Pay Equity Challenges Continue: EEOC Sues Nursing Home for Paying Female Nurse Less

Pay equity challenges continue to make the news in the healthcare setting, primarily in the context of physician pay equity gaps. This month, the journal Pediatrics published data from the American Academy of Pediatrics’ Pediatrician Life and Career Experience Study (PLACE), which included 1,000 physician responses on income and 1,300 responses on household responsibilities. The income data (from 2016) showed that female pediatricians were paid only 76 percent of their male peers’ income. At the same time, based on the household responsibilities data (from 2015), female pediatricians reported that they had more time-consuming responsibilities in their own home life than male physicians.

Although the issue of physician pay certainly deserves continued focus, it is also important that your organization is dialed in on any pay gaps in non-physician roles. This month, the EEOC sued a Kansas City nursing home in the Western District of Missouri under the Equal Pay Act (EPA), alleging that the employer paid a female LPN $21 dollars an hour, but paid two male LPNs performing the same job $25 dollars per hour. EEOC v. Edgewood Manor OPCO LLC, Case No. 19-cv-00760.

The EPA generally prohibits employers from paying men and women differently for a job that requires the same skill, effort, responsibility, and working conditions. The employee does not need to prove any intentional sex discrimination to make out an EPA claim. Rather, if an employer cannot prove that there is a factor other than sex that explains the difference in pay between the female employee and her male counterpart(s), the employer will be liable for the difference (plus an equal amount in liquidated damages).

In this case, the EEOC is alleging that the difference was “willful,” meaning that if the suit is successful the plaintiff may be entitled to up to three years’ back pay as damages. In a press release the EEOC issued regarding the lawsuit, it stated that “[t]he fact that it’s still necessary to enforce the Equal Pay Act 56 years after its passage is astonishing. But the EEOC is dedicated to enforcing the law against both public and private employers who it finds have violated this key civil rights statute.” This case is in its early stages, but it is a good reminder (and a warning) that you should not wait for an EEOC Charge to address any pay gaps at your organization as appropriate, and at any and all levels. In addition, employers need to be concerned about state agencies and plaintiff’s attorneys who may bring claims under the many state laws that are more demanding than the EPA.

For more information on how to get ahead of pay equity issues, contact your Jackson Lewis attorney.

OCR Recognizes Insider Threats to HIPAA PHI, You Should Too

As we have observed here, news reports of security risks, hackings and breaches caused by individuals, terror groups or even countries around the world certainly are important and can be unsettling. But, for many organizations, including healthcare providers and business associates, a significant and perhaps more immediate area of data risk is malicious insiders. On August 29, the Office for Civil Rights (OCR) published its 2019 summer cybersecurity newsletter entitled, “Managing Malicious Insider Threats,” acknowledging this threat and providing some best practices to neutralize it. Our colleague in the Privacy, Data and Cybersecurity practice group published an informative article on the various forms of insider threats and how to stop them. You can read more about it here.

Mandatory Nurse-to-Patient Staffing Ratios: Is Your State Next?

Healthcare facilities in California have been required to adhere to mandatory nurse-to-patient ratios since 2004. These ratios vary depending upon the degree of patient care involved. More recently, Massachusetts passed a law requiring mandatory staffing minimums in the state’s ICU’s. Other states are considering jumping on the bandwagon. A California-like bill is currently pending in the Illinois General Assembly. Additionally, groups in Florida, Iowa, Minnesota, New Jersey, New York, Texas, and the District of Columbia are asking state lawmakers to consider similar measures.

At first blush, such legislation might not seem controversial, however, it is a topic of fierce debate among healthcare policy experts. Proponents, such as patient advocacy groups and nurses’ unions, tout that mandatory ratios will result in improved patient outcomes and reduced nurse stress and exhaustion levels.

Opponents, such as healthcare executives and administrators, express skepticism for some of the reasons summarized below.

  1. Increased Costs.  Most healthcare facilities will be required to hire more nurses in order to ensure ratio compliance. Additionally, as has occurred in California, healthcare facilities may feel compelled to increase nurses’ salaries and benefits in order to retain them. Already budget-strapped healthcare facilities will have to divert resources from other priority areas. In addition, some question whether there are enough nurses available in the labor market to satisfy these patient ratios in all facilities.
  2. Longer Patient Wait Times.  Consider this scenario: A nurse has four patients on her floor. This is the maximum number of patients she is allowed to treat. Two of her patients are not currently on the floor because they are at physical therapy. The other two are stable in their beds. There is a new patient waiting in the ER to be admitted to the floor. Under a ratio law, the nurse cannot go down to the ER to bring the patient up to the floor for admission even though she has no current patient care needs to address. The patient will have to wait in the ER until coverage is available.
  3. Lack of Flexibility And Potential Poor Patient Outcomes. Another example: There is a nearby industrial chemical spill or a catastrophic fire. Scores of patients are pouring into the ER requiring immediate care. Under a ratio law, nurses cannot be diverted from one floor. The healthcare facility must wait for other nurses to report to work. This could have a negative impact on the prognosis of patients who need urgent treatment.

