By Brent I. Clark, Kristin G. McGurn, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on “Facing Addiction in America: The Surgeon General’s Spotlight on Opioids,” (Washington, DC: HHS, September 2018).

In the Report, Alex M. Azar, II, Secretary of the HHS, notes that “the opioid misuse and overdose crisis touches everyone in the United States.  In 2016, we lost more than 115 Americans to opioid overdose deaths each day, devastating families and communities across the country. Preliminary numbers in 2017 show that this number continues to increase with more than 131 opioid overdose deaths each day.  The effects of the opioid crisis are cumulative and costly for our society—an estimated $504 billion a year in 2015—placing burdens on families, workplaces, the health care system, states, and communities.”

The “evidence-based public health approach” described in the Report offers a way forward.  Its goal is to reduce the impact of the opioid crisis by addressing factors that contribute to opioid misuse and its consequences.  The Report offers that by adopting this approach—which seeks to improve the health, safety, and well-being of the entire population—the nation will have an opportunity to take effective steps to prevent and treat opioid misuse and opioid use disorder and reduce opioid overdose.  The evidence-based public health approach to the opioid crisis complements the broader healthcare ecosystem’s focus on social determinants of health and consumers’ behavioral conditions, which are widely viewed as critical to improving individual and national health outcomes over the long term.

Specifically, the Report offers suggestions for various key stakeholders, including, the healthcare profession and other employers generally:

Health Care Professionals and Professional Associations – As Employer and Provider:

  • Address substance use-related health issues with the same sensitivity and care as any other chronic health condition.
  • Support high-quality care for substance use disorders.
  • Follow the gold standard for opioid addiction treatment.
  • Follow the CDC Guideline for Prescribing Opioids for Chronic Pain.
  • When opioids are prescribed, assess for behavioral health risk factors to help inform treatment decisions, and collaborate with mental health providers.
  • Check the PDMP before prescribing opioids.
  • Refer patients to opioid treatment providers when necessary.
  • Become qualified to prescribe buprenorphine for the treatment of opioid use disorder.

Industry and Commerce:

  • Support youth substance use prevention.
  • Continue to collaborate with the federal initiative to reduce prescription opioid-and heroin-related overdose, death, and dependence.
  • Reduce work-related injury risks and other working conditions that may increase the risk for substance misuse.
  • Offer education, support and treatment benefits for workers affected by the opioid crisis.

As a resource for employers, the HHS also offers the Surgeon General Postcard “What Can You Do To Prevent Opioid Misuse?”  The card encourages employers to open up to conversations about the impact of addiction, to learn how to read the signs of struggle within the workforce, to ensure safe workplaces designed to minimize the need for pain prescriptions, and to be prepared to deal with a crisis.  Specifically, HHS counsels:

TALK ABOUT IT:  Opioids can be addictive and dangerous. We all should have a conversation about preventing drug misuse and overdose.

BE SAFE:  Only take opioid medications as prescribed. Always store in a secure place. Dispose of unused medication properly.

UNDERSTAND PAIN:  Treatments other than opioids are effective in managing pain and may have less risk for harm.  Talk with your healthcare provider about an individualized plan that is right for your pain.

KNOW ADDICTION:  Addiction is a chronic disease that changes the brain and alters decision-making. With the right treatment and supports, people do recover. There is hope.

BE PREPARED: Many opioid overdose deaths occur at home. Having naloxone, an opioid overdose reversing drug, could mean saving a life. Know where to get it and how to use it.

HHS also provides help resources and information and a hotline (1-800-662-HELP (4357).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Health Law Group, Workplace Safety and Health (OSHA/MSHA) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

By James L. CurtisAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Health care workers face a range of  safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.

According to the Bureau of Labor Statistics (BLS), the Healthcare Practitioners and Technical Occupations (Major Group) currently employs over 8.5 million workers. BLS further states “employment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, much faster than the average for all occupations, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups. This projected growth is mainly due to an aging population, leading to greater demand for healthcare services.”

The top categories of this increased employment are: General Medical and Surgical Hospitals, Offices of Physicians, Nursing Care Facilities (Skilled Nursing Facilities), Health and Personal Care Stores, and Outpatient Care Centers. Also included are Healthcare Social Workers and Home Health Aides. Many nurses and hospitals are unionized, which can lead to an increased push for government enforcement and involvement.

