Legal Updates

OSHA Amends Its Rule Requiring Employers to Keep and Maintain Records of Recordable Injuries and Illnesses for Five Years

On December 19, 2016, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

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Staples Settles Consumer Class Action Over Deceptive Rewards Program Practices

Staples has agreed to pay $2 million to end a class action filed in California federal court alleging that the company engaged in deceptive rewards program practices.

In particular, the class action alleged that Staples misled consumers with respect to how (and how many) rewards points will be accrued when consumers apply coupons to their transactions. The high value settlement for the retailer illustrates the importance of having clear and transparent terms and conditions in place for rewards programs, and the need to align actual rewards redemption practices with both the terms as well as general advertising for the program.

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Assisted Decision Making

The much-debated Assisted Decision Making (Capacity) Act 2015 (the “Act”) was enacted on the 30th December 2015, but requires commencement orders to bring it fully into effect. Recently piecemeal sections of the Act have been commenced, however the more comprehensive sections remain in limbo. The Act provides for a new test for capacity, creates a concrete framework to assist individuals in making decisions, radically overhauls the antiquated Wards of Court system, modifies the law regarding Enduring Powers of Attorney (EPOA), and creates a new legal office – The Director of the Decision Support Service.

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The Trump effect: tips to make your workplace ‘Great Again’ in 2017

In late 2016, millions watched with mixed emotions as something which many may once have thought impossible (or at least very unlikely), took place. Donald Trump succeeded in his campaign for the White House and will shortly take office as the 45th President of the United States of America.

Whatever your feelings toward Trump, his campaign was one of the most significant talking points of 2016. Indeed, one of the (many) interesting things which have emerged from it is that many American voters who supported Trump did so, at least in part, because they believe he will run America like he runs his global business empire.

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NLRB on Track to Continue Pro-Union Rulings in 2017

Our colleagues Adam C. Abrahms and Christina C. Rentz, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Rings In the New Year by Signaling It Will Continue Its Pro-Union Rulings.”

Following is an excerpt:

In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.

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NLRB Rings In the New Year by Signaling It Will Continue Its Pro-Union Rulings

In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.

A Position Expressly Created to be Supervisory is Not Supervisory, According to the Board

In 2016, Lakewood Health Center (“Lakewood”) restructured its staffing system and replaced charge nurses with a newly created position, Patient Care Coordinator (“PCC”). According to the uncontradicted testimony of Lakewood Vice-President of Patient Care Danielle Abel, the hospital created this new position for one specific reason – “to ensure accountability for shift-by-shift work flow of the department….in addition to supervising the employees on their shift.”

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Court Issues Nationwide Injunction Prohibiting Enforcement of Section 1557 Provisions Relating to Gender Identity and Termination of Pregnancy – But Other Provisions Still Can Be Enforced

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction that prohibits the U.S. Department of Health and Human Services (HHS) from enforcing certain provisions of its regulations implementing Section 1557 of the Affordable Care Act that prohibit discrimination on the basis of gender identity or termination of pregnancy. This ruling, in Franciscan Alliance v. Burwell (Case No. 7:16-cv-00108-O), a case filed by the Franciscan Alliance (a Catholic hospital system), a Catholic medical group, a Christian medical association, and eight states in which the plaintiffs allege, among other allegations, that the Section 1557 regulations force them to provide gender transition services and abortion services against their religious beliefs and medical judgment in violation of the Religious Freedom Restoration Act (“RFRA”).

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Think Tank: 2017 is shaping up to be a major year for state gas tax reform

The Institute on Taxation and Economic Policy (Institute) released a late December article predicting that significant gas tax reforms will occur in numerous states in 2017. As examples, the Institute pointed to Alaska’s Gov. Bill Walker, who has proposed tripling his state’s gas tax; and Indiana, Louisiana, and Tennessee, where officials are considering their own reforms. “Altogether, it appears that more than a dozen states will seriously debate gas tax changes next year.”

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FY 2016 False Claims Act Recoveries: Government Enforcement Remains Lucrative and a Continued Source of Risk for Health Care Entities—But Will This Change in a Trump Administration?

The federal government continues to secure significant recoveries through settlements and court awards related to its enforcement of the False Claims Act (FCA), particularly resulting from actions brought by qui tam relators. In fiscal year (FY) 2016, the federal government reported that it recovered $2.5 billion from the health care industry. Of that $2.5 billion, $1.2 billion was recovered from the drug and medical device industry.  Another $360 million was recovered from hospitals and outpatient clinics.

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Ohio: Gov. Kasich signs law requiring periodic review of tax loopholes

Last month, we described House Bill 9 (HB9), introduced by state representative Terry Boose, that addressed the periodic review of tax expenditures. At the time, there was a hitch when the House rejected the Senate’s version of the legislation, nearly unanimously.
The crux of the problem with the Senate’s version was the provision that precluded the Director of Administrative Services from making any purchases without prior approval of the controlling board. In fiscal year 2016, the revenue reduction from tax expenditures was $8.49 billion, and in fiscal 2017, $8.86 billion. Lawmakers resolved their disagreement, and Gov. John Kasich signed the bill just before Christmas, along with 16 others.
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