OSHA recently announced a new enforcement program targeting nursing home and residential care facilities. The program, effective a week-and-a-half ago, focuses OSHA compliance officers on inspecting nursing homes and assisted living facilities. More info. is available on Jackson Lewis’ OSHA Law Blog at the following link: http://www.oshalawblog.com/
Healthcare employers - we thought you may be interested in this 9th Circuit decision addressing the request of an ICU neo-natal nurse to "opt-out" of the employer's unplanned absence policy as an accommodation. A summary of the opinion is available on Jackson Lewis' Disability, Leave and Health Management blog at http://www.disabilityleavelaw.com/.
Employers with health professionals on-site to provide medical services to employees should be aware of a wide range of issues including workplace safety, disability & leave management, privacy, etc. Jackson Lewis has prepared a white paper to aid employers in spotting these issues. We hope you find it helpful and easy to read.
On December 23, the National Labor Relations Board (“NLRB”) announced that it was postponing the effective date of its employee rights notice-posting rule from January 31 to April 30. This is the second postponement of the rule which was initially to go into effect on November 14, 2010. Several employer groups have filed lawsuits challenging the authority of the Board to require a poster and impose penalties for non-compliance. The Board stated that it was postponing the effective date “at the request of the federal court in Washington, DC hearing a challenge regarding the rule.”
Keep reading this blog for updates, or feel free to contact us for more details.
The National Labor Relations Board (NLRB) has voted 2-to-1 to approve Chairman Mark Pearce’s resolution to adopt a limited number of amendments to the NLRB election process. According to the agency, the modified elections rules are intended to reduce “unnecessary pre-election litigation.”
The six amendments grant the NLRB and its hearing officers significant latitude in deciding election issues. They also substantially limit an employer’s ability to appeal significant pre-election and post-election issues.
Chairman Pearce and Member Craig Becker supported the amendments. Member Brian Hayes was against them.
It appears that the NLRB will publish a final rule, based on the modifications, and the Board will hold an official vote for formal adoption. As the Board will lose its “quorum” when Member Becker’s term expires at the end of this calendar year, this vote must occur on or before December 31st.
Since health care employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever to consider a comprehensive preventive labor relations program. We recommend that the program include potential elements such as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law when having such discussions and/or during union organizing, (3) bargaining unit analyses (for example to determine who is a supervisor), and (4) legal analysis and client development of best HR practices consistent with changes in the law (such as the NLRB’s initiative relating to protected concerted activity).
The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently reiterated its intention to begin aggressively inspecting nursing homes and other residential care facilities in the next few months. Its “Nursing Home National Emphasis Program” was instituted in response to reports of increased and above-average rates of injuries and illnesses among hospital and health care workers. According to statistics from the DOL’s 2010 report on Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, nursing aides, orderlies, and attendants were high on the list of employees with medical issues that kept them from work. Such employees are out at approximately four times the national average. Health care employers should consider self-auditing their facilities on a regular basis and consulting with counsel to ensure they are in compliance with OSHA regulations and other employment laws.
The Office of the National Coordinator for Health Information (ONC) is seeking input from the public on the role of mobile communication devices (smart phones, tablets, net books, etc.) in the exchange of personal health information within the healthcare industry, i.e. the use of such devices by physicians, hospitals and managed care providers and the ability to protect the privacy of such information. As part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act) of 2009, ONC is particularly interested in consumer and healthcare provider preferences for how such protected information should be exchanged and the challenges involved in maintaining privacy in the exchange of such information. Comments are due December 31, 2011. For more information see the following link to Jackson Lewis' workplace privacy blog:
The Office of Civil Rights (OCR) recently launched a HIPAA compliance audit program with 150 on-site audits scheduled to begin in February 2012. Covered entities and business associates need to be prepared and take stock of their HIPAA compliance. For more information see the following link to Jackson Lewis' privacy blog:
The National Labor Relations Board has just announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012.
The NLRB’s stated reason for the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The Board cited confusion over which business fall within the jurisdiction of the statute. Unlike many other employment laws, coverage does not depend on a minimum number of employees, but the extent to which a company engages in interstate commerce. The thresholds, generally expressed in terms of gross volume of business for different industries, are very low. Almost all private sector employers are subject to the Act.
The Board states that “[n]o other changes in the rule, or in the form or content of the notice, will be made."
Keep reading this blog for updates, or feel free to contact us for more details.
A group of nurses and nurses’ assistants alleging that their employer, a health care system, violated the Fair Labor Standards Act by failing to compensate them for interrupted meal periods filed a collective action in behalf of themselves and other similarly situated employees. Usually, at the early, “notice” stage a court only requires a preliminary showing that plaintiffs’ claims are sufficiently representative of those of other putative class members. In this case, however, the district court took the unusual step of denying the plaintiffs’ motion based on its view that the evidence obtained during pre-trial discovery did not support their claim that that the employer had a “policy” of forcing nurses and assistants to respond to pages and work during their unpaid lunch breaks. Blaney, et al. v. Charlotte-Mecklenberg Hosp. Auth. d/b/a Carolinas Healthcare Sys., No. 10-cv-592 (N.C. Dist. Ct. Sept. 16, 2011). This was an excellent outcome for the employer, as cases certified as a collective action often are settled because of the risk of huge damage awards and the extraordinary cost of litigating them to verdict. This decision also points to some important preventive strategies.
Preventive Strategy Recommendations: Interrupted meal breaks are common in acute care and other healthcare settings and many organizations are vulnerable to these collective actions, especially where they automatically deduct a half hour for meal breaks. For this reason, there is a growing trend to adopt the “best practice” of requiring staff to “swipe out” for meal periods and swipe back in when they have to return to the unit. Even where the automatic deduction practice is maintained, it is important to have a written policy explaining that staff are to alert the supervisor when their meal periods have been missed or interrupted due to patient care responsibilities, so that they can be appropriately be paid for such time. The Facility should document the dissemination of this policy to supervisors and staff and take the added step of conducting in-services on the policy. These steps will go a long way to eliminating the problem and preventing and/or defeating FLSA claims and efforts to win certification of any collective action.
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