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Healthcare Employment Counsel

Addressing issues at the intersection of employment law and healthcare

Mandatory Flu Vaccinations – Healthcare Employers Stuck in the Middle

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By Ben Huggett 

As in so many other situations, healthcare employers are faced with a number of differing and potentially conflicting government directives and public policy pressures when it comes to mandatory vaccination programs for their employees. On February 8, 2012, the Department of Health and Human Services’ (HHS) National Vaccine Advisory Committee (NVAC) voted 12-2 to recommend that healthcare facilities failing to achieve a 90% flu-vaccination rate using voluntary approaches “strongly consider a policy of employer requirement for influenza vaccination.” On the other hand, in its position statement to the NVAC, the Occupational Safety and Health Administration (OSHA) stated it “does not believe that there is sufficient evidence to meet the bar necessary to support mandatory vaccination programs.” The Equal Employment Opportunity Commission (EEOC) has also sounded a warning against mandatory flu vaccinations: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” And, as we have previously discussed on this site, nurses unions have actively opposed mandatory flu vaccinations. Continue Reading

Posted in DOL and Other Government Agencies, Hospitals, Workplace Safety

Another Federal Court Blasts Overbroad Complaint, Dismisses FLSA Collective Action Against Hospital

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By Michele Malloy

In yet another example of courts’ increasing hostility toward broad boilerplate complaints in Fair Labor Standards Act (FLSA) collective actions, in Sampson v. Medisys Health Network a Magistrate Judge in the Eastern District of New York recommended dismissal with prejudice of an FLSA collective action. The court found that despite the length of the complaint – 35 pages with 202 paragraphs – the plaintiffs failed to allege “the most, basic, relevant, facts” necessary to proceed with their case, which alleged that the hospitals’ pay policies relating to meal period deductions, pre- and post-shift work, and unpaid training time violated the FLSA. 

In this case, as in a number of  recent FLSA collective actions against hospitals, the court concluded that the plaintiffs failed to plead sufficient facts to show that Medisys and the four other hospitals named as defendants were their employers within the meaning of the FLSA. Examining the twice-amended complaint, the court noted the lack of any allegations that Medisys or any of the other hospitals had any role in hiring, firing, supervising or paying the plaintiffs.  Continue Reading

Posted in Class Actions, Wage & Hour

Hospital Pays $3.5 Million to Settle Whistleblower Claims of Improper Physician Recruitment

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By Bob Drake

The Department of Justice announced  a $3.5 million settlement of a whistleblower case, even though the government’s investigation found no evidence of criminal violations. The whistleblower’s complaint alleged that Cayuga Medical Center in Ithaca, New York entered into improper physician recruitment agreements in violation of the federal False Claims Act (FCA). The settlement is to be divided among the federal government, the State of New York and the individual whistleblower. 

The federal Stark Law prohibits a physician from referring patients to a hospital if the physician has a financial relationship with the hospital, unless a specific exception to the prohibition applies. The Stark Law also prohibits a hospital from billing Medicare for prohibited referrals. Among other things, the Stark Law applies to recruitment agreements between physicians and hospitals. Federal regulations and related guidelines under the Stark Law allow a hospital to pay only certain expenses of the physicians it recruits to the area. In this case, a plastic surgeon alleged that the medical center paid expenses that were prohibited by Stark Law regulations and guidelines and therefore  the medical center violated the FCA by submitting false claims to the federal government when it certified, in its bills to Medicare and Medicaid, that it was “complying with federal laws and regulations.” The whistleblower’s complaint also alleged that these actions violated New York State’s False Claims Act. Continue Reading

Posted in Hospitals, Whistleblowers and Retaliation

Virginia Federal Court Finds Hospital Not Required to Accommodate ER Nurse’s Lifting Restrictions

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By Barbara Hoey

A  Virginia district court has held, once again, that a hospital does not have to accommodate a nurse whose disability causes lifting restrictions so extensive that, in effect, she cannot perform the essential functions of her position. The plaintiff in Wulff v. Sentara Healthcare, Inc. was a nurse clinician in the hospital’s emergency department. In September 2009, she presented the hospital with a doctor’s note stating that she could not lift more than ten pounds.  The hospital accommodated that restriction until March of 2010. Then the nurse presented a new form with the following restrictions: “no lifting 0-20 pounds,” no pushing or pulling, no stretching above shoulder level. At that time, her supervisor stated that they could not accommodate those restrictions. They also told her that if the restrictions were lifted or modified, she could return to work. The nurse’s doctor later lifted the restrictions and she was offered her job back, but she never came back to the job. Instead, she sued under the Americans with Disabilities Act (ADA), claiming the hospital failed to accommodate her disability, and discriminatorily discharged and retaliated against her for seeking accommodation. Continue Reading

Posted in ADA

Another One-Day Strike Against Kaiser Permanente in California

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By Carie A. Torrence

On January 31, 2012, the National Union of Healthcare Workers (NUHW) in California engaged in a state-wide, one-day strike against Kaiser Permanente, protesting staffing deficiencies and proposed reductions in health care and retirement benefits. The NUHW represents licensed social workers, psychologists, emergency mental health workers and family counselors. Kaiser and the NUHW have been involved in contract negotiations for more than a year.

