Tag Archives: labor & employment

ILN Today Post

Maryland Is Nation’s Ninth State to Impose Mandatory Sick Leave

In a hotly contested political debate, including a veto by Maryland Governor Larry Hogan and its override by the Senate, Maryland has become the ninth state to require private employers to provide sick leave. Under the Healthy Working Families Act (HWFA), Maryland employers are required to provide “sick and safe leave” to employees. The new law took effect on February 11, 2018. Accordingly, employers with Maryland employees should take immediate action to comply.

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A Shot in the Arm for Employer Vaccine Requirements for Health Care Workers

The United States is in the midst of an unusually lethal flu season, and health experts agree that despite inconsistencies in their effectiveness, flu shots are among the best ways to fight the spread of the flu. A recent holding from the Third Circuit Court of Appeals provides some good news for health care employers who require that their patient-facing employees receive flu shots, making it more difficult for employees to claim a religious exemption.

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HHS Moves to Strengthen Conscience Protections for Health Care Workers

Last week, the federal Department of Health and Human Services (HHS) made two announcements aimed at providing additional protections for health care workers who object to providing services on moral or religious grounds.

On January 18, 2018, HHS announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR).  The stated goal of the new division is to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

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ILN Today Post

DOL Updates Test for Unpaid Interns and Students Under the FLSA

On January 5, 2018, the U.S. Department of Labor (DOL) announced that it would no longer be using the six-factor test it had adhered to since 2010 to determine whether interns are employees — and consequently, entitled to minimum wage and overtime — under the Fair Labor Standards Act (FLSA). Instead, the DOL will now utilize the “primary beneficiary” test articulated by several U.S. Circuit Courts of Appeals (including those covering New York and California) to make such a determination.

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NYC Local Law Amends Definition of Sexual Orientation and Gender

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.

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Missouri District Court Dismisses Sexual Orientation Discrimination Claim by Health Care Executive

Further emphasizing the split in authority on sexual orientation discrimination, last month the Eastern District of Missouri dismissed plaintiff Mark Horton’s claim that Midwest Geriatric Management LLC (“MGM”) violated Title VII by rescinding an offer of employment after learning that he is gay. Horton v. Midwest Geriatric Mgmt., LLC, Case No. 4:17CV2324, 2017 U.S. Dist. LEXIS 209996 (E.D. Mo. Dec. 21, 2017).

Horton asserted that MGM unlawfully discriminated against him on the basis of sex and religion. Horton’s sex discrimination claim comprised three theories: (1) sexual orientation is necessarily discrimination based on sex; (2) discrimination on the basis of his association with a person of a particular sex (his male partner); and (3) nonconformity with sex stereotypes.  In granting MGM’s motion to dismiss, the district court cited Eighth Circuit precedent from a 1989 holding that Title VII does not cover discrimination based on sexual orientation, and concluded that both the sex and religious discrimination claims were merely refashioned sexual orientation discrimination claims.

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New Jersey Amends Its Law Against Discrimination to Provide Protections to Nursing Mothers

On January 8, 2018, former New Jersey Governor Chris Christie signed new legislation (the “Amendment”) amending the New Jersey Law Against Discrimination (“NJLAD”) to add breastfeeding as a protected class under the law. The Amendment, which takes effect immediately, makes it unlawful to discriminate or retaliate against an employee that the employer knows, or should know, is either breastfeeding or expressing milk for her infant child.

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Maryland Sick and Safe Leave Bill to Take Effect After Veto Override

On January 12, 2018, the Maryland General Assembly completed its expected override of Governor Hogan’s May 25, 2017 veto of a bill it passed last April, joining eight other states, the District of Columbia, and various local jurisdictions (including Montgomery County, Maryland) already requiring employers to provide paid sick and safe leave.

As we reported  when the bill originally passed, the new law will require most employers with at least 15 employees to provide up to five paid days (forty hours) per year of sick and safe leave to their employees, and smaller employers to provide up to five unpaid sick and safe leave days. By overriding the veto, the General Assembly rejected Governor Hogan’s original proposal for a narrower bill that would have required paid leave only for business with 50 or more employees and provided tax incentives to smaller business that provide leave, as well as his more recent proposal for a three-year phase-in that also would allow employees to use the leave for any reason.

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New York Court of Appeals Narrowly Construes New York City Human Rights Law

In Makinen v. City of New York, New York’s Court of Appeals held the New York City Human Rights Law precludes an individual from bringing a claim of disability discrimination based on a mistaken perception of untreated alcoholism.

The question arose in a case brought by police officers against the City of New York and certain individuals alleging discrimination based on the mistaken perception that the plaintiffs were alcoholics. The plaintiffs had been referred to an internal counseling service and directed to undergo treatment even though neither plaintiff had been diagnosed as suffering from alcoholism. The plaintiffs filed a lawsuit in federal court under New York State and City Human Rights Laws and the Americans with Disabilities Act.  The district court held individuals regarded as untreated alcoholics could state a claim under the City Human Rights law because analogous claims were available under state and federal law.  On appeal, the Second Circuit certified the following question to the Court of Appeals: “Whether sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

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Get Ready to Respond to IRS Letter 226J: Employer Shared Responsibility Payment Assessments

Our colleague , a Member of the Firm at Epstein Becker Green, has a post on the Technology Employment Law blog that will be of interest to many of our readers in the health care industry: “Get Ready to Respond to IRS Letter 226J: Employer Shared Responsibility Payment Assessments.”

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