Regulators have begun to target workplace violence in healthcare settings. California OSHA has led the regulatory wave by issuing new, onerous regulations that require employers to create a Workplace Violence Prevention Plan, train employees, and maintain a Violent Incident Log. Federal OSHA has yet to promulgate a new workplace violence in healthcare standard (see Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries), but the Agency has targeted healthcare employers with General Duty Clause citations.

For example, in Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015), Judge Phillips issued an opinion affirming a General Duty Clause citation to a home health care services employer which alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior. After complaining that the client made her feel uncomfortable, the employee was fatally stabbed by the client at his home. Judge Phillips determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions. The case is illustrative of the increasingly close eye the Agency is placing on workplace violence, and the unique and challenging environment employees face in health care.

Moreover, healthcare systems worldwide share health policy and regulatory goals for ensuring quality care and patient safety, mitigating fraud, cyber threats, and the challenge of data protection.  Cybersecurity and data risk management continue to be a major concern.   Additionally, challenges in the health care industry, such as staffing shortages will remain an issue.

We have previously noted many workplace safety and violence trends in the healthcare sector, including with regard to the propensity of employees to suffer ergonomic injuries while treating and lifting patients. Here are some of our previous related blogs on these topics: Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry, NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers, OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting, Judge Affirms OSHA Citation in Death of Healthcare Worker Killed by Mentally Ill ClientOSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers, and Healthcare Industry Receives New Fact Sheet on Musculoskeletal Disorders in Nursing and Residential Care Workers.

Each of these areas should be closely watched and targeted moving forward by healthcare employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Samantha L. Brooks

Seyfarth Synopsis: Mandatory vaccines and flu shots present challenges to employers attempting to accommodate the sincerely held religious beliefs of employees.  In this case, a hospital worker claimed that he was terminated for failing to get a flu shot due to his religious beliefs.  In affirming the District Court’s decision granting the employer’s motion to dismiss, the Third Circuit held that the worker’s anti-vaccination beliefs were not religious and that, as a result, he was not entitled to the protections of Title VII.  Fallon v. Mercy Catholic Med. Ctr. of S. Pa., No. 16-3573 (3rd Cir. Dec. 14, 2017).

The plaintiff, Paul Fallon, was a Psychiatric Crisis Intake Worker.  In 2012, Fallon’s employer, defendant Mercy Catholic Medical Center of Southeastern Pennsylvania, began requiring employees to obtain a yearly flu vaccine, or submit an exemption form to obtain a medical or religious exemption.  Any employee granted an exemption was required to wear a mask as an accommodation.

Although Fallon did not belong to any organized religious organization, he held strong personal and medical beliefs opposing the flu vaccine.  As alleged in his complaint, Fallon believed that he “should not harm” his own body and that the flu vaccine “may do more harm than good.”  In 2012 and 2013, Fallon sought and obtained exemptions based on his personal beliefs, which he explained in a lengthy essay attached to his requests for exemption.  In 2014, Fallon again requested an exemption and again attached the essay to his request; however, his request was denied, and his employer explained that its standards for granting exemptions had changed.  His employer requested a letter from a clergy member to support his request.  Fallon could not provide one.  He was suspended and ultimately terminated for failure to comply with the flu vaccine requirements.

Fallon filed a complaint in federal District Court in Pennsylvania wherein he alleged disparate-treatment religious discrimination and failure to accommodate his religion in violation of Title VII.  The District Court granted the employer’s motion to dismiss because Fallon’s beliefs, while sincere and strongly held, were not religious in nature and, therefore, were not protected by Title VII.  The dismissal was with prejudice because the District Court concluded that an amendment to Fallon’s complaint would be futile.  Fallon appealed.

In its opinion affirming the judgment of the District Court, the Third Circuit analyzed whether Fallon’s beliefs were, in fact, religious.  Specifically, pursuant to Supreme Court and Third Circuit precedent, the Court analyzed:

  • Whether Fallon’s beliefs were, in the context of Fallon’s life, religious;
  • Whether Fallon’s beliefs occupied a place in Fallon’s life parallel to that filled by God in a traditionally religious person;
  • Whether Fallon’s beliefs addressed “fundamental and ultimate questions having to do with deep and imponderable matters”;
  • Whether Fallon’s beliefs were a “belief-system”; and
  • Whether there were any formal and external signs of Fallon’s beliefs.

