly, the company should look at other benefits, such as paid sick leave or commuter transit benefits to see if there will be a change in participation which would have an impact on costs.” Click here, for more on ERIC: http://bit.ly/2ccCXMH more

Considerations for Healthcare Industry Employers as They Continue to Prepare for New Salary Thresholds Under White-Collar Overtime Exemptions

Employers in the U.S. healthcare industry should act now to address recent changes to the overtime exemptions for “white-collar” employees. On May 18, 2016, the U.S. Department of Labor (DOL) published its highly anticipated final rule, which more than doubles the salary threshold required for certain executive, administrative, and professional employees to qualify for an exemption from overtime pay under the Fair Labor Standards Act (FLSA).more

Employers Could Face Scrutiny, Including From U.S. Immigration And Customs Enforcement, If They Cannot Produce Valid Social Security Numbers On 1095-C Health Insurance Forms For ACA

In 2016, employers subject to the Affordable Care Act’s (ACA) annual information reporting requirements under Code Sections 6055 and 6056 were required, for the first time, to distribute Form 1095-C reports to their full-time employees and file those same reports with the Internal Revenue Service (IRS). Form 1095-Cs were due to affected employees by March 31, 2016 and were due to be filed with the IRS by May 31, 2016 (if filed by paper) or June 30, 2016 (if filed electronically). more

Top Ten Things To Know About Florida's Amendment 2

The Basics: Amendment 2 is a voter-initiated constitutional amendment legalizing medical marijuana possession and use. Amendment 2 establishes a caregiver-patient system for medical marijuana distribution. Caregivers must be 21 years of age, agree to assist with a patient’s medical marijuana use, and receive a caregiver identification card by the Florida Department of Health (DOH). The measure establishes Medical Marijuana Treatment Centers (MMTC) that have the authority to acquire, cultivate, process, transport, and sell all marijuana products. The measure does not cap how many caregivers a patient may have or how many patients a caregiver may have. The measure does not cap or limit how much medical marijuana a patient may possess or purchase, nor does it regulate the number of MMTCs allowed to operate. There is no age limit on possession or use of medical marijuana under Amendment 2. Minors may use it with parental consent. Please see full Alert below for more information.more

Is Your Health Care Facility Prepared for an Active Shooter?

How prepared is your health care facility for the unimaginable? No one wants to think an active shooter situation could occur on their hospital campus or in their medical facility. But, the more prepared you are, the better your outcomes can be in such extreme circumstances. Health care facilities have unique challenges when it comes to emergency situations, explains Emily H. Wein, attorney with Ober|Kaler. “Because health care facilities serve a variety of populations and sometimes, one or more of the services delivered by a provider can be seen as controversial, these facilities can be potential targets for someone trying to instill fear and create turmoil.” What is an active shooter? The FBI definition of an active shooter is: “Somebody actively engaged in killing or attempting to kill people in a confined and populated area.” Did you know? • 98% of active shooters act alone • 90% end their own life at the scene • Most do not take hostages • Most don’t have an exit strategy Zachary Wein, Baltimore City police officer explains, “The shooter is looking to create chaos in the most populated areas of the hospital or health care facility. Police intervention is the most effective way to end an active shooter situation. Response time is crucial – every minute of an active shooter situation can mean eight victims.” Plan for an Active Shooter Situation in Your Health care Facility – Top 3 Steps 1. Create emergency policies and plans specific to an active shooter in your facility. Involve security personnel, clinical and administrative leaders and other key decision makers in the development of a plan and policies for an active shooter situation. This may include creating an internal code to alert all staff of the situation. Have a way to communicate the code to staff without tipping off the shooter or creating panic. Communication of the policies and codes is critical. Everyone must know how to prepare for an active shooting situation and the steps to take to ensure everyone’s safety. 2. Establish an internal security team. Designate an on-site leader and back-up leader to take charge. It’s also important to have a predetermined liaison to work with police officers who knows the emergency plan, as well as the ins and outs of the facility to help guide officers so they can take immediate action. 3. Training your people is key to active shooter planning and response. • Conduct regular drills to help employees understand codes, policies and plans for an emergency situation. • Develop and communicate plans for evacuation and lockdown procedures. Regular emergency drills help your facility’s lead security team as well as all staff know what to do in an active shooter situation. It’s also a good idea to train staff on characteristics of an armed shooter and what to do if someone or something seems suspicious. Responding to an Active Shooter Situation What is the best way to respond? Following are lifesaving tips to share with employees: 1. Run. This is the most important response to remember and communicate to your team. 2. Hide. Create distance between you and the shooter. Encourage your team to get to a safe location and bring others, such as patients or co-workers, only if possible. Seek shelter in a room that locks. Many patient rooms do not have locks on the doors, but interior bathrooms do lock; individuals should turn off lights, silence cell phones and stay out of sight. 3. Fight. This is not the best option, but it may be the only one available in a difficult situation. The First Responder’s Role in an Active Shooter Situation 1. Find and stop the shooter. 2. Secure the area. 3. Assist the injured. “A police officer’s first priority is to get inside the facility and stop the shooter. It’s important for staff to understand that law enforcement may not be able to immediately help the injured. Their first priority is to stop the shooter,” adds Zachary Wein. Providing officers accurate information is critical. Law enforcement on the scene need to know: • Shooter’s location • Number of shooters • Description of shooter (physical appearance, clothing, etc.) • Type of weapon shooter is carrying 4 Important Steps to Take in the Aftermath of a Shooting 1. Have a mass casualty plan in place. The more triage areas the better. 2. Have plans with other hospitals to care for the wounded, if necessary. 3. Follow detailed notification procedures. Designate a communications professional and have a plan and script ready for notifying the outside world. 4. Have counseling resources in place for your people who have experienced the physical and mental trauma of an active shooting situation. The time to get your health care facility prepared for an active shooter is before it happens. If you have questions about establishing an emergency response or active shooter plan for your health care facility, contact: Emily H. Wein Principal, Ober|Kaler's Healmore

