Non-compete covenants in physician employment and shareholder agreements are common practice. Whether they are legally enforceable as drafted varies from state to state. In this podcast, Jackson Lewis attorneys explore how hospital systems and medical groups can protect their goodwill and legitimate business interests.
Governor Murphy issued Executive Order 252, requiring employers in covered healthcare and other high risk congregate settings, including hospitals, correctional facilities and certain long-term care facilities, to establish a policy that, among other things, mandates vaccinations or weekly testing for “covered workers.”
By September 7, 2021, “covered setting” employers must establish a policy that requires covered workers to (1) provide adequate proof of full vaccination; or (2) submit to testing, at least one to two times per week. The “covered workers” in the mandate includes, but is not limited to, both full-time and part-time employees, as well as contractors, and individuals providing operational or custodial services, or administrative support.
“Covered” healthcare settings include:
- Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers);
- Long-term care facilities;
- Intermediate care facilities;
- Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities;
- Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and opioid treatment programs);
- Community-based healthcare settings (e.g., Program of All-Inclusive Care for the Elderly, pediatric and adult medical daycare programs, and licensed home health agencies and registered healthcare service firms).
The Executive Order does not appear to apply to many types of primary care offices but, rather, seems to be directed toward higher population facilities. It is also unclear whether certain distinct offices within large hospital organizations are also subject to these requirements, if they do not fall under the definition of a “covered setting.” Employers should note that the requirements seem to apply to all employees, as opposed to only patient facing employees.
Employers should carefully review whether they are subject to the Executive Order, and prepare compliant policies as needed. Employers should also consider whether any other legal issues are implicated through their new policies, such as privacy issues pertaining to protected health information, and employee compensation issues pertaining to the costs of tests, or worktime spent completing a test.
To learn more, read our legal update publication here. If you have questions about how this Executive Order impacts your business or on your company’s specific practices or policies, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Healthcare Industry Team.
Due to a rise in transmission of the Delta variant causing a rapid increase in COVID-19 cases in California, the California Department of Public Health (CDPH) issued a new order to help prevent the spread of COVID-19 in hospitals, high-risk congregate settings, and other health care settings. To learn more, read the post on our California Workplace Law Blog.
The nation’s largest healthcare groups and associations have released separate statements endorsing the position that all healthcare workers should be fully vaccinated and supporting the implementation of mandatory COVID-19 vaccination policies in hospitals and health systems nationwide.
On July 21, 2021, the American Hospital Association (“AHA”), an organization representing close to 5,000 members, released a statement urging all healthcare workers to be fully vaccinated. The statement also voiced the AHA’s support of hospitals and healthcare systems that adopt mandatory COVID-19 vaccination policies for workers, while recognizing that such policies must be shaped by local laws and other factors impacting whether and how those policies are implemented. Similarly, America’s Essential Hospitals (“AEH”), an association representing more than 300 members, also released a similar statement encouraging mandatory vaccination policies. AEH’s statement concludes by urging its member hospitals to “take quick action, consistent with federal and state guidance and laws, to require vaccination for their employees.”
The AHA encourages healthcare systems to take certain steps to facilitate an orderly roll out of any mandatory policy, including:
- Providing exemptions to the policy for medical reasons and accommodations (e.g., a sincerely held religious belief);
- Following relevant CDC guidelines, OSHA requirements, and other applicable state or federal law and/or guidelines regarding the use of personal protective equipment and other infection control practices for unvaccinated workers who have been granted an exemption or accommodation;
- Implementing the policy in compliance with applicable local and state laws;
- Following CDC and FDA guidelines on how to determine which workers are eligible and should be prioritized for vaccination;
- Monitoring data relating to FDA authorized or approved vaccines that are being distributed;
- Providing workers with information about the efficacy and safety of the COVID-19 vaccine in an effort to encourage voluntary vaccinations; and
- Offering flexibility in workers’ schedules to permit time for workers to receive the vaccine and recover from potential side effects.
