New Jersey Governor Phil Murphy has signed an Executive Order directing “health care facilities” designated by the Office of Emergency Management (OEM) to submit reports on capacity and supplies by 10:00 a.m. each day. The Governor signed Executive Order 111 on March 28, 2020. It is the tenth EO he has signed since the onset of the coronavirus (COVID-19) crisis. EO 111 goes into effect immediately. Read more.
The Department of Labor has been hard at work issuing FAQs to try to explain the provisions of the Families First Coronavirus Response Act before it goes into effect on April 1, 2020. To see earlier reports on these FAQs, see our blog posts on March 24th and March 27th. The latest FAQs (we are now up to 59 FAQs from the DOL on this subject), include a number of helpful provisions for employers, in particular health care employers, some of which are different than what had previously been reported.
Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL). As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice. Therefore, to the extent employers rely upon these, before official regulations are issued by the DOL, they should check to make sure they are reviewing the current version and print a copy of the DOL’s website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes.
The FFCRA allows employers of health care providers and emergency responders to exclude these employees from the leave provisions under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. In its definitions, the FFCRA defined “health care provider” to have the same meaning as under the FMLA (which is limited primarily to doctors and other providers). The DOL has clarified in its FAQs that the term “health care provider” actually has two different meanings in the act. According to the DOL, the definition section which limits health care providers to doctors and specific individuals, only applies to define the individual who advises an employee to self-quarantine under the second basis for paid sick leave. The DOL now provides a new, second definition of health care provider for the purpose of determining who can be excluded under the health care employee exception. Below are the relevant FAQs from the DOL on the definition of health care provider and emergency responders. You should consult with counsel about how these FAQs and the FFCRA apply to your company’s own circumstances:
55. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?
The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
56. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
57. Who is an emergency responder?
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions.
With first responders on the front lines of helping to fight the coronavirus, sharing information about potential exposure to COVID-19 is critical to protecting them and preventing further spread. In these situations, the information shared is most often “protected health information” (PHI) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. To help clarify when PHI can be shared in these circumstances, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) issued guidance relating to sharing PHI about individuals who have been infected with or exposed to COVID-19 to law enforcement, paramedics, other first responders, and public health authorities. Our colleague in the Privacy, Data and Cybersecurity practice group explains the new guidance. Read more here.
The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have issued guidance to help employers monitor and respond to the spread of novel coronavirus (COVID-19). OSHA has a webpage dedicated to COVID-19 that provides background on the virus and identification of potential exposure hazards, as well as details some of OSHA’s expectations for employers in responding to the potential risk of COVID-19 infection. OSHA also has released a detailed guidance document for employers: Guidance on Preparing Workplaces for COVID-19. Our colleagues in the Workplace Safety and Health practice group published an alert discussing OSHA’s recommendations. You can read more about it here.
As the coronavirus spreads across the globe and in the United States, providers, businesses, employers, and others are struggling to understand what medical information they can collect and what information they can share. These are difficult questions the answers to which involve considering factors such as long-standing compliance requirements (e.g., HIPAA, ADA, GINA, state law), the unprecedented times we are in, business risk, and common sense. Our colleague in the Privacy, Data and Cybersecurity practice group published an informative article about the HIPAA Privacy Rule waiver and other medical information questions during the COVID-19 pandemic. Read more.
Plaintiffs who assisted physicians, nurses, and others with transitioning to new computerized patient-management systems in hospitals and other health care facilities nationally were denied FLSA conditional certification to the extent the plaintiffs sought to include workers who were not assigned to a Minnesota project at issue or not Minnesota residents due to specific jurisdiction considerations. Our colleagues in the Class Actions and Complex Litigation practice group published an informative article about whether a potential collective may be limited at the conditional certification stage or earlier. You can read more about it here.
The outbreak of a new coronavirus that is believed to have began in central Chinese city of Wuhan and now appears to be spreading to the United States is driving concerns for organizations around preparedness regarding their operations, their customers, and their employees. In the healthcare sector, as with prior contagious disease outbreaks, fears about contracting the virus could lead to impermissible “snooping” and sharing of information by healthcare employees. Our colleague in the Privacy, Data and Cybersecurity practice group published an informative article about basic HIPAA privacy and security safeguards. You can read more about it here.
Rapid Emergence of Consumerism
Healthcare consumers continue to pay more and more toward their out-of-pocket healthcare costs, driving a shift away from volume-based compensation models toward outcomes-based payment arrangements. By all accounts, meaningful consumerism in the healthcare market is rapidly emerging.
Historically, healthcare transactions were business-to-business encounters with traditional healthcare business processes that tended to neglect consumer wants and needs. With the rise of consumerism, however, healthcare providers and supporting industry actors are quickly adopting consumer-centric processes so they can more effectively work with consumers. Healthcare providers and supporting industry actors will risk losing relevance if they do not embrace the new role of the consumer in healthcare.
In the coming year, the healthcare industry will continue to adopt tools and techniques to better understand consumer behavior, provide consumers with the information necessary to inform and drive consumer decision-making and offer greater consumer convenience. Examples include minute clinics in grocery and other retail stores, settings with extended hours seven days a week, urgent and walk-in care clinics, telemedicine visits and around-the-clock access to nurses and other healthcare providers by telephone.
The data suggest that these trends will accelerate and lead to even more profound market transformation in the years to come.
Innovation in clinical care delivery and healthcare business processes have the potential to reshape the healthcare market. Healthcare providers and others who support the industry will rapidly lose market share if they do not evolve their business and clinical care models to leverage innovation.