Hope for Employers: Court Says Home Health Aides Can’t Bring Collective Action

Courts have been quick to allow one employee claiming to be due overtime to sue on behalf of others in the same job category by certifying a collective action, allowing that employee to represent the class and requiring the employer to provide contact information for others in the same job category. more

Health Alert (Australia) September 12, 2016

In This Issue: - Judgments; Legislation; and Reports. - Excerpts from Judgments: Queensland - 2 September 2016 - Inquest into the death of Michael James Calder Mr Calder was aged 33 when he was referred by his GP to the Holy Spirit Northside Private Hospital (HSNPH). He had been suffering from headaches, as well as neck pain and stiffness. The GP referral letter noted he had similar symptoms four years previously when he was diagnosed with viral meningitis. Mr Calder underwent a number of tests whilst in the HSNPH Emergency Department. He was then admitted to the ward, where he received analgesia including subcutaneous morphine, liquid morphine (Ordine), slow release morphine (MS Contin), Gabapentin along with paracetamol and ibuprofen. On 11 July 2014, Mr Calder was found unresponsive and in cardiac arrest. He was pronounced deceased shortly after. This inquest was to determine whether the level of opiate medication that was being provided to Mr Calder was a contributing factor to his death. The inquest revealed that Mr Calder had a history of obstructive sleep apnoea which was unknown to those treating him at HSNPH. The Coroner concluded that this, along with the accumulation of the medications peaking at the same time, resulted in an episode of aspiration and respiratory depression to which Mr Calder succumbed. A retrospective review of the medical records indicated that, despite regular checks, nursing staff did not pick up on the evidence of his respiratory function prior to finding him unresponsive. The Coroner was satisfied that the HSNPH has since implemented changes which adequately address the issues raised while reviewing the circumstances of Mr Calder's death. Please see full Alert below for more information. more

Employee Benefits and the New Overtime Rules

The Department of Labor’s new overtime rules take effect December 1, 2016, and employers across the country are carefully reviewing and modifying their compensation and payroll practices in anticipation. As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans. This post examines some of the employee benefits issues that employers should be considering as the December 1 deadline approaches.more

