As summer winds down, the challenges impacting health care employers in 2019 continue to heat up. These challenges include ongoing developments regarding marijuana legalization, employee resistance to vaccination mandates, workplace violence prevention, state health insurance mandates, and more. In this issue of Take 5, we address these key developments and provide recommendations for action.
Violence in the Health Care Workplace
Health care employers must heed the growing concern in their workforces about the risk of job-related violence. The Occupational Safety and Health Administration (“OSHA”) has gathered statistics showing that health care workers are subjected to a high rate of workplace violence. See Guidelines for Preventing Workplace Violence for Healthcare and Social Services Workers (“Guidelines”) at pp. 2-3.
While extensive, the Guidelines are, as OSHA recognizes, not a standard or regulation. However, in the preamble to the Guidelines, OSHA points out that the Occupational Safety and Health Act’s (“OSH Act’s”) general duty clause, Section 5(a)(1), “requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”
Recently, the Occupational Safety and Health Review Commission (“Commission”) found that a social services provider had violated the general duty clause after a mentally ill client fatally stabbed one of its employees. Sec. of Labor v. Integra Health Management, Inc., OSH RC Docket No. 13-1124 (March 2019). The Commission rejected the provider’s argument that the unpredictable violent conduct of a third party is not a workplace hazard under the OSH Act, reasoning that “the hazard arises from the employment itself.”
Health care employers should also be aware that unions representing health care workers are increasingly raising the workplace violence issue in negotiations and are seeking creation of, and active participation in, workplace safety committees. Health care employers with non-union workforces should be alert to the possibility that serious incidents of workplace violence could become a rallying cry to support union organizing campaigns, especially in the absence of effective policies addressing this issue.
Health care facilities should adopt “feasible and effective” means to reduce the chances of violent assaults in their facilities. This should be done with a multidisciplinary approach that includes security, human resources, appropriate medical professionals, and risk management. The goal is to develop, maintain, and enforce policies and procedures:
- prohibiting violence/harassment in the workplace;
- providing systems for employees to promptly report incidents of violence and threats of violence while protecting patient confidentiality under the Health Insurance Portability and Accountability Act of 1996 (or “HIPAA”);
- requiring immediate investigation of all incidents or threats of violence reported, and taking appropriate corrective action;
- determining the potential hazards in the individual workplace, and implementing appropriate changes; and
reviewing workplace violence incidents with the goal of ascertaining contributing factors, and adjusting policies and procedures to minimize similar incidents in the future.
Will the Growing Acceptance of Cannabis Send Drug-Screening Policies Up in Smoke?
The puns are endless, and so are the legislative efforts to legalize various forms of marijuana. Because of the wave of marijuana legalization that has swept the country over the last few years, there has never been a better time for organizations to evaluate their drug-screening policies and their practices for addressing employees who use marijuana. In 2019 alone, Illinois legalized adult use (recreational) marijuana, Hawaii and New York decriminalized the possession of small amounts of marijuana, Nevada and New York City passed laws prohibiting pre-employment drug screening for marijuana, and New Jersey amended its medical marijuana law to provide broad protections to registered medical cannabis users (while the New Jersey Supreme Court has taken up a case to decide whether New Jersey employers must accommodate lawful medical marijuana use). We expect this legalization trend to lead to increased use of marijuana, and thus more positive drug tests. Employers should take the time now to create a company-wide strategy to handle increased use by employees and be prepared to accommodate any medical use. We advise employers to review current drug-screening policies, prepare protocols to respond to positive drug tests, and train managers and human resources staff to identify possible impairment and to appropriately implement the new protocols.
Employer Reporting Gets More Complex as Additional States Adopt Health Insurance Mandates
On July 2, 2019, and July 5, 2019, California and Rhode Island, respectively, each adopted an individual health insurance mandate. The laws require residents in those states, beginning on January 1, 2020, to have qualified health insurance coverage or owe a penalty. Beginning in 2021, employers will have reporting obligations under those laws.
Massachusetts, New Jersey, Vermont, and the District of Columbia already have individual health insurance mandates. Other states, including Connecticut, Hawaii, Minnesota, and Washington, are considering such mandates.
