GSHHRA
Healthcare Leadership and Education
Summit
Latest Labor and Employment Developments
Jeffery L. Thompson
Constangy, Brooks, Smith & Prophete, LLP
Telephone: 478-621-2423
Email: jthompsonconstangy.com
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In a Word - Pot
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Medical Marijuana
• On March 25, 2015, the Georgia House of
Representatives voted to approve the Senate’s
version of House Bill 1.
• HB 1 was signed into law on April 16, 2015.
• Under HB 1, Georgians with specified medical
conditions can get a recommendation and
certification from their doctor that allows them to
use the CBD oil.
• The Georgia Department of Public Health is
creating a low THC oil registry.
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Medical Marijuana
• Patients can possess no more than 20 ounces of
the oil at a time.
• Patients must meet three requirements to lawfully
possess Low THC oil: (1) must be registered with
the Department of Public Health; (2) must possess
a registration card issued by the Department of
Public Health; (3) substance must be in a
pharmaceutical container with a manufacturer’s
label.
• There is also a provision regarding people
participating in clinical trials.
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Medical Marijuana
and the Workplace
• The bill specifies that it does not require an
employer to “permit or accommodate the use,
consumption, possession, transfer … of marijuana
in any form” and does not "affect the ability of an
employer to have a written zero tolerance policy
prohibiting the on-duty and off-duty use of
marijuana or prohibiting any employee from
having a detectable amount of marijuana in such
employee’s system while at work.
• No ADA accommodation because Federal law
prohibits the use of marijuana.
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Supreme Court of the
United States
Recent Decisions
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Obergefell v. Hodges
Same-Sex Marriage
• 5-4 decision, majority opinion was authored by
Justice Kennedy, joined by Justices Breyer,
Ginsburg, Kagan, and Sotomayor on June 26,
2015
• The due process and Equal Protection clauses of
the 14th Amendment to the U.S. Constitution
compel states to recognize same-sex couples
• The First Amendment will continue to protect those
who object to same-sex marriage for religious
reasons
• States must recognize lawful same-sex marriages
performed in other States
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King v. Burwell
Affordable Care Act
• Here is the heart of the dispute: one provision of the
Affordable Care Act (ACA) indicates that subsidies are
only available to people who purchase their health
insurance on an exchange “established by the State.”
• The plaintiffs in the case argued that this means that
subsidies are not available to the millions of people
who purchased their health insurance on an exchange
that was created by the federal government, because
the federal government is not a “State.”
• The SCOTUS agreed that tax subsidies are available
under the ACA for everyone who purchases health
insurance on an exchange, regardless whether the
exchange was created by the federal government or
a state.
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Equal Employment Opportunity Commission
(EEOC)
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Top EEOC Issues for 2015
• Americans with Disabilities and Reasonable
Accommodations
• Pregnancy Discrimination Act and Reasonable
Accommodations
• Issues Related to Wellness Programs
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Americans With Disabilities Act
Leave Policies and Reasonable Accommodations
• Old Rule: If an employer could show it made efforts
to accommodate the individual, the charge would
be dismissed.
• New Strategy: EEOC will second guess and require
documentation as to the efforts to provide a
reasonable accommodation.
• Ex. Individual out for a year due to disability and
terminated. EEOC will ask why it was not an undue
hardship for individual to remain out!
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Americans With Disabilities Act
Accommodation
• Flex schedule may be reasonable accommodation
• Solomon v. Vilsack
• Court held Maxiflex schedule may be reasonable form of
accommodation for employee with severe depression as
employer had previously tolerated same.
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Americans With Disabilities Act
Accommodation
• EEOC v. Ford
• Employee had a severe case of IBS and wanted to work
from home; Ford refused and EEOC sued.
• Court held that “regular, predictable, on-site attendance
is necessary to be qualified for jobs requiring team work
and interactive behaviors.”
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Americans With Disabilities Act
Accommodation
• Court did not address issue of “reasonable
accommodation” because it held that employee was
not “qualified.”
• Good case for employers, but employers should never
assume that working from home can never be a
reasonable accommodation.
• INTERACTIVE PROCESS is key.
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Americans With Disabilities Act
Wellness Programs
• EEOC v. Honeywell – (Pending)
• Alleges violation of ADA and GINA.