The California Nurses Association (CNA), which represents 17,000 registered nurses, and the Stationary Engineers Local 39, which represents 650 employees, joined the strike. Kaiser reported that 66 percent of nurses reported to work as scheduled. Kaiser also hired replacement workers to ensure that patient care needs were met.  Continue Reading

Posted in Labor Relations

University of Illinois Medical Center Nurses Ratify Contract with Staffing Language and Bonus Program

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By Carie A. Torrence

Nurses at the University of Illinois Medical Center (the “Medical Center”) overwhelmingly voted to ratify a new three-year contract covering more than 1,000 nurses represented by the Illinois Nurses Association (the “Union”). The contract includes enhanced staffing language, a bonus program and wage increases of up to 17.85% over the three-year contract term.

As to staffing, the new contract provides that, except in emergency situations, charge nurses working the day and evening shifts in several units, including intensive care units, will no longer have direct care patient assignments.  This change will result in the addition of 20 to 25 new nurses and will allow charge nurses to focus on patient flow and provide assistance and leadership to the nurses and other employees in the unit.  The Union’s attorney noted that the elimination of the patient care assignments was the first such language in the State of Illinois. Continue Reading

Posted in Labor Relations, Nurse-Patient Staffing Ratios

DOL Targets Home Health Care Provider for Payment of Flat Daily Rates

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By Breanne Sheetz

In one of many recent Department of Labor (DOL) enforcement actions against the home health care industry, a federal court entered a consent decree ordering Aspen Nursing Services Inc. to pay $210,000 in back pay and liquidated damages to 22 employees. Aspen provides home health aides for individuals with disabilities in Kentucky and Ohio. 

Following an investigation by its Wage and Hour Division (WHD), the DOL filed an FLSA lawsuit against Aspen alleging that the employees, who were in-home caregivers, did not receive the federal minimum wage for every hour worked and that they did not receive overtime when they worked more than 40 hours in a week. The DOL also alleged that Aspen failed to keep accurate records.  Continue Reading

Posted in DOL and Other Government Agencies, Wage & Hour

$2 Million Settlement in Race Discrimination Class Action Against Hospital by Job Applicants

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By Ryan Eddings

Last week, in Meeks v. Allen Memorial Hospital, a state court in Iowa approved a $2 million settlement in a race discrimination class action against an Iowa hospital. This case is yet another reminder that health care employers must consider both federal and state laws when assessing their employment practices.

The named plaintiff in the case, Robyn Meeks, is an African-American nurse who had previously worked for Allen Memorial Hospital until she resigned in 2003 after a failed mediation in a race discrimination case she filed with the Equal Employment Opportunity Commission (EEOC) against the hospital. Continue Reading

Posted in Class Actions, Discrimination, Hospitals

NLRB Ruling Puts Arbitration Agreements with Class Action Waivers in Question

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By Terrence Murphy

In D.R. Horton, Inc., the National Labor Relations Board (“Board”) last week ruled that arbitration agreements imposed as a condition of employment prohibiting employees from filing class action claims violate the National Labor Relations Act (“NLRA”). It found that filing a class or collective action claim is protected activity under Section 7 of the NLRA, which says employees have the right to engage in concerted activities for “mutual aid and protection,” and that an arbitration agreement employees are required to sign as a condition of employment that waives an employee’s right to bring a class action in both arbitration and court violates the employee’s Section 7 rights.

For health care employers that were looking to last year’s Supreme Court ruling in AT&T Mobility v. Concepcion as unchallenged support for mandatory employment arbitration agreements with class action waivers, this NLRB ruling is a step the other way. It remains to be seen how this will play out.  Hospital employers may yet find that arbitration agreements required as a condition of employment are a pathway to avoiding exposure in misclassification and off-the-clock overtime cases, and other potential class action claims in heavily-populated job titles that include individuals covered as “employees” under the NLRA, but likely will have to wait to see if the Federal Arbitration Act trumps the NLRA or vice–versa.

In the meantime, this will be a year in which effectiveness and status of workplace arbitration agreements, particularly as to class issues, will be in flux. For more information, see Littler’s ASAP on this recent case.

Posted in Labor Relations

Accommodation for Healthcare Employees Objecting to Abortion-Related Procedures

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By Alex Frondorf and Rob Wolff

Healthcare employees who object to providing patient care for women seeking an abortion have long presented a thorny issue for healthcare employers. A recent settlement in the United States District Court for the District of New Jersey is a reminder that this issue continues to raise tricky questions. Nonetheless, a careful employer can successfully navigate these issues and avoid common pit-falls.

Hospitals that receive federal funds are prohibited from requiring employees to participate in abortions if it “would be contrary to [their] religious beliefs or moral convictions.” 42 U.S.C. § 300a-7. In Danquah v. University of Medicine & Dentistry of New Jersey (UMDNJ), a group of nurses sought to enforce this prohibition through an injunction after UMDNJ changed its policies in September 2011, requiring all nurses to assist in termination-of-pregnancy procedures. The parties entered into a settlement that allows the objecting nurses to refrain from participating in non-emergency care of patients seeking or obtaining an abortion. While all hospitals and medical facilities that receive federal funds through the Public Health Service Act, the Community Mental Health Services Act, or the Developmental Disabilities Services and Facility Act should be mindful of this prohibition, medical providers that do not receive federal funds should also beware of potential pit-falls when an employee objects to participating in abortion-related medical care.

Posted in Discrimination