Yesterday, the U.S. Supreme Court denied a request to enjoin New York State from enforcing its regulation requiring COVID-19 vaccination for healthcare workers despite the fact that the regulation did not allow for religious accommodations. The Court did not issue any written opinion or rationale but was accompanied by a 14-page dissent by Justice Gorsuch.

Meanwhile, also yesterday, the Eighth Circuit Court of Appeals denied the federal government’s motion to stay a preliminary injunction that precludes the Centers for Medicare and Medicaid Services (“CMS”) from enforcing its COVID-19 Vaccine Mandate in the ten states at issue in that lawsuit. The federal government sought to have the preliminary injunction stayed but the Eighth Circuit Court of Appeals rejected that request without explanation. The nationwide injunction precluding CMS from implementing its COVID-19 vaccination mandate is similarly on appeal but in the Fifth Circuit Court of Appeals.

Healthcare employers should continue to follow these evolving legal issues to ensure compliance in this ever-changing landscape.

Physicians often have a legal obligation to report conduct which they believe may constitute negligence, or demonstrate an individual’s inability to practice medicine competently, safely, or within the bounds of the relevant code of medical ethics. Because of the nature of the information required to be reported, it is not unusual for the physician (or other medical provider) who is the subject of the report to contend the information is inaccurate or defamatory. In a decision earlier this year, the Iowa Supreme Court ruled that a hospital did not defame a surgeon when it reported suspected physician misconduct to the state licensing board or to the National Practitioner Data Bank (NPDB). The decision, Andrew v. Hamilton Cnty. Pub. Hosp., 960 N.W.2d 481 (Iowa 2021), highlights how hospitals and individuals can avoid defamation claims when engaging in mandatory reporting.

In Iowa, licensed physicians are legally required to notify the Iowa Board of Medicine if they know of another physician’s “careless acts or omissions that demonstrate a licensee’s inability to practice medicine competently, safely, or within the bounds of medical ethics.” Iowa Admin. Code r. 653-22.2(l).

Here, Hamilton County’s public hospital terminated Dr. Mark Andrew’s employment in 2006 pursuant to a “cause” provision in his employment agreement. The decision to end employment was made after the hospital conducted an internal investigation prompted by an inquiry from a pharmacy expressing concerns about large quantities of narcotics Dr. Andrew prescribed for one patient, and the frequency of refills to that same patient.

An outside physician, who served as a consultant for the hospital on various personnel issues and assisted with its peer review process, filed a report with the Iowa Board of Medicine at the conclusion of the hospital’s internal investigation. The report recited facts surrounding the hospital’s investigation, including a suggestion that the state board investigate Dr. Andrew’s surgical competency. Dr. Andrew sued the hospital for defamation.

The Iowa Supreme Court determined the consulting physician’s statements were opinions that did not amount to a defamation claim, especially since Dr. Andrew did not allege that the report was false. In reaching this decision, the Court noted “[p]rotecting physicians’ ability to identify the concerns raised by specific information they are required to report is a significant public good that supports precluding a defamation action here.” While the hospital also claimed they were not otherwise liable for defamation because the statements were made to the NPDB and otherwise entitled a privilege typically afforded when making statements as part of official proceedings, the Iowa Supreme Court declined to rule on this issue.

Many hospitals and physicians are legally required to report suspected physician misconduct to state licensing officials or to the NPDB. Where appropriate, the reporting party should express concerns in the form of opinions that reflect specific, undisputed facts aimed at protecting the public. All reports should be accurate, factual, and void of any conclusory accusations in order to best avoid liability for a defamation claim.

(Law clerk Ariel Rothfield contributed significantly to this article.)

The U.S. District Court for the Western District of Louisiana has granted a preliminary injunction enjoining the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide. Louisiana et al. v. Becerra et al., No. 3:12-CV-03970 (W.D. La. Nov. 30, 2021). This injunction takes immediate effect. The Louisiana federal court carved out of its order the 10 states that previously received a preliminary injunction from the federal court in the Eastern District of Missouri. Read more.

Ten states filed a lawsuit challenging CMS’ Interim Final Rule (IFR) requiring COVID-19 vaccination amongst a wide range of staff working at Medicare- and Medicaid-certified providers and suppliers. The U.S. District Court for the Eastern District of Missouri granted the states’ request for a preliminary injunction, pending a trial on the merits of the claims, but limited the injunction to only the 10 states at issue. With the first CMS compliance date (December 5) fast approaching, healthcare employers, and other indirectly affected employers, are scrambling to navigate this patchwork of rules. Learn more.

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:

  1. Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers);
  2. Long-term care facilities;
  3. Intermediate care facilities;
  4. Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities;
  5. Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and opioid treatment programs);
  6. 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.