• Alleges requiring to participate in medical
exams associated with wellness program when
providing financial inducements (reducing
contributions to HSAs and imposing surcharges
on employees who decline testing) to
incentivize participation was unlawful.
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Americans With Disabilities Act
Medical Examinations
• “Counseling” requirement may violate prohibition on
medical examinations
• Kroll v. White Lake Ambulance Authority
• EMT who was required to undergo counseling because of
emotional outbursts related to an affair with a married coworker stated a cause of action for unlawful ADA medical
exam.
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Title VII
Pregnancy Discrimination
• New EEOC Guidance on Pregnancy and Related
Issues
• Published July 14, 2014
• Employers are obligated to make reasonable
accommodations for pregnant employees
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Title VII
Pregnancy Discrimination
• Young v. UPS (Sup. Ct. March 2015)
• Supreme Court held that under Title VII, employers have a
duty to accommodate pregnant employees.
• Pregnant employee must establish that the employer did not
accommodate her but provided an accommodation to
“others similarly situated in their ability or inability to work.”
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Title VII
Pregnancy Discrimination
• Young v. UPS (Sup. Ct. March 2015)
• Pregnant employee can establish pretext by showing that
employer’s policies impose a significant burden on
pregnant employees.
• Pretext can be shown by showing accommodation
provided to large percentage of non-pregnant workers,
but not to a large percentage of pregnant workers.
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What Should You Do?
• Review leave policies
• Include pregnancy
• length of whole pregnancy may be included in certain
situations
• Eliminate bright line termination dates
• Consider all requests on a case-by-case basis
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United States Department of Labor
Wage and Hour Division
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Obama Announces White Collar Proposed Rules
on Exemptions
• Salary Level - $50,440.00
• Salaries Indexed
• Job Duties Test
• Federal Administrative Procedure Act
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Employee Breaks
• Issue: Do you require employees to clock out
before leaving campus?
• Breaks of 20 minutes or less must be treated as
compensated
• Georgia DOL says an employer does not have to
compensate for meal periods of thirty minutes or
more, as long as the workers are free to use the
meal period time as they wish and are not
required to perform work during that time
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Fair Labor Standards Act - Compensable Time
• Meal breaks
• Aguilera v. Waukesha Memorial Hosp.
• Housekeepers and nursing assistants may seek overtime pay for
automatically deducted meal breaks when they were required to carry
cell phones and answer calls during breaks
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Fair Labor Standards Act - Home Care Workers
• DOL Regs pertaining to home care workers invalidated
• September 2013 Final Rule issued – narrowed types
of companionship service duties for which workers
are exempt from MW/OT requirements of FLSA;
eliminated exemption for employees of third-party
business
• Effective date January 1, 2015
• Home Care Ass’n of America v. Weil
• On December 22, 2014, and January 14, 2015, the Court
invalidated Regulation
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Family and Medical Leave Act
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Family and Medical Leave Act
• Demand for multiple physician notes violated FMLA
• Oak Harbor Freight Lines, Inc. v. Antti
• Employee on FMLA intermittent leave required to submit
doctor notes for each absence
• Medical re-certifications only allowed on reasonable basis,
and not more often than every 30 days, unless doubts
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Family and Medical Leave Act
• Absences Exceeding Doctor’s Certification
• Hansen v. Fincantieri Marine Group, LLC
• Employee out for depression more frequently than doctor’s
certification
• Terminated for attendance; filed FMLA suit
• Ct: Violation of FMLA; employer’s only course of action is
request for recertification
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What Is A Spouse?
• FMLA defined spouse as husband or wife as defined or
recognized under State law for purposes of marriage in the
State where the employee resides.
• Effective March 27, 2015 - New definition defines spouse by
place of celebration not place of residence. If legally
married in State where marriage occurred, then meets
definition of spouse in all States. If legal in any State, then
legal even if it occurred in no State (e.g. Bahamas)
• Supreme Court of the United States expanded definition
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Title VII – Increase in LGBT Claims
• LGBT Executive Order for Federal Contractors
• Signed by President on July 21, 2014 / effective
immediately
• Amends EO 11478 and 11246
• Adds “sexual orientation” and “gender identity” to
list of protected categories
• Employment Non-Discrimination Act next?