After identifying and analyzing these factors, the Court held that Fallon’s beliefs were not religious because they did not “address fundamental and ultimate questions having to do with deep and imponderable matters.”  Rather, Fallon “simply worr[ied] about the health effects of the flu vaccine, disbelieve[d] the scientifically accepted view that it is harmless to most people, and wish[ed] to avoid this vaccine.”  In sum, the Court held that Fallon’s belief–although sincerely held–was medical, rather than religious, and did not occupy a place in Fallon’s life similar to that of a more traditional religion or faith.

Since Fallon’s objection to the flu vaccine was not religious, it was not protected by Title VII.  Importantly, the Court noted that anti-vaccination beliefs can be part of a broader religious faith and that, in those circumstances, they are protected.  In fact, in a footnote, the Court pointed out that Christian Scientists regularly qualify for exemptions from mandatory vaccination requirements.

Employer Takeaways Regarding Religious Accommodation Generally

For employers, and especially healthcare employers, this case reiterates the well-established standards for what constitutes a sincerely held religious belief–rather than a secular personal or medical belief — to warrant an accommodation.

Once an employer determines that an employee has a “sincerely held” religious belief, Title VII requires the employer to reasonably accommodate the employee’s religious belief, unless the employer can demonstrate that it is unable to reasonably accommodate “without undue hardship on the conduct of the employer’s business.”  Importantly, if the employer denies the requested religious accommodation, the employer has the burden to prove the hardship.

The Fallon case also serves to remind employers that what is “religious” is a situational, case-by-case inquiry, especially when considering that one person may engage in a practice for religious reasons, but another person may engage in the very same practice for purely secular, non-religious reasons.

It is good practice for employers, in the interactive process, to ask the employee about the nature of the beliefs, in a sensitive, non-prying manner that respects the employee’s beliefs and privacy.  In doing so, the employer may help elicit what is religious versus what is personal preference.  Before doing so, employers should seek advice of counsel with expertise in this area because the distinction between religious and non-religious beliefs is tricky and highly fact-specific.

It is, however, not a best practice for an employer to request a letter from a clergy member to support an employee’s claim of a religious belief.  It is well-established that an employee’s belief need not be part of an organized, established religion, and it need not be approved by a clergy member.  The Court in Fallon, in a footnote, reiterated that “[a] letter from a clergy member is not the only way to demonstrate that one holds a religious belief.”  The Court further stated that Fallon’s employer mistakenly believed that it could not discriminate on the basis of religion if it terminated an employee who could not produce a letter from a clergy member.  (Nevertheless, the Court held that because Fallon’s beliefs were not religious, terminating him for acting on his beliefs did not constitute religious discrimination.)

The Legal Landscape Regarding Mandatory Vaccines and Religious Accommodation

Employers should be mindful that mandatory flu vaccine policies, particularly for healthcare employers, is a hotly contested issue that can be very jurisdictionally dependent.  Healthcare employers are in the unique position of balancing two equally important priorities: employee requests for religious accommodations, and patient health and safety.

Since 2016, the EEOC has brought several lawsuits against hospitals and healthcare providers in connection with mandatory flu vaccine programs.

In the recent case of EEOC v. Baystate Medical Center, Inc., No. 16-30086 (D. Ma.), the EEOC claimed the employer violated Title VII when it suspended and later terminated an employee after she refused to get the flu vaccine.  The EEOC claimed the employer violated Title VII when the only accommodation it allegedly offered to the employee who sought a religious exemption to the flu vaccine–wearing a face mask at all times while at work–did not allow the employee to effectively perform her job.  Although Baystate Medical Center, Inc. is still pending, both that case and Fallon reiterate the duty of healthcare employers to consider accommodations under Title VII based on the specific facts and circumstances of the situation.

Particularly in light of the EEOC’s recent activity on this issue, an employer must explore what reasonable accommodations can be offered to an employee (preferably with advice of counsel with expertise in this area) and, if the employer is going to deny the request for accommodation, it must document the justifications for the denial.

Employers, their human resources departments and counsel must also be aware of developments in federal, state, and local discrimination laws, which can vary from jurisdiction to jurisdiction.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.