Shortly after the AHA and AEH released their statements, a group of more than 50 health care organizations (including the American Medical Association, the American College of Physicians, the American Academy of Pediatrics and the American Public Health Association) released a joint statement calling all healthcare and long-term care employers to create a mandate requiring that their employees receive the COVID-19 vaccine.
These statements follow a recent trend set by local state hospital associations, including the Connecticut Hospital Association and Virginia Hospital & Healthcare Association, where such organizations have voiced their support of mandatory COVID-19 vaccination policies for healthcare workers. Additionally, dozens of hospitals and healthcare systems nationwide have publicly announced the implementation of a mandatory COVID-19 vaccination policy for their workers.
Healthcare employers considering mandatory vaccination policies must consider key legal and practical considerations in crafting any such policy. In addition to the items identified in the AHA statement, healthcare employers must consider additional factors, including: 1) additional obligations that may exist in unionized workforces; 2) interactive dialogue processes relating to accommodation requests; 3) employee relations considerations and messaging; 4) consequences for noncompliance; 5) applicable state and local laws and regulations; 6) whether and how the employer will confirm vaccination status and the coordination of related recordkeeping; and 7) the impact such a mandate will have on wage and hour compliance.
If you have questions about how these trends impact your business or on your company’s specific practices or policies, please reach out to the Jackson Lewis attorney whom you regularly work, or any member of our Healthcare Industry Team.
Summer law clerk Jennie Marco contributed significantly to this post.
Employers in the healthcare setting have been grappling with issues related to COVID-19 vaccinations that raise many practical and legal questions, starting with: should we ask about vaccination status? Should we require employees to be vaccinated? If not required, should we encourage employees to be vaccinated? How should we encourage it? Identifying these questions is a helpful starting point, but it may be more useful to know what is really happening in the field. Looking for answers, Jackson Lewis surveyed healthcare employers; 42 participants responded as follows:
(1) Do you plan to survey your workforce on vaccine status? 54.76% say YES.
(2) What percentage of your employees are vaccinated (or that you believe to be vaccinated)?
The highest percentage of participating employers (35.71%) believe that 60% to 79% of their workforce is vaccinated, with an estimated 40% to 59% of employees vaccinated close behind (30.95% of employers who participated in the survey).
(3) Do you require employees to be vaccinated or are you planning to do so?
Most employers surveyed (70%) mostly likely will not require vaccinations due to concerns with legal or employee relations issues. Another 18% responded they would only consider mandating vaccinations if required by law. Of the 12% who do plan to/are considering a mandate, 4% will mandate for all employees, 6% will only mandate for employees who return to the office, and the final 2% will mandate that employees who travel are vaccinated.
(4) Do you offer any incentives for employees to receive the vaccine (including financial, paid time off or other benefits)?
Last, over a third of employers who participated in the survey are offering incentives to encourage employees to become vaccinated. Another almost 10% are considering incentives. However, most employers (57.14%) responded that they are not offering or planning to offer incentives.
Please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team, to learn more about how to successfully navigate vaccination issues regarding your workforce.
Before the pandemic hit, remote work was, in most cases, a thing of the future. Concern about the productivity of remote workers caused many employers to resist these arrangements. Employees, they thought, would rather be taking care of laundry or kids than taking care of their duties. Enter Covid-19 – and most employers around the world were left without a choice: life threw remote work upon them and it became—in most instances—their only alternative. More than one year of telehealth, work-from-home and virtual meetings later, they have survived and, to the surprise of some, productivity in many cases has improved. It might seem, then, that remote work is here to stay, at least for non-patient facing roles.
