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Archive for the ‘Medical & Health Care’ Category

HHS Waives Some HIPAA Sanctions During the Coronavirus Pandemic

Posted on: March 20th, 2020

By: David Cole

The HHS Office for Civil Rights (OCR) issued two important bulletins this week in response to the coronavirus pandemic. Each one announced that OCR will temporarily waive certain sanctions and penalties for noncompliance with HIPAA Rules to help deliver care to people in need.

Limited Waiver for Privacy Rule Requirements

First, OCR issued a Limited Waiver of HIPAA Sanctions and Penalties for not complying with certain parts of the Privacy Rule. Specifically, the Waiver says that healthcare providers will not be sanctioned or penalized for not complying with the following usual requirements:

  • The requirement to obtain a patient’s consent before speaking with family members or friends involved in the patient’s care;
  • The requirement to honor a request to opt-out of the facility directory;
  • The requirement to distribute a Notice of Privacy Practices;
  • The patient’s right to request privacy restrictions; and
  • The patient’s right to request confidential communications.

The Waiver became effective on March 15, 2020, but currently only applies (1) in the emergency area identified in the public health emergency declaration; (2) to hospitals that have instituted a disaster protocol; and (3) for up to 72 hours from the time the hospital implements its disaster protocol. It is unclear if OCR will extend the time for this Waiver given the widespread and potentially prolonged nature of the coronavirus outbreak. A copy of the bulletin is available here.

Video Technology Allowed for Telemedicine

Second, OCR issued a Notification of Enforcement Discretion allowing healthcare providers to use “any non-public facing remote communication product that is available” to communicate with patients to provide telehealth during the coronavirus national emergency. As examples, OCR said it will allow healthcare providers to use video chat application like Apple FaceTime, Facebook Messenger, Google Hangouts, or Skype, to provide telehealth without risk of penalty for noncompliance with HIPAA Rules. However, Facebook Live, Twitch, TikTok, and other similar public-facing video applications are not allowed. Healthcare providers are still expected to enter into Business Associate Agreements with the technology companies providing the video communication services, but OCR says it will not impose penalties for failing to do so during the time of the national emergency. A copy of the Notice is available here.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

U.S. Department of Labor Issues COVID-19 Guidance on FLSA and FMLA

Posted on: March 20th, 2020

By: Catherine Scott

As the federal government continues to grapple with questions from employers regarding COVID-19, the federal agencies have begun to roll out new guidance. The latest comes from the U.S. Department of Labor (DOL), which has issued guidance for employers seeking answers concerning their obligations pursuant to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA).

DOL Guidance for FLSA

The FLSA provides rules and regulations concerning how employees must be paid, including the payment of wages and overtime. Employers around the country have wrestled with whether they can reduce salary and/or hours or furlough or lay off employees as the economy slows down due to COVID-19 and whether employees are required to be paid and in what manner.

The DOL has answered several frequently asked questions concerning these issues. The latest guidance provides as follows:

  • For non-exempt, hourly employees, employers can reduce their hours and/or pay, so long as minimum wage and overtime requirements are met. Non-exempt, hourly employees also can be placed on an unpaid leave of absence or furlough or be laid off due to an economic slowdown;
  • For exempt employees, employers are generally required to pay these employees their full weekly salary if any work is done during the workweek (subject to exceptions, such as when the employer is open for business and an employee, who has no PTO remaining or hasn’t qualified, misses an entire day of work).  Of course, exempt employees can be required to use any accrued, unused vacation or paid time off under the FLSA for any missed time so long as they are still being paid their salary.
  • All employees must generally be paid for telework performed at home, subject to the limitations described above;
  • Employees of private organizations are generally not allowed to volunteer their normal services without pay, subject to a few limited exceptions. Employees may volunteer for public organizations without pay if they (a) perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation; (b) offer their services freely and without coercion, direct or implied; and, (c) are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.

Pay issues can be complicated and very fact-specific (and state-specific) so if you have a question about furloughs, layoffs, or schedule or compensation reductions (whether temporarily or permanently), please contact us so we can assess the individual factual and legal circumstances of your situation.