Montrose Hospital Sued by EEOC for Widespread Age Discrimination

Workers Who Dedicated Years to the Hospital Were Fired or Forced to Quit Because of Their Ages, Federal Agency Charges - DENVER - Montrose Memorial Hospital, a hospital in Montrose, western Colorado, violated federal law by firing employees or forcing them to resign because of their age, the U.S. Equal Employ­ment Opportunity Commission (EEOC) charged in a lawsuit filed today. more

Compensation and Benefits Insights – September 2016

New Guidance Affects Wellness Program Design - Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) and the Internal Revenue Service (“IRS”) have provided additional guidance regarding the administration of wellness programs. The recent EEOC guidance builds upon guidance previously issued by the EEOC and the Departments of the Treasury, Labor and Health and Human Services placing limitations on the value of certain incentives offered by wellness programs. The recent IRS guidance clarifies that certain wellness program benefits may constitute taxable income. In light of this new guidance, employers offering wellness programs should carefully review their wellness program design for compliance. more

When Patient Care Needs and Employee FMLA Demands Conflict

A healthcare employer’s primary mission is to provide appropriate medical care and treatment to patients. In order to provide such care, healthcare companies rely on the steady and committed presence of competent, licensed professionals who are ready, willing, and able to perform the tasks necessary to make sure patients’ needs are met. Healthcare employers may experience significant challenges when trying to balance the needs of patients with the needs and rights of employees to have time off work for family or medical needs under the Family and Medical Leave Act (FMLA) or other similar state leave laws.more

President Trump? President Clinton? A Workplace Law Preview

Either Republican Donald Trump or Democrat Hillary Clinton will almost certainly be inaugurated as our nation’s 45th president on January 20, 2017. In the four years (or more) that follow, one of these two candidates will be in charge of the executive branch, will have an opportunity to select judges to serve in the federal courts, and could wield significant influence over Congress.more

Court Tosses Flu Shot Lawsuit - Employee’s Religious Discrimination Claim Falls Flat

In our last edition of the Healthcare Update, we reported that the Equal Employment Opportunity Commission (EEOC) had filed a June 2016 lawsuit against that Baystate Medical Center in Massachusetts, claiming that the employer did not reasonably accommodate the sincerely held religious beliefs of an employee who refused to take a flu shot.more

[Webinar] Hot Topics in Welfare Benefits - September 20th, 12:00pm CST

Ever since the passage of health care reform, the applicable government agencies (IRS, DOL, EEOC and HHS) have been actively working to provide new and updated regulations and other guidance governing various aspects of health benefit plans. This is particularly true for 2016. In this webinar we hope to highlight aspects of new agency guidance that employers should be considering as they head into 2017. As well, we will address cutting edge plan drafting and best practices that employers may want to consider incorporating into their plans as the litigation stakes rise. Finally we intend to cover lessons learned from ACA reporting and disclosure in 2016 as well as other 2016 events.more

Workplace Policy Institute Insider Report — September 2016

The September edition of Littler's Workplace Policy Institute Insider Report examines what federal agencies were up to while Congress was out of session, and discusses state and local laws that advanced in the weeks leading up to Labor Day. The Insider Report includes the following sections: Insider Briefing [p. 1]. August is typically a slow month in Washington. With Congress out of session, there is an exodus from the hot and humid Capital. However, with only a few months left in the Obama Administration, August was anything but slow from a workplace policy perspective. The Department of Labor (DOL), National Labor Relations Board (NLRB) and Equal Employment Opportunity Commission (EEOC) released regulations and subregulatory directives that could have profound implications for employers. As the highly charged presidential and congressional elections rapidly approach, Members of Congress and stakeholders in the employer community weighed in on the final administrative push to effectuate its workplace policy agenda before the next president and Congress are sworn into office. Please see full Publication below for more information. more

The ERISA Litigation Newsletter - August 2016

Editor's Overview - This month’s newsletter features an article on the DOL’s recently published interim final rule that increases penalties for notice and disclosure violations, which generally became effective on August 1, 2016. The article explores the application of each penalty and emphasizes the need for plan administrators and sponsors to remain vigilant with respect to these notice and disclosure requirements. Be sure to review the Rulings, Filings and Settlements of Interest where we provide additional updates on the litigation involving the DOL’s new fiduciary rule, as well as guidance on ACA Reporting. Originally published by Bloomberg, BNA. more

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