Healthcare’s Hurdles In 2020 Employment Law

• Efforts to Curb Workplace Violence. Healthcare workers continue to be at risk for incidents of workplace violence with 75% of the estimated annual 25,000 incidents of workplace assault occurring in the healthcare industry. Therefore, it is no surprise that several states have introduced bills to address workplace violence in healthcare settings. For instance, in April 2018, California became the first state to require that hospitals and other specified medical providers provide training to its employees regarding workplace violence prevention. Similarly, in 2019, a bill was enacted increasing the penalties for assaults committed inside healthcare facilities. Given the growing need for such programs, healthcare employers throughout the nation should be developing a comprehensive workplace violence prevention plan and/or reviewing and revising existing plans.
• Mandatory Vaccinations/Religious Accommodations. Healthcare employers continue to maneuver through the obligation to provide a safe environment for patient care (by mandating its staff to get the influenza (“flu”) shot) and accommodating an employee’s sincerely held religious beliefs under Title VII and similar state laws. In 2019, the EEOC settled a case against a Michigan hospital for $74,418, where an applicant’s offer of employment was revoked after she refused to get the flu shot based on her Christian beliefs, but nevertheless offered to wear a face mask when performing her job duties. There, the hospital had a policy that allowed for the use of face masks where the employee suffered from a medical condition that prevented him/her from getting the flu shot. While fact specific, this case illustrates the need for healthcare employers to review these types of requests on a case by case basis and to engage in the interactive process in an effort to reasonably accommodate such requests when made.
• Preventing Harassment. In the wake of the #MeToo movement, California lawmakers continue to make sweeping changes to protect employees from harassment and discrimination in the workplace. For example, California employers with five or more employees have until January 2021 to provide one hour of sexual harassment training and education to all nonsupervisory employees (in addition to two hours of training to supervisory personnel). Healthcare providers, particularly those in high-stress environments such as the surgical field, are often faced with harassment charges by current or former employees. If your practice is not currently in compliance, 2020 is the year to make sure that you are.  

• Implicit Bias Training. Several studies have shown that implicit bias (the subconscious associations made on the basis of irrelevant characteristics such as race or gender) has an impact on medical services. As a result, California law mandates that, by January 1, 2022, all continuing education courses for physician and surgeons must include lessons on implicit bias in medical treatment. Similar requirements are in place for nurses and physician assistants, who must comply by January 1, 2023. This law, while not employment related, may curb comments and other offensive behavior in the workplace that could form the basis of a discrimination/harassment claim under state and federal laws.  
• Independent Contractor Issues. Independent contractor misclassification has been a “hot topic” in 2019 as employers try to understand the consequences of the California Supreme Court’s decision in Dynamex (codified by AB 5). Under the Dynamex test, California employers (with limited exceptions) must meet the “ABC” test if they intend to classify someone as an independent contractor. Specifically, the person must be: (1) free from the control and direction of the hiring entity; (2) contracted to perform work that is outside the usual course of the hiring entity’s business; and (3) customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. While AB 5 does exempt physicians, surgeons, dentists, podiatrists, and psychologists from the Dynamex test, it does not exempt nurse practitioners, nurses, medical assistants, medical technicians, pharmacists, occupational, respiratory, physical and speech therapists, and other workers typically employed in the healthcare industry. As these professionals are not exempt from the ABC test, healthcare employers should be reviewing the classification of these employees with knowledgeable counsel. 
• Arbitration Agreements. Many healthcare organizations in California currently have mandatory arbitration agreements (containing class action waivers) with their employees; however, starting in 2020, such “mandatory” agreements as a condition of employment will no longer be allowed unless the employer can show that it is engaged in interstate commerce, as those are enforceable under the Federal Arbitration Act (“FAA”). This new law does not invalidate agreements that are entered into “voluntarily” (i.e., where it is not a condition of employment) and/or prior to January 1, 2020. On December 6, 2019, consumer groups filed a lawsuit challenging whether AB 51 is unconstitutional because it is preempted by the FAA. While the courts address this issue, healthcare employers should work with counsel to determine whether their agreements are covered by the FAA, and to provide employees with an opportunity to review, consider, and ask questions before signing.  

• Lactation Accommodations. The California legislature has expanded an employer’s obligation to lactating mothers. In 2020, employers will be required to provide a private space for lactation (not a bathroom), one that has access to a sink and refrigerator, and that is close to the employee’s workspace. Failure to provide an employee with an appropriate space and/or break will result in penalties (one hour of pay per violation). Surgical practice groups with under 50 employees may, under certain circumstances, seek an exemption, but all employers must make a reasonable effort to provide a private location for an employee to express milk.
• Ethnic Hairstyles. In 2020, California law will prohibit discrimination because of historical traits associated with race, including hair texture and protective hairstyles, such as locks and braids. While surgical practices may have specific policies pertaining to grooming requirements, they should ensure that those policies do not prohibit such hairstyles. 

Author Bios

Dawn M. Irizarry is a Partner of Carothers DiSante & Freudenberger LLP. Dawn has substantial experience representing management in all phases of civil litigation involving claims of sexual harassment, unlawful discrimination, hostile work environment, retaliation, wrongful discharge, defamation, failure to accommodate and other employment-related disputes before federal and state courts, the United States Equal Employment Opportunity Commission, and state civil rights enforcement agencies, as well as through private mediation and binding arbitration. Visit www.cdflaborlaw.com  Connect Dawn M. Irizarry Follow @CDFLaborLaw

Carolina A. Schwalbach is a Partner of Carothers DiSante & Freudenberger LLP. She practices employment litigation, defending employers against a wide scope of claims before California state and federal courts and administrative agencies. She also advises clients on compliance with California and federal wage and hour laws, always keeping overarching business goals in mind and engaging a practical approach. Visit www.cdflaborlaw.com  Follow @CDFLaborLaw