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Employment Law Pitfalls in the New Normal

This week the state of Ohio announced its Responsible RestartOhio plan and issued a Stay Safe Order amending to Department of Health’s prior order, designed to get people back to work and gradually reopen the state, available at https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf. This new order directs employers to require their employees to wear masks (with certain limited exceptions) and recommends changes to shifts, break times, and use of break rooms as a means to limit the spread of the virus. These workplace developments raise a number of potential concerns regarding wage and hour issues, reasonable accommodation, employee medical information, and off-duty conduct policies. 

  • Do employers need to compensate employees for time spent on workplace temperature checks or putting on face coverings or other protective equipment? This is a question that requires fact-specific, case-by-case analysis, but the short answer is - "yes, most likely." The key question under the federal Fair Labor Standards Act is whether or not these are considered "principal activities." Principal activities are those activities that a person is employed to perform and also activities that are "integral and indispensable" to the performance of principal activities. In the context of coronavirus, where temperature checks and face coverings have been mandated by employers or the government, such activities are most likely principal activities that must be compensated. In addition, any walking or waiting time after a principal activity should be compensated under the Department of Labor's continuous workday rule. For example, if an employer requires a temperature check and the employee then has a five-minute walk to their workstation, the time spent on the check and the walk should likely be compensated. The U.S. Supreme Court has held that time spent waiting for a principal activity to occur, such as putting on protective gear, need not be compensated, but this is also a fact-specific issue and should be carefully analyzed. 
  • Are there wage and hour risks to consider if an employer shuts down their break room or staggers break times to comply with Ohio's new Stay Safe Order? If employees must now take lunch breaks at their desks or workstations, or are taking breaks at unusual times, they are more likely to be interrupted or handle work projects during their lunch period. The FLSA and Ohio law require that an unpaid lunch break must be uninterrupted. If the lunch break is interrupted, or the employee is doing work during the lunch break, it becomes compensable. Employers should take steps to ensure that employees are still able to take unpaid breaks without interruption and prevent off-the-clock work. 
  • Must an employer accommodate an employee who declines to wear a face covering for medical reasons? The new Stay Safe Order provides that employees must wear a face covering, with a few exceptions, including when it "is not advisable for health purposes." Employers should therefore engage in an interactive process, similar to an accommodation request under the ADA, to determine if the employee should be accommodated in this manner. 
  • What precautionary steps should employers take as they regularly collect medical information from employees regarding coronavirus symptoms and body temperature? Employers should institute practices and procedures so that employees' medical information is not shared with others. Employers are permitted to obtain information regarding coronavirus symptoms or body temperature during a pandemic emergency, but the Americans with Disabilities Act still requires that it be kept confidential. Any information collected should be kept separate in a medical file and only shared to the extent necessary (for example, sharing with a supervisor or manager when there is a work restriction or accommodation or scheduling impact). 
  • Can an employer impose restrictions on its employees consistent with Ohio's social distancing guidelines and stay-at-home order? Yes, employers may take steps to encourage or require employees to abide by social distancing or stay-at-home practices. Particularly in Ohio, where a stay-at-home order is in place and the state has issued extensive guidelines and recommendations related to social distancing, employers have a reasonable basis for expecting such from their employees. For example, an employer may prohibit employees from attending social gatherings of more than 10 people and may take appropriate action if an employee violates this policy. Of course, employers should seek to communicate and implement such policies in a fair and reasonable manner, given the potential impact on employee relations and morale during a time of crisis.

For more information, please contact Russell Rendall at 216.658.2205 or rtrendall@bmdllc.com.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.