DOL Guidance for FMLA

Similarly, employers have wrestled with their obligations under the FMLA and whether they must provide job-protected leave to employees who need time away for a qualifying reason.  Initially, it is important to understand that any employer that has between 50 – 500 employees should first familiarize itself with the Families First Coronavirus Response Act as that Act (which will be effective April 2, 2020) substantially expands some of the obligations traditional imposed on employers under the FMLA.  For those employers, however, that are below 50 or above 50 employees, you should keep the following principles in mind in dealing with the Coronavirus.

  • Employees who develop complications from COVID-19 may have a “serious health condition” that would trigger FMLA leave. The same is true of a “family member,” defined by the FMLA as a spouse, child, or parent, who develops complications from COVID-19;
  • However, leave taken by an employee to avoid exposure to COVID-19 would not be covered by the traditional principles of the FMLA;
  • The traditional FMLA does not currently cover employees who require leave to tend to healthy children or children who have been dismissed from school or childcare by their state governments;
  • The traditional FMLA provides only for unpaid leave to employees who qualify; however, the FMLA allows for employees to substitute paid leave in place of unpaid leave in certain circumstances and if the employer’s policies provide for such paid leave;
  • Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.  In addition, employers may require employees to provide:
    • medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic recertification;
    • second or third medical opinions (at the employer’s expense);
    • periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
    • consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.)

The Department of Labor is generally encouraging employers to be flexible in dealing with situations involving employees affected by COVID-19, including re-examining both paid and unpaid leave policies in place at the employer and allowing paid telecommuting to occur.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

What Rhode Island Employers Should Know About COVID-19

Posted on: March 19th, 2020

By: Jennifer Markowski and Catherine Scott

Governor Gina Raimondo has declared a state of emergency in the state of Rhode Island and implemented certain measures, such as the closing of public schools through April 3, that have a direct effect on Rhode Island employers. The Rhode Island Department of Labor and Training (RIDLT) continues to issue guidance to Rhode Island employers to help with these issues.

Unemployment Benefits

In light of the impact of COVID-19, many employers have needed to consider layoffs, furloughs, salary and time reductions, and other options for reducing costs.  Many affected employees are entitled to unemployment benefits.  To facilitate the receipt of benefits, RIDLT announced it would suspend the seven-day waiting period for unemployment claims related to layoffs or involuntary furlough due to COVID-19. Employers who are considering furloughs or layoffs due to COVID-19 can contact our office with any questions about these measures.

Paid Leave Benefits

Many employees in Rhode Island will be eligible to use their paid time off and/or sick leave if their offices remain open but they are unable to work due to an illness and/or childcare issues. The Healthy and Safe Families and Workplace Act provides most employees in Rhode Island with one hour of paid sick leave for every 35 hours worked up to 40 hours per year. The size of the employer will impact how the law is applied, and the waiting period will be determined by the class of the employee.

Additionally, the Coronavirus Response Act has been executed by President Trump. The federal legislation mandates that certain employers provide additional paid leave to their employers.  You can read here to find out more about the provisions and whether it applies to your business.

Temporary Disability Insurance (TDI) and Temporary Caregiver Insurance (TCI) Benefits

For employees whose offices are open but do not have access to paid leave benefits, Rhode Island offers both TDI and TCI insurance benefits. Similar to unemployment benefits, RIDLT announced it would waive the seven-day out-of-work period required before a claimant can receive TDI and/or TCI benefits. Claimants for such benefits will be allowed to temporarily qualify for benefits via self-attestation of quarantine due to COVID-19, rather than being required to supply medical certification. Moreover, employees who are required to stay home due to issues with childcare may be temporarily eligible for TCI benefits.

Unpaid Leave

We note many Rhode Island workers are likely entitled to job-protected unpaid leave under the Rhode Island Parental and Family Medical Leave Act and/or the federal Family and Medical Leave Act as it stands.

