In an unpublished decision, the National Labor Relations Board (NLRB) has denied an acute- care hospital’s request to stay a representation election based on the COVID-19 pandemic. Crozer-Chester Medical Center, Case 04-RC-257107 (Apr. 23, 2020). The union’s representation petition was filed on February 28, 2020. The union, which did not represent any of the other employees in the hospital, sought to represent separate units of all unrepresented technical and professional employees employed at the hospital. Our colleagues in the Labor and Preventive Practices practice group explains the decision. Read more here.
New Jersey Governor Phil Murphy has signed a bill requiring hospitals licensed under New Jersey Statutes Title 26 to report demographic data on COVID-19 cases. To the extent they have not already done so, hospitals affected by the new law should initiate data collection protocols on the demographics of COVID-19 patients by including age, ethnicity, gender, and race. Read more.
The New Jersey Legislature has passed a bill requiring hospitals licensed under New Jersey Statutes Title 26 to report COVID-19-related demographic data (e.g., age, ethnicity, gender, and race) to the New Jersey Department of Health (DOH). Previously, the Governor required specific healthcare facilities to report personal protective equipment inventory (see our article, New Jersey Authorizes Director of Emergency Management to Commandeer Personal Services, Real Property) and capacity information (see our article, New Jersey: Designated ‘Health Care Facilities’ to Submit Daily Reports on Capacity, Supplies) to allocate resources to respond to the COVID-19 crisis. The new law apparently would require demographic reports to help gauge the response to the pandemic. Read more.
When can employees who may have been exposed to COVID-19 return to work? Guidance from the Centers for Disease Control and Prevention (CDC) advises that “critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” This guidance applies only to critical infrastructure workers (as defined in the Department of Homeland Security CISA guidance).
The CDC explains that potential exposure means “being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19.” Read more.
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.