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Everything you need to know about BMD and the industry.

Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.

Walmart. In early April, a Walmart retail employee’s family filed a lawsuit against Walmart in Cook County, Illinois (Circuit Court of Cook County, Illinois Case No. 2020L003938) following the employee’s death after contracting COVID-19. The lawsuit filed by the employee’s family accuses Walmart of negligence and wrongful death in violation of Illinois law. The Complaint alleges that Walmart did not follow guidelines issued by the Center for Disease Control and Prevention and U.S. Department of Labor for maintaining safe workplaces. It is alleged, among other things, that Walmart failed to enforce social distancing, properly cleanse and sanitize, provide PPE including masks, latex gloves, or antibacterial wipes to employees, and further failed to send COVID-19 exposed employees home until cleared by a medical professional.

Tyson. In May, a Tyson employee’s family filed a lawsuit against Tyson in the Northern District of Texas (U.S. District Court for the Northern District of Texas Case No. 2:20-cv-00125-Z) after the employee suffered a work-related injury, contracted COVID-19, and died. The lawsuit filed by the family accuses Tyson of failing to provide employees with appropriate personal equipment, and further alleging that “a grossly disproportionate number of Tyson employees have contracted COVID-19, and have died, compared to the population as a whole.” The lawsuit was later voluntarily dismissed by the employee’s family on June 5, 2020.

As employees continue to return to work, employers should focus on preventative measures to keep employees safe and healthy to avoid having to defend against any personal injury or wrongful death lawsuits. Some of the best practices related to workplace safety concerning COVID-19 include:

  1. Following the CDC’s Interim Guidance for Businesses, including best practices for cleaning and disinfecting areas in the workplace, social distancing, and quarantining employees who have confirmed their exposure to COVID-19.
  2. If and when an employee has a confirmed case of COVID-19, send the employee home preferably until they are released by a medical professional, or at least until they are able to meet the requirements for ending home isolation.
  3. If and when an employee has a confirmed case of COVID-19, work to quickly determine all other employees and/or third parties who might have been exposed to the COVID-19 positive employee. The CDC Contact Tracing Guidelines provide that in order to best determine other employees who were at highest risk to COVID-19 exposure, employers should ask the following question: Who worked within 6 feet of the sick employee, for 15 minutes or more, within the 48 hours prior to the sick employee showing symptoms? This has been referred to as the “6-15-48” Rule. Once identified, the CDC recommends that 6-15-48 employees of non-critical business self-quarantine for 14 days after their last potential exposure, maintain social distance, and self-monitor symptoms.
  4. Stay apprised on the changes and updates issued by the CDC and share with your employees. Educating and engaging employees is key. Continue to remind employees of COVID-19 symptoms and urge them to seek medical attention if COVID-19 symptoms appear. For employees who are isolated, the employer should check in with the employee at least once a week.
  5. If there is a confirmed case of COVID-19 in the workplace, inform employees immediately. Although there is no case law requiring employers to inform employees of confirmed cases, erring on the side of transparency will help best conform with OSHA’s general duty clause, which requires employers to maintain a safe work environment.

For questions, or more information, please contact your primary BMD attorney.

The Future of the Families First Coronavirus Response Act

Over the last year we all have had to adjust to the new normal ushered in by the coronavirus pandemic. Schools and daycares closed, businesses transitioned from in-office work to work from home, bars and restaurants have closed their doors...all to slow the spread and try to prevent this pandemic from spiraling out of control. The start of the pandemic was utter pandemonium. Working parents trying to balance both caring for their now at-home children and their livelihood. Businesses trying to decide how to implement leave policies with limited information. Employees determining if they could financially afford to take time off. We were all flying by the seat of our pants trying to adjust to our new normal.

Ohio Supreme Court Clarifies Medical Statute of Limitations

The Ohio Supreme Court issued a decision in late December that clarifies and finalizes the Ohio law regarding the period of time in which patients can assert claims for medical malpractice. The Court was examining the interplay between three different statutes being the statute of limitations, the statute of repose, and the savings statute.

Ohio Hospitals and Healthcare Clinics: It’s Time to Revisit Your Billing and Collection Practices

According to a recent Cuyahoga County case, certain healthcare entities may not be protected from liability when engaging in unfair or deceptive billing acts. This decision is consistent with the growing trend across the country to encourage price transparency and eliminate unfair surprise billing practices by health care organizations. Now is the time for hospitals and other health care organizations to revisit their billing and collection policies and procedures to confirm that they are legally defensible and consistent with best practices.

HIPAA Business Associate Agreements: Why These Contracts Matter

No one loves drafting, reading or negotiating HIPAA Business Associate Agreements (BAAs). Yet many of us need to do so, and some of us do so daily. They are often boring, dense and technical, but BAAs are important from both a legal and a business perspective, and they deserve our attention. Failure to enter a BAA when one is required can constitute a HIPAA violation that results in substantial liability, as demonstrated by certain recent Department of Health & Human Services (HHS) settlements.1 A business associate who makes a disclosure that is not authorized by the applicable BAA or required by law can be subject to civil and, in some cases, criminal penalties. Further, parties are often presented with BAAs that contain onerous one-sided indemnification and other provisions that can be devasting to an organization in the event of a HIPAA breach. The significance of a BAA is often not fully understood by the parties until something goes wrong (e.g., a HIPAA security incident or breach, an Office of Civil Rights (OCR) audit or a fracture in the relationship between the parties) and, at that point, there is limited opportunity to mitigate legal and business risk. Ideally, attention should be given at the commencement of the business associate relationship, when the parties are able, to thoughtfully addressing regulatory requirements, planning and preparing for potential adverse events and appropriately allocating risk among the parties. As with most healthcare regulatory compliance initiatives, a proactive approach with respect to BAAs is preferable. This article provides a broad overview of certain BAA requirements and some practical negotiating tips for the parties involved.

“I’m Out Of Here!” Now What?

We all know that the healthcare industry is experiencing a wave of integration. This trend has been evident for many years. Fewer physicians are willing to assume the legal, financial and other business risks associated with owning their own practices. More and more physicians, including anesthesiologists, are becoming employed by large physician groups, health systems and national providers. This shift necessarily involves not only entry into new employment arrangements but also the termination of existing relationships. And those terminations are often governed by written employment agreements, state and federal healthcare laws and employer benefit plans and other policies and procedures. Before pursuing their next opportunity, physicians should pause for a moment and first attend to the arrangement that they are leaving. Departing physicians need to understand their legal rights and obligations when leaving their current employment relationships in order to avoid unintended consequences and detrimental missteps along the way. Here are a few words of practical advice for physicians contemplating an exit from their current employment arrangements.