Is there a compromise that will make both sides happy? Possibly.

At least 21 states have varying regulations that require healthcare institutions to develop their own staffing policies and plans. Many healthcare facilities in these jurisdictions have found success managing the competing tensions surrounding staffing issues by collaborating with stakeholders on both sides to develop staffing plans that meet the specific needs of their community demographics.

While it remains to be seen what additional action will be taken by states considering mandatory ratios, now is an opportune time for healthcare institutions to review their nurse staffing plans, and consider what changes may be appropriate. Changes to those staffing plans may require bargaining with nursing unions.

To learn more about how Jackson Lewis can assist healthcare organizations evaluate and improve staffing plans, please contact a member of Jackson Lewis’ Healthcare Industry Team.

Healthcare Organizations, Is Your Patient Portal Secure?

While healthcare organizations are embracing new technologies such as patient portals, a recent report shows that organizations’ cybersecurity measures for these technologies are behind the times. A patient portal is a secure online website that allows patients to access their Electronic Health Record from any device with an Internet connection. Many patient portals also allow patients to request prescription refills, schedule appointments, and securely message providers. With this increased access for patients comes the risk that someone other than the patient will gain unauthorized access to the portal, and to the patient’s electronic protected health information (ePHI). Our colleagues in the Privacy, Data and Cybersecurity practice group explains the importance of HIPAA compliance and data security. You can read more about it here.

New California Law Allows Sharing of Home Care Aides’ Contact Information with Unions on Demand

A controversial amendment to the California Home Care Services Protection Act (Home Care Act) requires the state Department of Social Services (DSS) to provide the names, phone numbers, and addresses of new or renewing registered home care aides (HCAs) to labor unions on request, unless the aides opt out. The new law, which raises concerns over privacy rights, became effective on July 1, 2019. You can read more about it here.

New York Expands Telemedicine Regulations

The authorized use of telehealth to deliver mental health services to New Yorkers has been expanded by amendments to the state Office of Mental Health’s (OMH) Telemental Health Services regulations increasing the types of professionals who may provide care and the places where care recipients can be treated. Our colleagues in the Health Law and Transactions practice group offer details on the expanded regulations. You can read more about it here.

Hospital Settles Claim of Religious Discrimination Based on Applicant’s Refusal of Flu Vaccine

The EEOC announced that it reached a $74,418 settlement with a hospital in Owosso, Michigan, to settle a religious discrimination lawsuit the agency had filed under Title VII against the hospital in U.S. District Court for the Eastern District of Michigan. See https://content.govdelivery.com/accounts/USEEOC/bulletins/24d7ec9; and https://www.eeoc.gov/eeoc/newsroom/release/2-14-18.cfm.

The plaintiff in the case, Yvonne Bair claimed she applied to work at Memorial Healthcare as a medical transcriptionist and was offered the position. However, the hospital revoked its employment offer after she informed the hospital that her Christian beliefs required her to forego receiving an influenza shot or spray, which was a requirement of employment at Memorial. Bair, who would eventually have worked from home, had offered to wear a mask while working in the hospital. Significantly, according to the EEOC, the hospital had a policy allowing employees who had medical problems preventing them from receiving a flu shot to use masks, and it had allowed such employees to forego the vaccine.

According to the EEOC, the hospital will pay Bair $34,418 back pay, $20,000 compensatory damages, and $20,000 punitive damages. In addition, Memorial confirmed that it now permits those with religious objections to wear masks in lieu of having a flu shot. The hospital also agreed to train managerial staff on its religious accommodation policy.

Title VII requires that employers accommodate employees’ religious beliefs. It requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.

Takeaways

First, the legal requirement to accommodate an employee’s “sincerely held” religious belief applies regardless of whether the employer thinks the belief is “illogical,” “unacceptable,” or “incorrect.” See Dettmer v. Landon, 799 F.2d 929, 932 (4th Cir. 1986). As one court noted, “one man’s religion will always be another man’s heresy.” United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995). An employer’s inquiry must be limited to whether the employee’s belief is sincerely held. The law did not permit Memorial to consider whether Bair’s religious belief prohibiting flu vaccination was logical or medically advisable.

Second, the obligation of religious accommodation applies to prospective employees just as it applies to workers already employed. An employer may not permit an applicant’s need for a religious accommodation to affect its hiring decision, unless the employer can demonstrate undue hardship.

