Wednesday, October 13, 2021

A quick update on what HIPAA does NOT cover...

Government agencies generally issue updates and guidance that expands the scope of their authority and takes an extraordinarily broad view of their powers (cough upcoming OSHA vaccine mandate cough). In a rather unusual move, HHS has issued guidance explaining what HIPAA does not cover. See HIPAA, COVID-19 Vaccination, and the Workplace

Let me start by assuring you that HIPAA is, in fact, spelled with two As and one P. The full guidance has more in-depth answers, but the high level overview:

1. Does the HIPAA Privacy Rule prohibit businesses or individuals from asking whether their customers or clients have received a COVID-19 vaccine? 

Not official use.
2. Does the HIPAA Privacy Rule prevent customers or clients of a business from disclosing whether they have received a COVID-19 vaccine? 


3. Does the HIPAA Privacy Rule prohibit an employer from requiring a workforce member to disclose whether they have received a COVID-19 vaccine to the employer, clients, or other parties? 


 4. Does the HIPAA Privacy Rule prohibit a covered entity or business associate from requiring its workforce members to disclose to their employers or other parties whether the workforce members have received a COVID-19 vaccine? 

So, what does it do? 

5. Does the HIPAA Privacy Rule prohibit a doctor’s office from disclosing an individual’s protected health information (PHI), including whether they have received a COVID-19 vaccine, to the individual’s employer or other parties? 
Generally, yes. The Privacy Rule prohibits covered entities25 and their business associates26 from using or disclosing an individual’s PHI27 (e.g., information about whether the individual has received a vaccine, such as a COVID-19 vaccine; the individual’s medical history or demographic information) except with the individual’s authorization or as otherwise expressly permitted or required by the Privacy Rule.
I have seen a ton of misinformation flying around about HIPAA protections. So, while it is unusual to issue this kind of guidance, I also need absolutely no explanation for why they published it. 

Tuesday, October 5, 2021

More vaccine guidance for federal agencies!

Not official use.
The Safer Federal Workforce Task Force has issued some new and updated Q&A on COVID-19 vaccinations. While the guidance primarily addresses federal agencies, there is some carry-over to federal contractors (for example, "Prior to being subject to a contractual requirement to be vaccinated, onsite contractor employees who are not fully vaccinated or who decline to provide information about their vaccination status must provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a federal building").

Tuesday, September 28, 2021

New vaccine guidance for federal contractors and subs

You knew this was coming because Pres. Biden ordered it a few weeks ago... well, now it's here. Behold, Safer Federal Workforce Task ForceCOVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. In other words, the vaccine mandate for federal contractors. 

If you have federal contractors, then read the whole thing. I'll note some highlights though:

  • All "covered contractor employees" must be fully vaccinated for COVID-19 by December 8, 2021;
  • The requirements will be incorporated into new contracts awarded on or after November 14th (and agencies are encouraged to include the requirements in contracts awarded from October 15th to November 13th);
  • Not official use.
    "Covered contractor employees" has a super-broad definition. It covers full- and part-time. It includes employees who work on - or even in connection with (think, HR, billing, legal review, etc.) - covered contracts. It covers employees who aren't even working on or in connection with federal contracts! - but, only if the employee works at a location controlled by the employer-contractor, and an employee working on (or in connection with) the contract is likely to be present; and
  • The employer must review all of their covered employees' documentation to prove vaccination status:
    • a copy of the record of immunization from a health care provider or pharmacy, 
    • a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), 
    • a copy of medical records documenting the vaccination, 
    • a copy of immunization records from a public health or State immunization information system, or
    • a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
    • An attestation without one of the above is not enough.

Friday, September 10, 2021

Biden issues employer vaccine mandates - can he do that?

Federal vaccine mandates incoming! The AP reports this as:

President Joe Biden on Thursday ordered sweeping new federal vaccine requirements for as many as 100 million Americans — private-sector employees as well as health care workers and federal contractors — in an all-out effort to curb the surging COVID-19 delta variant.

I'm still working my way through the details, which is proving more challenging than I anticipated. 

Federal Employees

I did track down the executive order that covers federal employees. That's pretty straightforward: 

Each agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.

Federal Contractors

The executive order for federal contractors is not so simple. Pres. Biden doesn't even mention vaccines. Instead a Federal Workforce Task Force will issue Task Force Guidance by September 24, 2021. Magic 8-Ball, will there be vaccine mandates in that guidance? 8-Ball says, "it is decidedly so."

Private Employers

Unless you're the average Twitter user, you are probably aware that the president can't just unilaterally create laws - Article I of the Constitution created a legislative branch to make laws. So, how will Pres. Biden pull off a private employer vaccine mandate?

I think this document gives us the blue print: Congressional Research Service report on Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19. To be clear, the doc is specific to an emergency standard for healthcare workers, but I think you can extrapolate the premise to private employers generally. 
The gist is that OSHA includes a General Duty Clause, which requires employers to provide a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees." And, employers must abide by standards promulgated by OSHA (the Administration - I hereby renew my objection to using OSHA as the acronym for both the Act and the Administration!). 

In turn, OSHA can implement an Emergency Temporary Standard upon determining that:
  • that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
  • that such emergency standard is necessary to protect employees from such danger.
The ETS is then subjected to notice and comment (and the general rulemaking process), but remains in place until superseded by a permanent standard. The validity of the ETS may also be challenged in a U.S. Circuit Court. 

I can guarantee there will be litigation. Magic 8-Ball will a court strike down the mandate? "Reply hazy, try again." I don't purport to be an expert on the validity of OSHA standards, but my gut tells me that this seems like an overreach. We'll see though. 