• OFCCP Final Rule published December 3, 2014
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National Labor Relations Board (NLRB)
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New Ambush Election
• Effective April 14, 2015.
• Election time line is shortened from 45 days to 1321 days.
• Consequence: The shorter election process will
significantly benefit unions and their organizers by
decreasing the time that employers can
communicate facts regarding union
representation.
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Summary:
Ambush Election Timeline
OR
Day 1 Day 2 Day 7 Day 8
Day 9
Day 11
Stipulation
or
Petition
Filed
Day 13
Day 21
ELECTION!
Hearing
Post Notice of
Election
Statement of
Position DUE
Decision and
Direction of
Election
ELECTION!
Excelsior List
DUE
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Practical Concerns
• The new ambush election rules make
organizations more vulnerable than before.
• Once the petition is filed, an employer’s option will
be very limited.
• If an employer is not prepared in advance, it
would be difficult to have a successful campaign.
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Access to E-mails
• On December 11, 2014, the Board in Purple
Communications overruled Register Guard and held that
employees are entitled to access an employer’s e-mail
systems for communicating under Section 7 of the NLRA
during their non-working time if the employer gives the
employees access to the e-mail system for business
communication.
• The Board stated that email has “effectively become a
natural gathering place pervasively used for employeeto-employee conversations” and the fact that this
“gathering place” is virtual does not undermine the role
that email plays in Section 7 protected workplace
discussions.
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The Board’s Decision Is Limited
1.
Applies to only employees who have already been
granted access to the employer’s e-mail system in the
course of their work and does not require employers to
provide such access.
2. An employer may justify a total ban on non-work use of
e-mail, including Section 7 on non-work time, by
demonstrating that special circumstances make the
ban necessary to maintain production or discipline.
• What’s considered necessary is not discussed in the
Board decision.
3. Does not address e-mail access by non-employees or
any other type of electronic communication system.
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Rules Regulating Employee Conduct
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March 18, 2015 – General Counsel’s Report
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From the General Counsel’s
March 18 Report:
• Categories of rules addressed in the report:
• Confidentiality.
• Conduct toward the employer and
management.
• Conduct toward co-workers.
• Communications and interaction with outside
parties and the media.
• Photography and recording in the workplace.
• Leaving work or premises, or walking off the job.
• Conflicts of interest.
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From the General Counsel’s
March 18 Report:
• Overview of the General Counsel’s position:
• The General Counsel generally views employer rules as
unlawful when, in his view, an employee “would
reasonably” construe a rule as prohibiting any form of
protected concerted activity.
• It is not relevant that there may be no evidence that the
policy language in fact restricted any employee's actions,
and there is no room for an employer to demonstrate that
the GC’s view of how an employee “would reasonably”
construe language is incorrect.
• A rule might be viewed as having a “chilling effect” even
if the prohibited behavior is harmful to the employer, coworkers, third parties, or the public, and even if there are
less-harmful ways for employees to dispute and
communicate.
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Examples of Unlawful Rules Regulating
Employee Conduct
• Be respectful to the company, other employees,
customers, partners, and competitors.
• No defamatory, libelous, slanderous or discriminatory
comments about the company, its customers and/or
competitors, its employees or management.
• Disrespectful conduct or insubordination, including, but
not limited to, refusing to follow orders from a supervisor
or a designated representative.
• Refrain from any action that would harm persons or
property or cause damage to the company’s business or
reputation.
• It is important that employees practice caution and
discretion when posting content on social media that
could affect the employer’s business operation or
reputation.
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Examples of Lawful Rules Regulating
Employee Conduct
• No rudeness or unprofessional behavior toward a
customer, or anyone in contact with the company.
• Employees will not be discourteous or disrespectful to
a customer or any member of the public while in the
course and scope of company business.
• Each employee is expected to work in a cooperative
manner with management/supervision, coworkers,
customers and vendors.
• Each employee is expected to abide by company
policies and to cooperate fully in any investigation that
the company may undertake.
• Being insubordinate, threatening, intimidating,
disrespectful or assaulting a manager/supervisor,
coworker, customer or vendor will result in discipline.
