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The Modern Workplace

The Modern Workplace

Posts in Health Care.

On June 10, 2021, OSHA released a long-awaited new Emergency Temporary Standard (“ETS”), which establishes new mandatory workplace safety requirements for employers providing healthcare services or healthcare support services. The ETS aims to protect employees from exposure to COVID-19 in the workplace by requiring the following:

  • a COVID-19 plan based on an assessment of COVID-19 hazards;
  • patient screening;
  • transmission-based precautions;
  • continued personal protective equipment (PPE) usage;
  • social distancing while indoors;
  • proper cleaning and disinfecting ...
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With two COVID-19 vaccines already authorized for emergency use in the United States and more likely forthcoming soon, employers are asking whether they can and should require employees to get vaccinated. This alert identifies some of the major issues that employers are likely to face when rolling out policies related to vaccinations. 
Can Employers Require Employees to Get Vaccinated?

Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does ...
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With COVID-19 cases surging, employers should take the time to review the federal Occupational Safety & Health Administrations recent guidance document, which was generated based on a review of data from citations issued, many of which were the result of complaints, referrals and fatalities in industries such as hospitals and healthcare, nursing homes and long-term care facilities, and meat/poultry processing plants. OSHA News Release (11/7/2020).

The guidance document identifies the standards that are most frequently cited in coronavirus-related OSHA inspections and ...
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Posted in Health Care

On December 14, 2018, a federal judge for the U.S. District Court for the Northern District of Texas ruled that the Affordable Care Act is invalid. The case before the Court was brought by 20 states, including Texas. The plaintiffs argued that the ACAs individual coverage mandate was no longer constitutional, because the Tax Cuts and Jobs Act of 2017 removed the tax penalty associated with being uninsured. The plaintiffs claimed that, as a result, the individual mandate could no longer be upheld as a proper exercise of Congress taxing power. In addition, the plaintiffs argued that the ...
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Last week a federal judge in Washington, D.C. directed the Equal Employment Opportunity Commission to revisit its regulations governing employee wellness programs but did not vacate the regulations.  The court noted that striking down the regulations until they could be revised may have significant disruptive consequences and it assumed that the EEOC could address the failings it identified in short order.  Nonetheless, the decision not to stay implementation or vacate the regulations creates confusion for employer wellness programs.

The EEOCs wellness regulations took ...

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Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new presidents first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
 
Department of Labor Developments
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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We have previously blogged (here and here) about the expanding risks of joint employer liability under various employment laws, most prominently the National Labor Relations Act and the Fair Labor Standards Act. Recent developments underline just how prominent these risks are becoming for many businesses, including traditional employers, staffing and temp agencies, and franchised companies.
The U.S. Department of Labors (DOL) Wage and Hour Division recently announced it has obtained a federal court consent judgment and order of $1.4 million jointly against United Plastics ...
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In a recent ruling, the White case, the Minnesota Court of Appeals held that an employee who has been terminated for misconduct caused by mental illness, such as depression, may nevertheless be eligible for Minnesota unemployment benefits.   Notably, the Court also ruled that an unemployment judge has an affirmative duty to help such a claimant present relevant evidence if the claimant is unrepresented by counsel.
 

The Minnesota unemployment law generally provides that employees terminated through no fault of their own are entitled to benefits.  Individuals who voluntarily quit ...

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The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

  • Are employees entitled to time-and-a-half pay for holidays worked?  No unless time worked on a holiday includes overtime ...
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Nearly every employer has dealt with a difficult employee, a tense termination, or a particularly serious workplace conflict. In the wake of a tragic event like the recent Roanoke news station shooting, many employers are looking for better ways to handle employee conflicts and protect employees. According to OSHA statistics, each year nearly two million Americans report being victims of workplace violence (which includes physical violence, threats, harassment, and abuse). While no policy, procedure, or safety measure can guarantee security, employer policies and ...
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The U.S. Supreme Court announced its much awaited decision today in the case of King v. Burwell. In its ruling, the Court upheld a key provision in the Affordable Care Act (ACA) that provides government subsidies for health care insurance for all Americans who qualify, regardless of whether the coverage is obtained through a federal or state run health care exchange. The Courts decision affirmed an earlier decision in the case by the U.S. Court of Appeals for the Fourth Circuit and endorsed the view of the Obama administration that subsidies should be available for all lower and ...
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As distribution of medical marijuana is set to begin in Minnesota on July 1, 2015, a new ruling from the Colorado Supreme Court further clouds the air for employers attempting to handle the employment ramifications of marijuana use in the twenty-four jurisdictions now permitting marijuana use.
 

On June 15, 2015, the Colorado Supreme Court held that an employer was permitted to discharge an employee due to his licensed medical use of marijuana at home during nonworking hours. In the case, Coats v. Dish Network, the employee had worked for the employer for three years before he tested ...