Finally, an employer violates an employee’s religious rights if a more favorable accommodation is provided to other employees for non-religious purposes. For example, an employer may not treat an employee’s requests for leave for religious observance differently than it treats employee requests for leave for non-religious purposes. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70-71 (1986) (“Such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness.”). In the case of Memorial Hospital, the lawsuit alleged it treated the employee’s request for religious accommodation to wear a mask, rather than receive a flu vaccine, differently than the same request made by employees for medical, rather than religious, reasons.

As healthcare employers continue to grapple with responding to employees’ religious objections to vaccination programs, they should seek legal counsel to ensure they are responding in a manner that is consistent with applicable local, state and federal laws prohibiting religious discrimination. Jackson Lewis attorneys are available to assist you in making prudent decisions for your institution.

Vermont Court Finds Patient Can Sue Hospital and an Employee for Breach of Confidentiality

In a landmark ruling, the Vermont Supreme Court recently held that a patient had standing to sue both the hospital at which she was a patient and the employee who attended to her, for negligent disclosure of her personal health information to a third-party. Neither the Health Insurance Portability and Accountability Act (HIPAA) nor Vermont law provide for a private cause of action for damages arising from a medical provider’s disclosure of information obtained during treatment. Our colleagues in the Privacy, Data and Cybersecurity practice group offer details on the decision. You can read more about it here.

Three Tips to Investigate Harassment Complaints When You Are Not “the Employer”

The healthcare setting involves many potential “joint employer” landmines, as hospitals often have outside vendors providing services (i.e. food service, laundry service) inside their facilities. Employment and labor law is in flux regarding the “joint employer” standard. See (NLRB’s Proposed Rule Adopts Pre-Browning-Ferris Joint-Employer Standard); (Department of Labor Proposes Updated Interpretation of Joint Employer Standard Under the FLSA). The proposed rules published by the National Labor Relations Board and the U.S. Department of Labor indicate it may be more difficult, going forward, for employees and former employees to establish the existence of a joint employer relationship between a hospital and its vendors, but the rules are not final yet. Employers are in a challenging situation when it comes to investigating allegations of harassment that occur in a potential joint employer relationship. If your employee reports that a vendor’s employee has engaged in inappropriate behavior at work, you should consider these key questions as you investigate the report:

1. Who Is Acting Like the Employer? Examine how the working relationship has been managed–who is supervising and controlling the alleged harasser’s conditions of employment?
2. How Is the Investigation Documented? Documentation should clearly state that you employ the complaining party, and not the alleged harasser. Watch for sloppy references now that could lead to liability later.
3. Who Is the Decision-maker? The joint employer tests focus on who has the authority to discipline or terminate the employee. In order to mitigate the risk of a joint employer finding, when discipline is appropriate, the decision-maker should be the actual employer i.e. the vendor, not the hospital.

For more information about how to manage joint employer issues and workplace investigations, contact your Jackson Lewis attorney, or a member of the Healthcare team.

New York City Ban on Pre-Employment Drug Testing Won’t Apply to (most) Healthcare Workers

On May 10, 2019, a bill amending New York City’s administrative code related to prospective employee drug-testing officially became law for New York City employers. While the law does not go into effect until May 10, 2020, it is the first of its kind in the nation. The law prohibits employers from requiring applicants to submit to pre-employment drug testing for the presence of marijuana or THC. Once the law takes effect, employers in New York City will not be permitted to conduct pre-hire marijuana testing as a condition of employment, but employers will still be allowed to screen for other illicit substances such as opiates, amphetamines, etc.

The new law, however, contains an important exception for certain healthcare workers. Specifically, the law does not apply to any individuals applying for work in any position requiring the supervision or care of children, medical patients, or vulnerable persons as defined by Section 488(15) of the New York Social Services Law. The law further excludes employees in positions that “significantly impact the health or safety of employees or members of the public.”

These exceptions come as welcome news for hospitals, nursing homes, and other healthcare providers. While New York City is expected to issue rules for implementing the new law and further guidance on these and other exceptions, the breadth of these exceptions remains uncertain. For healthcare providers, an important question is whether the exceptions apply to non-medical staff working in medical facilities, such as maintenance employees.

The new law will not affect employers’ right to discipline employees reporting to work under the influence. However, while the plain language of the new law applies only to “prospective employees,” it is not yet clear whether the new law will have any impact on an employer’s right to test current employees for the presence of marijuana.

For now, employers will have to wait until New York City provides further guidance. Luckily, the law does not go into effect until next year, so employers will have ample time to implement new pre-hiring procedures. For more information about New York City’s ban on pre-employment drug testing, read our article “New York City Employers Are Barred from Testing Job Applicants for Marijuana Use,” contact your Jackson Lewis attorney, or a member of the Healthcare team.

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