Thursday, September 2, 2021

Third Circuit defines "personal staff exception" to FLSA

Post 2 (of 2) on Clews v. Cnty. of Schuykill. Last time, I explained that the County had not waived its affirmative defense that the employees claiming unpaid overtime fell under the "personal staff exception" to the Fair Labor Standards Act (FLSA). This time, let's look at who that exception actually covers. 

The FLSA generally covers "employees," but excludes people who work for a state, political subdivision, or intergovernmental agency; are not covered by the applicable civil service law; and fall within one of several categories listed in the FLSA. That list includes those "selected by the holder of [a public elective office] to be a member of his personal staff.” 29 U.S.C. § 203(e)(2)(C)(ii)(II). Yeah, have I ever mentioned that there are a lot of exceptions to the FLSA and they can be complicated? Anyway, we call this one the "personal staff exception."

The Third Circuit first noted that many courts have looked favorably on Teneyuca v. Bexar Cnty., a Fifth Circuit decision identifying 6 factors:

(1) whether the elected official has plenary powers of appointment and removal, 
(2) whether the person in the position at issue is personally accountable to only that elected official, 
(3) whether the person in the position at issue represents the elected official in the eyes of the public, 
Not official use.
(4) whether the elected official exercises a considerable amount of control over the position, 
(5) the level of the position within the organization’s chain of command, and 
(6) the actual intimacy of the working relationship between the elected official and the person filling the position.

That said, the list was not exhaustive, and even courts that adopted it sometimes added their own factors. The Third Circuit didn't exactly reject the Teneyuca factors, but did note concern raised in other contexts that "[t]oo often the factors in a checklist . . . result[] in rote following of a form containing factors where courts tally up and spit out a score without an eye on the principles."

Thus, the Court endeavored to distill the factors into two overarching themes.

[F]or an employee to be a member of an elected official’s personal staff,  
1) the official must work closely with the employee in a sensitive position of trust and confidence, and  
2) the official exercises personal control over the employee’s hiring, promotion, work conditions, discipline, and termination.

Of course, with the usual caveats and wiggle room.... both themes should (not must) be satisfied, "no single factor is dispositive," the themes "often overlap," and "[c]ontext matters." The Court noted that the Teneyuca factors may still be used but only to the extent they are relevant to the two th

Tuesday, August 31, 2021

Third Circuit on waiver of affirmative defenses in wage and hour claims

In Clews v. Cnty. of Schuykill, three former deputy coroners filed claims under the Fair Labor Standards Act (FLSA), seeking overtime pay and alleging retaliation (firing) for complaining about not getting overtime pay. The employer argued that the employees were not covered by the FLSA because they fell under the "personal staff exception," which excludes people who work as personal staff for elected officials.*

The County, however, did not plead this affirmative defense in its answer to the complaint. Generally, a party must plead affirmative defenses as part of their answer. See, Fed. R. Civ. P. 8.1(c). That said, the Court noted past precedent holding that affirmative defenses may be raised at any time "so long as the plaintiff suffers no prejudice." Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012).

Not official use.
Here, the plaintiffs "did not explain what could have been developed in discovery with more explicit notice of the exception." Furthermore, they did not request to reopen discovery even after the County  had specifically briefed the issue. The County also consistently asserted that the employees were exempt from the FLSA (while not specifically identifying the personal staff exception in the answer). Finally, the County also questioned each of the plaintiffs about their job responsibilities. 

The Court ultimately held that the county did not waive the personal staff exception affirmative defense by failing to plead it in the answer to the complaint because the plaintiffs could not show any prejudice. 

Lessons for both sides here:

  • Defendants should raise affirmative defenses as early as possible to avoid waiver.
  • Plaintiffs should request to reopen discovery if a new affirmative defense pops up after discovery. If it's granted, then they can explore the affirmative defense. If it's denied, they have a stronger argument that they incurred prejudice as a result of the defendant raising it late in the game. 

* The Third Circuit also analyzed the scope of the personal staff exception - perhaps an issue for a future blog post. 

Thursday, August 12, 2021

Does USERRA require employers to pay reservists for military leave?

Does USERRA require employers to pay reservists for military leave? Get ready for it folks... cue the
canned applause... he's about to drop his catch phrase... IT DEPENDS! 

In Travers v. Federal Express Corp. (Third Circuit), the employee served in the U.S. Navy and the Naval Reserve. He sometimes took leave from work to fulfill his reserve duties, but FedEx did not pay him for this leave. FedEx, however, does pay its employees who miss work for other reasons, including jury duty, illness, and bereavement. 

What does the statute say? If you love statutory interpretation, a la Scalia and Garner's Reading Law, then this is the case for you! USERRA states:

[A] person who is absent from a position of employment by reason of service in the uniformed services shall be . . . . entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service. 
Not official use.
38 U.S.C. § 4316(b)(1). 

So, USERRA does not require employers to pay for military leave per se, but it does entitle employees who are on military leave to the same "rights and benefits" as other similarly situated employees. 

Ultimately, the Third Circuit held:
FedEx allegedly pays employees for some leave but declines to compensate Travers for leave taken to serve his country. That states a claim under USERRA, a statute with a long history of protecting the jobs and accompanying benefits of Americans called to our common defense. Best understood, USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.

Although I stand by my initial "it depends" response, I suspect that the vast majority of employers "pay[] employees for some leave." Under this ruling, USERRA would then require covered employers to pay for military leave as well. Notably, the Court did not address how much paid leave would be required.