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In an update to a previous post, the highly anticipated United States Supreme Court decision in UPS v. Young was announced last week. In a 6-3 decision, the Court vacated rulings of the district court and the Fourth Circuit Court of Appeals, both having issued summary judgment in favor of UPS. The Court remanded the decision to determine whether the policies of UPS were legitimate and nondiscriminatory. The Court stated the Fourth Circuit had not yet considered the combined effects of UPS' other accommodation policies or the strength of UPS' justifications for the ...
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2014 has been a big year for pregnancy protections in employment law. In May, Minnesota enacted a new pregnancy accommodation law, and in July the federal Equal Employment Opportunity Commission (EEOC) issued an updated pregnancy discrimination guidance document. Developments in this area are set to continue in the upcoming year. Last week, the U.S. Supreme Court heard oral arguments in the Young  v. UPS case a highly watched case involving an employers potential duty to accommodate pregnant workers under the federal Pregnancy Discrimination Act (PDA). It is well-settled ...
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On Monday a federal jury in California awarded $185 million to a former AutoZone store manager who alleged that throughout her employment she had been discriminated against, demoted, and ultimately terminated because of her gender and in retaliation for complaining about discrimination. Rosario Juarez worked at an AutoZone retail store in San Diego from 2000 to 2008. Although she received promotions and advanced in positions within the store, these allegedly occurred only after she raised complaints about disparate treatment of women employees. 

After Juarez informed the ...

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As we mentioned in a post last month, the EEOC has a clear agenda to target employer wellness programs. In our earlier post, we discussed two lawsuits against employers in Wisconsin. Now, the EEOC has set its sights on one of our local employers - Honeywell. Last week, the EEOC sued Honeywell over a wellness program that involves employees and their spouses being asked to participate in biometric screening and a determination of body mass index. According to the EEOCs complaint, employees who don't participate along with their spouses are assessed a surcharge of up to $500 on ...
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I love wellness programs. I am a sucker for discounts of any sort, and I especially like the idea of rewarding healthy behavior. My bicycle has a tag that logs my work commute when I pass the electronic stations throughout the Twin Cities, and I smile every time I hear its gratifying beep.

So, I understand why employers like wellness programs. What's not to like about incentivizing healthy lifestyle changes while also lowering health insurance costs, decreasing absenteeism, and increasing productivity? As is so often the case, however, the devil is in the details.  If wellness ...

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Dust off your handbooks and rethink your employment policies the EEOC has just announced some significant changes in how it is going to investigate and litigate pregnancy discrimination claims.

In its first comprehensive pregnancy guidance update in thirty years, the EEOC issued new pregnancy discrimination guidance in mid-July. The updated guidance is effective immediately, superseding the prior guidance and addressing the application of many laws passed since 1983 - including the 1990 Americans with Disabilities Act (ADA) and the 1993 Family Medical Leave Act (FMLA) - to ...

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Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...

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Employers are continuing to feel the impact of and to respond to the federal Affordable Care Act. Just today, it was reported that Target Corporation will be no longer offer health insurance benefits to its part-time employees. The company explained that the change was related to the new health care landscape, low enrollment of part-time workers in its health benefits, and the ability of part-time workers to obtain insurance through health care exchanges created under the ACA.   
In other ACA news, the Internal Revenue Service has announced that it will delay enforcement of the ACAs ...
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Social media and technology seem to be doing more harm than good in the workplace this week. A new study suggests that some employers may be using Facebook profiles to discriminate against job applicants based on legally protected information. Other employers have expressed concern about employees' overuse of social medial during the work day. The challenges also extend beyond the workplace walls. For example, employees who are non-exempt under wage and hour laws can bring lawsuits for minimum wage or overtime compensation if not properly paid for work done outside of the ...
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New federal and state laws are continuing to impact our relationship with technology and online resources.  This was recently illustrated by the roll out of web-based health insurance exchanges under the federal Patient Protection and Affordable Care Act. The roll out did not go smoothly, and the news was filled with stories of technological glitches and errors that, to some extent, took center stage over the continued partisan split over the substance of the law. At the state level, California passed a law that gives people under the age of eighteen the right to have personal ...

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 Health Exchange Notice Due to Employees by October 1

We all breathed a huge sigh of relief when the Obama Administration announced that the employer mandate under health care reform would be postponed until 2015.  (Although we cant help reminding employers that they need to be working toward compliance even now) Lately weve been hearing from employers wondering if they still have to provide exchange notices. Yes! The notice is still required, despite the delay in the employer mandate. Heres a refresher on what that entails.

What is the exchange notice?

The purpose of the notice ...
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Last week, I presented an employment law update at my firms annual Health Law Institute.  While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers.  I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments.   I thought the readers of this blog might appreciate a list too.  So here are some important employment law compliance to-do items:

     1.  Post the new FMLA poster, update your FMLA ...

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The Obama Administration announced on the afternoon of July 2 that it would not penalize employers that do not provide health insurance in 2014. The Affordable Care Act initially required that all employers with more than 50 employees provide coverage to workers or pay significant fines, beginning in 2014. The Treasury Department now says that it will postpone its implementation until 2015, largely due to employers' concerns. Stay tuned for more specifics as the Treasury Department clarifies this and as employers figure out what this means for them going forward.

For an E-Benefits ...