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Unlawful Employee Conduct Rules
• Do not make insulting, embarrassing, hurtful or
abusive comments about other company
employees online, and avoid the use of offensive,
derogatory, or prejudicial comments.
• Do not send unwanted, offensive, or
inappropriate emails.
• Material that is fraudulent, harassing
embarrassing, sexually explicit, profane, obscene,
intimidating, defamatory, or otherwise unlawful or
inappropriate may not be sent by email.
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Lawful Employee Conduct Rules
• No harassment of employees, patients or facility
visitors.
• No use of racial slurs, derogatory comments, or
insults.
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Unlawful Rules Regulating Third Party
Communications
• Employees are not authorized to speak to any
representatives of the print and/or electronic
media about company matters unless
designated to do so by HR, and must refer all
media inquiries to the company media
hotline.
• Associates are not authorized to answer
questions from the news media. When
approached for information, you should refer
the person to the employer’s Media Relations
Department.
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Lawful Rules Regulating Employee
Communications with Outside Parties
• The company strives to anticipate and manage
crisis situations in order to reduce disruption to our
employees and to maintain our reputation as a
high quality company. To best serve these
objectives, the company will respond to the news
media in a timely and professional manner only
through the designated spokespersons.
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Enforcement Trends –
Social Media
“The social media cases have been very helpful in
terms of raising the public’s awareness of the NLRB.”
- NLRB Chairman Pearce,
January 2014
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Jeff, Where Do I Start?
• Rules of Conduct and Other Policies.
• Train Managers on Latest in ADA, FMLA and NLRB
issues.
• Development of Union Avoidance Strategy.
• (5 Step Plan for Union Avoidance)
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Georgia Board of Nursing
Nurse Practice Act
(O.C.G.A. 43-26-53)
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Mandatory Reporting of Terminated Nurses
• As of July 1, 2014, the Georgia Board of Nursing requires that any employer of nurses
(licensed practical nurses, registered nurses or advanced practice registered nurses)
report the name of any nurse whose employment is terminated or who has resigned in
order to avoid termination for any reasons provided in the Nurse Practice Act, which
include the following:
(1) Practicing nursing as a registered professional nurse, an advanced practice registered
nurse, or a licensed practical nurse, without a valid, current license, except as otherwise
permitted under Code Section 43-26-12 or 43-26-41, as applicable;
(2) Practicing nursing as a registered professional nurse, an advanced practice registered
nurse, or a licensed practical nurse under cover of any diploma, license, or record illegally or
fraudulently obtained, signed, or issued;
(3) Practicing nursing as a registered professional nurse, an advanced practice registered
nurse, or a licensed practical nurse during the time the applicable license is suspended,
revoked, surrendered, or administratively revoked for failure to renew;
(4) Using any words, abbreviations, figures, letters, title, sign, card, or device implying that
such person is a registered professional nurse, an advanced practice registered nurse, or a
licensed practical nurse unless such person is duly licensed or recognized by the board to
practice as such under the provisions of this chapter;
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Mandatory Reporting of Terminated Nurses
(5) Fraudulently furnishing a license to practice nursing as a registered professional nurse, an
advanced practice registered nurse, or a licensed practical nurse;
(6) Knowingly aiding or abetting any person in violating this chapter;
(7) While holding a license as a nurse, convicted of any felony, crime involving moral
turpitude, or crime violating a federal or state law relating to controlled substances or
dangerous drugs in the courts of this state, any other state, territory, or country, or in the
courts of the United States, including, but not limited to, a plea of nolo contendere entered to
the charge; or
(8) While holding a license as a nurse, currently or previously displaying an inability to
practice nursing as a registered professional nurse, an advanced practice registered nurse, a
licensed undergraduate nurse, or a licensed practical nurse with reasonable skill and safety
due to use of alcohol, drugs, narcotics, or chemicals.
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Mandatory Reporting of Terminated Nurses
• Additionally, any nurse (this includes nurse administrators,
nurse supervisors, nursing colleagues, or other nurses) is
required to report the name of any nurse if there is
reasonable cause to believe that the other nurse violated
any of the grounds for discipline provided in the Nurse
Practice Act, which were described previously.
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QUESTIONS?
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