The Tax Cuts and Jobs Act of 2017 (“TCJA”) effectively repealed the federal individual mandate. While a ruling that the post-TCJA Affordable Care Act (“ACA”) is unconstitutional in its entirety is being challenged, the ACA remains enforceable law. Employers may be able to leverage existing ACA-required forms, unless and until they are changed, to satisfy their state reporting obligations. New Jersey and the District have confirmed their intent to rely on the federal forms for now.
However, employers will also need to navigate various state reporting, which may have different forms, deadlines, and processes. Employers operating outside of states with mandates will need to determine if they have reporting obligations for employees residing in states with mandates. Employers should work with legal counsel and their vendors to assess their obligations and prepare for new state reporting.
Mandatory Vaccinations, Health Care Employees, and the ADA
Health care providers want assurance that their employees neither pass on infections to patients nor become infected from them. These dual demands raise the issue of immunity testing and vaccinations for staff. Vaccinations have been a major public health and general public topic based on recent measles outbreaks. A health care provider has to address the fact that some employees may resist vaccinations on disability, religious, or other grounds. In this context, the court in Hustvet v. Allina Health Systems, 910 F.3d 399 (8th Cir. 2018), recently addressed whether an employee, terminated for refusing the measles, mumps, and rubella (“MMR”) vaccine, could prevail on an American with Disabilities Act (“ADA”) claim. Hustvet, an individual living skills specialist, refused the MMR vaccination, claiming allergies and chemical sensitivities. She further contended that her employer’s mandatory test for immunity to infectious diseases violated the ADA’s general ban on medical exams. Her employer, as recommended by the Centers for Disease Control, tested the class of employees who might come in contact with communicable diseases in their patient-facing work. The court’s decision noted that the ADA does not prohibit medical exams that are job-related and a business necessity, which the court found was true here because the employee would work with patients with communicable diseases or weak immune systems.
The key takeaway for health care employers is to determine, before requiring vaccinations and testing for immunity to infectious diseases, that the requirements are job-related and a business necessity, and thus permissible under the ADA.
General Counsel: The Strategic Legal Counsel
The General Counsel (“GC”) of today is a nimble executive, an issue-spotting and strategic intellectual who sees beyond silos and can speak to company-wide initiatives with a broad problem-solving perspective. GCs are a key member of the ever-burdened executive team, charged with the duty of providing operational and strategic leadership in a constantly changing environment. Effective GCs understand their organization’s business and identify pitfalls and the regulatory landscape governing the organization.
The GC’s command of regulatory and business considerations assists with the organization’s success and smooths the transition into new services or business models. Furthermore, the GC as an advisor is well appreciated by CEOs, CFOs, and COOs, who see the GC as a sounding board to safely “beta test” ideas, identify risks, and assess strategic changes that could have wide-ranging legal or business implications.
I have witnessed the importance of the GC advisor in my years advising in-house and in my current role, serving as an “outside fractional” GC for my clients who are not yet in a position to hire a full-time, seasoned GC. In-house legal teams are required to stay abreast of regulatory updates and are expected to answer complex legal questions on short notice. However, in practice, it can be difficult for an in-house team to be an expert in everything or to have experience with some of the more complex transformations facing its company. This advisory role is critical to emerging companies and can also provide key support to overly leveraged or entry-level in-house legal teams. Outside GC advisors can help support and provide strategic advice to the entire leadership team, effectively adding another executive to manage the workload without the expense of a full-time GC/CLO.
The accessible GC (whether in-house or an outside advisor) is key to a company’s forward momentum. The importance of open and frequent communication between the C-suite and the GC, especially in health care and other highly regulated industries, cannot be overstated. Whether by contract or regulation, the business rules of engagement change frequently and can drastically alter the operational framework of an organization. Inclusion of the GC at the early stages of decisions concerning market growth, business innovation, employment, and board communication will lead to an informed leadership team that takes the right path the first time. As a result, the GC’s strategic guidance should be considered a necessary component of a strong leadership team.
*Ebunola Aniyikaiye, an Associate in the Washington, DC, office of Epstein Becker Green, also contributed to the preparation of this article.