If you have questions about these laws or how they apply to your business, feel free to contact Jen Markowski at [email protected] or Cat Scott at [email protected].

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

COVID-19 Closes Schools Across the United States: United States Department of Education Releases New Guidance for Schools During Coronavirus Outbreak

Posted on: March 19th, 2020

By: Tia J. Combs

Many schools across the county have closed or are operating virtually due to the COVID-19 outbreak.  On March 12, 2020, the US Department of Education released two documents with new guidance for schools and educators faced these unprecedented problems.

First, the Student Privacy Policy Office released its FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FAQs) March 2020.  This document details how schools should handle confidential information covered by the Family Educational Rights and Privacy Act (FERPA) during the outbreak.  Most importantly, the document addresses how the health or safety emergency exception to FERPA’s consent requirements (20 U.S.C. § 1232g(b)(1)(I); 34 C.F.R. §§ 99.31(a)(10) and 99.36) might permit an educational agency or institution to disclose personally identifiable information (“PII”) about particular students.  The document reiterates that agencies and institutions are responsible for making a determination, on a case-by-case- basis, concerning disclosure.  It also notes that disclosure, without prior written consent, is permitted under law if there is, based on the totality of the circumstances, an articulable and significant threat to the health of safety of a student.

The document specifically addresses the question of whether schools may disclose, without prior written consent, to other students and parents that a student is out sick due to COVID-19.  The document states that such disclosure is generally going to be permissible if it is released in a form that cannot be traced back to a specific student.

Second, the Department released its Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak. This document outlines how local educational agencies (“LEA”) can provide a free appropriate public education to students with disabilities during a school closure caused by the COVID-19 outbreak.  The document explains that if LEAs are continuing to provide educational services to the general student population during a closure, LEAs must also continue to provide educational opportunities to special education students consistent with their IEP or 504 Plan to the greatest extent possible.  Schools must also provide specialized instruction to children with disabilities who are infected with COVID-19 and miss school for an extended period of time, possibly via homebound services if the student qualifies. The document emphasizes that special education students who are not provided with services could be owed compensatory education.

The US Department of Education has also launched a website with general information for schools faced with complications from COVID-19 at https://www.ed.gov/coronavirus.

More Information Can be Found at:

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

COVID-19: What Medical Inquiries Can Employers Make?

Posted on: March 16th, 2020

By: Jennifer Markowski

Last week, Brad Adler, addressed FAQ’s (and Answers) for Employers Dealing with the Coronavirus, COVID-19. Subsequent to that article, on March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a pandemic. Consequently, employers should follow the Equal Employment Opportunity Commission’s (“EEOC”) pandemic guidance “Pandemic Preparedness in the Workplace and the ADA,” which details what medical inquiries and testing are permissible in the workplace in light of the existing pandemic.

The Americans with Disabilities Act (“ADA”) prohibits employers from making disability-related inquiries and/or requiring employees to submit to medical examinations unless they are job-related and consistent with business necessity.  Now that COVID-19 has been declared a pandemic, according to the EEOC guidance, employers can do the following without running afoul of the ADA:

  • Send employees home who are exhibiting COVID-19 symptoms;
  • Ask employees who call-in sick whether they are experiencing fever or chills and a cough or sore throat (symptoms of COVID-19);
  • Measure employee temperatures, if COVID-19 is widespread in the community as defined by state or local health ordinances or the CDC;
  • Ask where employees have traveled;
  • Ask why employees have not reported to work (this is always permissible);
  • Implement measures to prevent infection, such as wearing masks or requiring teleworking.

As always, information obtained about an employee’s medical illness must be kept confidential and separate from the employee’s personnel file and can only be shared with individuals on a need to know basis.  Additionally, if an employee receives ADA accommodations in the workplace and is then required to telework, those same accommodations should be provided for in the telework space, unless doing so would create an undue hardship.

The Occupational Safety and Health Organization (“OSHA”) has also issued guidance for pandemic preparedness. Those guidelines are accessible here.

In addition, FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].