Recognizing this dynamic, healthcare providers and others who support the industry are and will continue to collaborate with a vast variety of businesses and other organizations to leverage innovation. For example, many healthcare providers are using technology to enable patients to access clinical care through video visits, e-visits and other virtual visits. Still other healthcare providers are using improved techniques to enhance diagnostic medicine, precision medicine, remote monitoring, patient engagement and patient experience, to name just a few.
The need for the rapid adoption of transformation in the healthcare industry will continue to drive provider demand for access to capital, resources and administrative scale, causing ongoing consolidation (both vertical and horizontal) among healthcare providers. And these consolidated healthcare providers will need to develop organizational structures that capitalize on new core competencies, such as data analytics that inform and improve patient outcomes, experiences and cost. With these transformational changes, the healthcare industry will look to engage consultants and recruit an even more modern workforce that is adept at leveraging innovation.
Prescription Drug Pricing
The rising cost of prescription drugs will remain a top healthcare priority throughout the nation in 2020. Some prescription drugs that have been on the market for years have now quadrupled in cost, leaving patients to determine with their physicians the best cost-effective drug regimes. While the availability of generic and biosimilar medicines is a tested solution to lowering the cost of prescription drugs, many medications do not offer those alternative options. Patients affected by the increase in prescription drug pricing claim that they are skipping doses, splitting pills and
abandoning treatments altogether.
To help reduce the growth of prescription drug prices and out-of-pocket costs, several 2020 presidential candidates are now proposing policies in their campaigns. Some lawmakers have already introduced legislation requiring that television commercials for prescription drugs disclose prices, while other lawmakers have approved programs that would cap the monthly co-pays for life-saving drugs. In 2020, pharmaceutical companies will likely be required to disclose even more financial information to help both government officials and the public understand how they establish drug prices. Also on the horizon in 2020 is government regulation on the rate at which drug prices can increase.
Opioid Use Disorder
Death by overdose has been at epidemic levels in the United States for the past 20 years, with opioid overdoses rising every year — killing 130 Americans every day. In 2018 alone, the United States allocated more than $600 billion to tackling the opioid crisis, and in the past four years, it has spent over $2 trillion. The costs associated with opioid use disorder include costs related with criminal justice, lost productivity, treatment of overdoses and treatment of babies born dependent on opioids.
At the state level, the opioid crisis has affected health care systems, public safety and corrections, child protective services and other agencies. Eleven states have partnered to examine proposed strategies for combating the opioid crisis through Medicaid programs and public health departments, with the hope of better informing the public of the consequences of opioid misuse. Some states, such as Florida, have implemented prescription drug monitoring programs (PDMPs) to limit the amount of opioid prescriptions to no more than a three-day supply. While these strategies slightly lowered the number of opioid overdoses in 2019, it is expected that both state and federal governments will allocate further resources to continue to address the opioid use disorders crisis.
Read more national trends, legislation, regulation and litigation that we expect to have a significant impact on the workplace in 2020.
Processing delays for immigration cases have increased by 46 percent in the past two fiscal years and 91 percent since FY 2014. One healthcare staffing company has sued Department of Homeland Security and U.S. Immigration and Citizenship Services, alleging the delays in issuing H-1Bs “is impairing [their] ability to effectively and efficiently meet the medical needs of individuals nationwide.” Our colleague in the Immigration practice group discusses the effect USCIS processing delays have on businesses and families. Read more here.
On November 21, 2019, the House passed H.R. 1309, Workplace Violence Prevention for Health Care and Social Service Workers Act (the Bill), with notable bi-partisan support (251-158). If passed into law, the Bill would largely implement the State of California’s healthcare workplace violence standards nationally. The Bill has not made it to the Senate, however, and the President Trump administration has stated it intends to veto it as written.
As summarized on the congressional website:
“This bill requires the Department of Labor to … promulgate an occupational safety and health standard that requires certain employers in the health care and social service sectors … to develop and implement a comprehensive plan for protecting health care workers, social service workers, and other personnel from workplace violence.” Employers would also be required to “investigate workplace violence incidents, risks, or hazards as soon as practicable”; “provide training and education to employees who may be exposed to workplace violence hazards and risks”; “meet record keeping requirements”; and “prohibit acts of discrimination or retaliation against employees for reporting workplace violence incidents, threats, or concerns.”
The Bill defines “workplace violence” as “(i) the threat or use of physical force against a covered employee that results in or has a high likelihood of resulting in injury, psychological trauma, or stress, without regard to whether the covered employee sustains an injury, psychological trauma, or stress; and (ii) an incident involving the threat or use of a firearm or a dangerous weapon, including the use of common objects as weapons, without regard to whether the employee sustains an injury, psychological trauma, or stress.” OSHA reports that healthcare and social assistance workers are four times more likely to experience serious workplace violence (meaning incidents that require time off work to recuperate) than employees in other industries.
The American Hospital Association (AHA) opposes the Bill. “Federal support of research to identify best practices for different workplace settings and circumstances, and disseminating information about such best practices would do more to advance and promote workplace safety than the adoption of a ‘one-size-fits-all’ standard for compliance and enforcement,” Thomas Nickels, AHA’s executive vice president, stated in a public letter on the topic. Supporters of the Bill include many labor unions.
Stay tuned for any legislative developments. As always, please contact your Jackson Lewis attorney regarding best practices for responding to any workplace concerns, including proactively addressing workplace violence issues.