But…is it? As vaccination rates go up and transmission rates go down, employers around the country are debating whether to bring employees back to the workplace or allow them to keep working remotely. And, whatever option they choose, two things hold true: employers will navigate uncharted waters and employees—if they get called back—will not return to the workplace they once knew. In this decision-making process, questions inevitably will arise. Will all (or only some) employees be required to return to the workplace? Will they be there for the full workweek or will they have a reduced in-person schedule? Must those who return be fully vaccinated? If not, will employers provide incentives to those who are? Will employers accept lack of childcare as a reason to permit remote work? Will out-of-state work be acceptable? What tax liabilities, if any, does that create?
While there is no right, wrong or definite answer to many of these questions, employers embarking the “getting back to normal” ship need to consider them. Choosing either to go back to the workplace or to stay remote—if not done with the appropriate knowledge and planning—may result in unintended discriminatory practices and unfortunately entail the risk of claims. And, while we have some guidance from federal and state agencies on what’s legal and what’s not, best practices will always depend on each employer’s circumstances, structure and employee roles.
So, what should employers do? First, understand their and their employees’ needs. Can they support fully remote work for all or certain positions? Do they want to? Would a hybrid model work best? Do they want to maintain robust telehealth offerings? Will remote work–including with out of state employees–help recruit and retain non-patient facing workers? Second, evaluate if they have in place all policies required to implement their return-to-work (or stay-remote- or hybrid) strategy. Do their policies and practices appropriately address all issues? Will employees feel safe going back into the workplace? Is their remote work policy current? If not, their third step is to create and/or modify internal policies and procedures to best suit their post-pandemic workplace, whatever it may look like. Hot topics to include and/or review are vaccination rules, programs and/or incentives, employee leaves—whether pandemic related or not—, anti-discrimination policies and change communication strategies.
Whatever you decide your post-pandemic workplace will look like, we’re here to help. Please reach out to your Jackson Lewis attorney who can provide additional best practices and resources as we navigate these challenges together.
On May 11, 2021, the Centers for Medicare & Medicaid Services (CMS) of the U.S. Department of Health & Human Services published an interim final rule/guidance to establish COVID-19 vaccination requirements for Long-Term Care (LTC) facilities. The requirements are applicable to both residents and staff. LTC facilities have already been managing COVID-19 vaccination requirements both at the federal and state levels. CMS’ interim final rule, however, adds new requirements for educating residents (or resident representatives) and staff regarding the benefits and potential side effects associated with the COVID-19 vaccine, offering the vaccine, and reporting COVID-19 vaccine and therapeutics treatment information to the Center for Disease Control’s (CDC’s) National Healthcare Safety Network (NHSN). Read our full analysis on our Workplace Privacy, Data Management & Security Report.
The Occupational Safety and Health Administration’s (OSHA) recent Updated Interim Enforcement Response Plan for COVID-19 (Response Plan) was issued on the same day it announced its National Emphasis Program (NEP). Healthcare employers will continue to be a target of OSHA’s inspection efforts pursuant to the NEP. The Response Plan provides directions for OSHA compliance officers on how to conduct COVID-19 inspections.
The Response Plan details the categories of documents compliance officers should request. It also identifies specific standards that are most applicable to infectious diseases, which are:
- Recording and Reporting Occupational Injuries and Illness;
- Personal Protective Equipment;
- Respiratory Protection;
- Accident Prevention Signs and Tags;
- Access to Employee Exposure and Medical Records; and
- The General Duty Clause of the Occupational Safety and Health Act.
The Response Plan also suggests OSHA will expect stricter compliance than it did during the early stages of the pandemic. For example, the Response Plan acknowledges OSHA has been exercising some enforcement discretion for the recording of COVID-19 cases, but notes that “employers should have an increased ability to determine whether an employee’s COVID-19 illness is likely work-related” in light of increased understanding of how the infection is transmitted and prevented.
