Welcome to the March 2019 edition of the Hall & Wilcox Health and Community Law Alert.
In this issue, we explore the challenges of providing care to vulnerable people, provide an update on new sterilization standards for hospitals and changes to retirement village legislation, examine some recent noteworthy medical cases, and look at legal and ethical issues around genomics and genetics, among other articles.
The Hon’ble Supreme Court of India, in its judgment pronounced on January 7, 2019 in the case of Birla Institute of Technology vs. State of Jharkhand [Civil Appeal No. 2530 of 2012] (“BIT Case”), had held that teachers were not employees for the purposes of Payment of Gratuity Act, 1972 (“PG Act”) and therefore not entitled to receive gratuity. We had discussed the implications of the BIT Case in our earlier article titled ‘Payment of Gratuity to Teachers’.
Interestingly, on January 9, 2019, the Hon’ble Supreme Court, suo moto listed the matter and stayed the operation of its judgment in the BIT Case stating that the court had not been apprised of the retrospective amendment to the definition of “employee” in the PG Act vide the Payment of Gratuity (Amendment) Act, 2009 (“PG Amendment Act”). The Hon’ble Supreme Court observed that:
This week, the U.S. District Court granted the EEOC’s request for a brief reprieve (until April 3) to provide information to federal contractors about what and when they will need to file the EEO-1 Part 2 pay data report. The judge told the EEOC to spell out how pay data will be collected, when it is due and how employers should format the data. The Department of Justice, arguing for EEOC, claimed EEOC’s systems were not prepared to accept the influx of data, but that they were working hard to modify their systems. For the first time, the Court acknowledged the difficulty employers face, the judge stating “I am mindful of the fact that this is a significant burden…the employers are waiting.” The plaintiffs will have an opportunity to respond to EEOC’s plan no later than April 8.
New Jersey Law Prohibits Prospective Waivers and Secret Discrimination, Retaliation, or Harassment Settlements
On March 18, 2019, New Jersey Governor Phil Murphy signed a bill amending the New Jersey Law Against Discrimination (LAD) to prohibit contractual provisions that result in the wavier of a right or remedy provided under the LAD or prevent the disclosure of information pertaining to claims of discrimination, retaliation or harassment. The amendment, which is immediately effective, prohibits any provision in an employment agreement, other than a collective bargaining agreement, that:
- Waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment; or
- Prospectively waives any right or remedy under the LAD.
Don’t forget – April 1 marks the beginning of a new set of sexual harassment training requirements in New York City. While the training requirement began across New York State on October 9, 2018 (and must be completed by October 9, 2019), the City imposes additional requirements on certain employers. Both laws require training to be provided on an annual basis.
On March 18, 2019, we wrote that both houses of the Maryland Assembly had passed bills that would increase the state-wide minimum wage to $15 by 2025 or 2028, depending on the size of the company, but that the House and the Senate still had to work out their differences.
Home care service provider found to be a non-profit organisation despite commercial dealings with related entities
In KinCare Community Services Limited v Chief Commissioner of State Revenue  NSWSC 182, the Supreme Court of NSW (Court) allowed the taxpayer’s application, finding that KinCare Community Services Limited (KinCare) was a ‘non-profit organisation’ during the relevant period and that certain wages were therefore exempt from payroll tax.
KinCare, a provider of home care services to aged people, people with disabilities and Aboriginal and Torres Strait Islander people, is part of a broader group which includes ‘for profit’ entities (Group).