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 The Patient Protection and Affordable Care Act (PPACA) is now more than 3 years old and, like any 3-year-old, is beginning to assert itself in new and often clumsy ways. While the stated purpose of the PPACA is to broaden the pool of insured individuals, employers in many sectors are seeking ways to keep employees ineligible for health-care coverage. Institutions of higher education are the latest employers in the news for seeking ways to avoid having their adjunct faculty covered by health insurance. 

A recent article in The Chronicle of Higher Education highlights the plight of ...
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The Minnesota Legislature is in full swing, and as always, employers will want to monitor the proposals under consideration at the Capitol. Bills that may impact employers include:

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Usually, come year-end, you're hearing all kinds of suggestions about how to delay income until next year, so as to reduce the tax burden this year. This year is different. Yes, as the fiscal cliff talk reminds us daily income tax rates for those with high incomes may go up. But there's more, and its not dependent on what Congress does about the fiscal cliff or the deficit .... Starting in 2013, highly compensated employees have to pay an additional Medicare tax.
Wages over $200,000 will be subject to an additional 0.9% Medicare tax. In addition, unearned income (such as ...
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Three states held votes earlier this month about legalization of the recreational use of marijuana. In two of the three, Washington and Colorado, the measures were approved.  Oregon voters defeated the initiative in their state.  
What does this mean for employers doing business in states where recreational marijuana use is now legal? Its a little too early to tell, it seems, although it appears that at least in Washington, employers can continue to enforce their drug use and drug testing polices as before, at least for the time being.  Our Washington partner in the Employment Law ...
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Posted in Health Care
The kids are back in school, the crispness of fall is in the air, and thoughts of HR professionals are turning to what else?  Open enrollment!  One of this years fun challenges is the Summary of Benefits and Coverage, or SBC.  
Does every health plan have to have an SBC?  All group health plans that aren't excepted benefits under HIPAA have to provide it. Vision plans, dental plans, HSAs, and health flexible spending accounts are often excepted benefits. High-deductible health plans are not. 
        TIP:  Here's the part where you need to sit up and pay attention: even plans that are ...
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Posted in Health Care
You've heard a lot of buzz about the individual mandate, the tax, and the expansion of Medicaid. (If somehow you haven't heard enough, you can read the Supreme Court opinion here.) And you'll be hearing plenty more about the political battle over the future of the health care reform law. We have no predictions about that. But whatever you hope will happen to health care reform politically, you know there are a lot of deadlines for the beginning of 2014. And you're wise enough to know you need to gear up for the laws requirements.
The constitutionality of the individual mandate ...
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Its been a big week at the Supreme Court. The health care ruling (available here) is grabbing most of the headlines. While more analysis will be pouring out over the next several weeks, several sources are beginning to provide helpful information for employers:
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Last week, the Eleventh Circuit Court of Appeals held that a former employee can pursue her FMLA claims against her former employer even though she failed to meet eligibility requirements under the FMLA at the time she was terminated.  In Pereda v. Brookdale Senior Living Communities, Inc., an employee gave advance notice that she would need FMLA leave because of her pregnancy.  Shortly thereafter, the employee was put on a performance improvement plan and then terminated.  The employee brought suit, claiming that her former employer had interfered with her FMLA rights and retaliated ...
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Performance reviews can be a managers least favorite part of the job. They can be uncomfortable, confrontational and emotional. So, often, instead of addressing incidents of misconduct or poor performance with the employee, managers avoid the issue, and may even give a neutral or positive review. Then, when the manager concludes that discipline or termination are warranted, there is no documentation to back-up assertions of negative job performance, which can make things difficult if an employee later claims the action was taken for unlawful reason.  But even leaving aside the ...
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As Megan Anderson wrote in her post "Does Your Company Have a "Workyard" Bully?," proposed anti-workplace bullying legislation is on the rise across the country.  Earlier this month, the trend made its way to the Land of 10,000 Lakes, as Minnesota became the 21st state to introduce workplace bullying legislation
The legislation, introduced as S.F. No. 1352, has been referred to the Minnesota Senate's Jobs and Economic Growth Committee.  A companion version, H.F. 1701, was introduced in the Minnesota House of Representatives and referred to the House Commerce and Regulatory ...
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Posted in Health Care, Leave

One can hardly turn on the news without seeing coverage of the stand-off in Madison, Wisconsin between Governor Walker and union protesters over the Governors proposal to require government workers to contribute more to their health care and pension costs and to largely eliminate their collective bargaining rights. Many protesters who called in sick to attend the protest rallies were allegedly able to obtain sick notes from doctors who were providing sick notes at the protest rallies without any medical examination. This raises an interesting questionwhat is an employer to do when ...

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The news of the last week has been a particularly interesting illustration of the promise and perils of technology, particularly related to social media. On the one hand, Facebook and other social media outlets continue to be used as tools to organize protests and spur on the cause of revolution in countries where citizens have long been oppressed and felt powerless. On the other hand, there are several stories from the last week about employees sharing confidential information (including pictures of medical patients), complaining about workplace conditions, or even Tweeting ...
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