Many healthcare providers have struggled with shortages of supplies and personal protective equipment, such as respirators. OSHA previously used enforcement discretion in addressing those situations. However, shortages are unlikely to serve as a compelling excuse for non-compliance. The Centers for Disease Control and Prevention (CDC) recently revised its guidance about sanitizing and reusing respirators due to an increase in supply. The Response Plan similarly states that shortages of health and safety equipment, such as N95 filtering facepiece respirators, are “becoming less of a barrier to compliance.” The Response Plan instructs compliance officers to evaluate the employer’s good faith efforts to comply with OSHA standards, including whether the employer “thoroughly explored alternative options to comply with the applicable standard(s),” like remote communications or training and efforts to obtain alterative respiratory protection devices. However, the Response Plan reiterates that enforcement discretion will not be exercised when respirators and other supplies and services are “readily available.”
A summary of the Response Plan can be found here.
In March 2021, the Office of Inspector General (OIG) at the U.S. Department of Health and Human Services (HHS) released results from a national survey conducted between February 22-26, 2021 of front-line hospital administrators at 320 hospitals across 45 states, the District of Columbia, and Puerto Rico. The purpose of the survey was to assess how responding to the ongoing COVID-19 pandemic has impacted hospital administrators’ capacity to care for patients, staff, and the communities they serve.
The survey focused primarily on (1) the most difficult challenges administrators face responding to the COVID-19 pandemic right now and the strategies used to address those challenges; (2) each organization’s greatest concerns for the future; and (3) how the government can best support hospitals.
Administrators specifically reported the pandemic had resulted in increased hours and responsibilities for staff, including longer hours, extra shifts, reassignments to COVID-19 related duties and tasks, and mandatory overtime, leading to exhaustion and mental fatigue. Importantly, they also reported concerns about the trauma experienced by staff members and the grave realities of the pandemic weighing on their mental health, including mourning the loss of colleagues from COVID-19, being on the front lines caring for dying patients in their last moments without any patient family members present, and facing separation from their families for extended periods of time in an effort to keep their family members safe from potential exposure.
Turnover and Staffing Shortages
Administrators also reported that hospitals have experienced higher than normal turnover among medical staff causing staffing shortages, especially in positions such as respiratory therapists, certified nursing assistants, phlebotomists, laboratory technicians, and support staff critical to hospital operations. Hospitals attributed much of this turnover to the fatigue from pandemic care, prompting staff members to retire early or even leave healthcare altogether. With potentially fewer financial resources and a smaller labor pool, smaller and rural hospitals reported that these shortages especially impacted them.
To address staffing shortages hospitals have relied more extensively on traveling nurses and staffing agencies to fill essential roles, although patient care concerns have resulted because individuals filling these roles are less familiar with individual hospitals’ protocols. Administrators are also concerned that the COVID-19 pandemic has deterred interest in the healthcare industry for students–a staffing impact that could remain for years to come.
As vaccines are distributed across the country, healthcare workers were some of the first to receive them. However, administrators reported challenges responding to vaccine misinformation amongst staff and communities, as well as ensuring vaccine access for rural and low-income communities. Administrators face difficulties convincing staff members of the importance and safety of the vaccine.
Overcoming these Challenges
To combat these challenges, administrators noted that they are establishing employee assistance and mental health and social support programs for staff. They are also leveraging resources to reallocate staff from other departments and trying to retain and attract talent with higher pay, overtime incentives, bonuses, and other benefits where possible. Further, they are launching vaccine education campaigns to educate employees and their communities from which they are seeing results.
Certainly, the survey underscores that the strains of the COVID-19 pandemic–both physical and emotional–are far-reaching. Please reach out to your Jackson Lewis attorney who can provide additional best practices and resources as we navigate these challenges together.
The Office for Civil Rights (OCR) has taken enforcement action against a small New Jersey plastic surgery practice for its failure to timely respond to a patient’s records access request. Putting in place relatively simple policies, carefully developing template forms, assigning responsibility, training, and documenting responses can go a long way toward substantially minimizing the risk of an OCR enforcement action and its severity. Read more here.