A recent ruling by the U.S. District Court for the District of Massachusetts in a restrictive covenant case, Ascend Learning, LLC v. Bryan and SPIN-Learning, LLC, No. 22-cv-11978 (August 16, 2023), has implications for the “material change” doctrine under Massachusetts law, the state’s prohibition against noncompetition covenants for registered nurses, and personal jurisdiction over corporate entities.
As the September 14, 2023, deadline to pass bills during the current session of the California Legislature fast approaches, the California Senate and Assembly are considering several employment law bills. Many are likely to pass. Below is a summary of some of the more significant bills.
Several J-1 visa waiver application windows are set to open in fall 2023 for physicians who plan to start working for an employer following completion of their residency or fellowship programs in spring/summer 2024.
Employers have some new clarity on the No Surprises Act rules on out-of-network providers and charges under new guidance from the U.S. Department of Labor, U.S. Department of the Treasury, and the U.S. Department of Health and Human Services.
Recently, the United States General Accounting Office (GAO), which is a nonpartisan agency in the legislative branch, took on oversight of the executive branch agency, Occupational Safety and Health Administration (OSHA). In this case, the GAO is making recommendations that OSHA take actions to protect meat and poultry workers from COVID-19 (though the actual recommendations relate to infectious diseases as a whole).
On June 29, 2023, Governor Ned Lamont signed Public Act No. 23-97, amending Connecticut’s noncompete law for physicians and implementing restrictions on noncompete agreements entered into with physician assistants and advanced practice registered nurses. The act has an effective date of July 1, 2023, but most of the material changes do not become effective until October 1, 2023.
Tennessee has permanently extended its COVID-19 statute under an enactment that removed the sunset provision of the state’s COVID-19 statute, which was set to expire on July 1, 2023.
The state of Texas that has developed a workplace violence prevention standard for healthcare settings. When signed into law, Senate Bill (SB) 240, aimed at reducing acts of workplace violence directed against healthcare providers, will require each health facility to adopt a written workplace violence prevention policy and plan by September 1, 2024.
Violating the Sherman Antitrust Act can result in criminal charges, not just civil liability. A criminal prosecution brought by the U.S. Department of Justice last fall is illustrative. The case also reflects a renewed, bipartisan effort at the federal level to crack down on non-compete agreements.
On May 1, 2023, the Biden administration announced that it would be ending all of its various COVID-19 vaccination requirements on May 11, 2023, the same date as the COVID-19 national emergency and public health emergency will end, according to the U.S. Centers for Disease Control and Prevention (CDC)). The U.S. Department of Health and Human Services (HHS) has begun the process to terminate the Centers for Medicare and Medicaid Services’s (CMS) interim final rule requiring CMS-certified healthcare facilities to implement and enforce a policy that all covered staff within their covered facilities be vaccinated against COVID-19.
The Occupational Safety and Health Administration (OSHA) recently took a major first step toward developing its anticipated standard regarding violence in the healthcare setting, titled “Prevention of Workplace Violence in Healthcare and Social Assistance.” On March 1, 2023, OSHA convened a Small Business Advocacy Review (SBAR) panel—an initial step in formulating a new standard that gives representatives of small businesses and small local government entities an opportunity for input.
Ogletree Deakins recently launched its OSHA Tracker, which compiles and filters inspection and citation data by Occupational Safety and Health Administration (OSHA) region, state, city, industry, and date. Employers in Region 4—covering Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee—may find the trends and, in some cases, surprises, among OSHA’s inspections, citations, and penalties data useful in planning and implementing their workplace safety programs.
A federal judge in Illinois recently ruled that online shoppers cannot sustain claims that a virtual try-on (VTO) tool that allegedly scans facial geometry to preview the look of sunglasses on their face violates the Biometric Information Privacy Act (BIPA or Privacy Act) because it falls into an exemption for “information captured from a patient in a health care setting.”
On March 15, 2023, in a case of first impression, the United States Court of Appeals for the Third Circuit held that paid time off is not part of an employee’s salary. Therefore, the employer did not compromise employees’ exempt status under the Fair Labor Standards Act when it reduced their accumulated PTO for failing to meet performance objectives.
Workplace violence is a serious concern for California employers in all industries, but the state’s workplace violence prevention regulations are currently applicable only to the healthcare industry. A bill recently introduced in the California Legislature would require the state’s occupational safety and health regulator to broaden the scope of workplace violence prevention regulations.
The Occupational Safety and Health Administration (OSHA) has identified violence in healthcare settings as a significant occupational risk, and a new workplace violence standard for the healthcare industry could be on the horizon.
Connecticut, Indiana, New York, Rhode Island, and Utah are among the latest states to propose further limitations on the use of post-employment restrictive covenants. Connecticut’s House Bill (HB) 6594 and New York’s Senate Bill (S) 3100 would prohibit the use of noncompetes with a wide swath of employees and independent contractors. Indiana’s Senate Bill (SB) 7, Rhode Island’s House Bill (H) 5284, and Utah’s Senate Bill (SB) 170 are more narrow and would only prohibit the use of noncompetes for certain medical professionals.
On February 7, 2023, the Indiana Senate passed a bill to outright ban noncompete agreements between doctors and their healthcare provider employers, though with an amendment to remove restrictions on referral incentives.
On January 17, 2023, a New York trial court judge struck down the state’s vaccine mandate for healthcare workers, ruling that the New York State Department of Health (DOH) acted outside its authority and noting that “the COVID-19 shots do not prevent transmission.”
The Occupational Safety and Health Administration’s (OSHA) COVID-19 rulemaking process has been quiet for a while, but recent activity appears to indicate we are now entering the final phase of a permanent COVID-19 standard for healthcare.
On December 9, 2022, a federal judge in Montana permanently blocked enforcement in healthcare settings of a first-in-the-nation law that had prohibited discrimination in employment and the provision of services based on vaccination status—including vaccination against COVID-19—finding the law is unconstitutional and preempted by federal law.
The Occupational Safety and Health Administration’s (OSHA) bloodborne pathogens standard, 29 C.F.R. § 1910.1030, requires employers having employees with “occupational exposure to blood or other potentially infectious materials” to develop written exposure control plans designed to eliminate or minimize employee exposure.
On October 14, 2022, California Department of Public Health (CDPH) Director Tomás J. Aragόn issued a State Public Health Officer Order further clarifying the definitions of “close contact” and “infectious period” to provide entities and individuals with strategies for working together in a post-COVID-19 workplace.
The White House, on October 4, 2022, unveiled its “ Blueprint for an AI Bill of Rights ,” outlining non-binding recommendations for the design, use, and deployment of artificial intelligence (AI) and automated systems when such tools are used in ways that affect individual’s rights, opportunities, or access to critical resources or services.
On September 13, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) issued guidance regarding protection of workers from monkeypox (MPX) under the Aerosol Transmissible Disease (ATD) Standard, California Code of Regulations, Title 8 Section 5199.
On August 26, 2022, Chief U.S. District Judge Matthew Brann for the United States District Court for the Middle District of Pennsylvania dismissed a putative class action representing approximately 100 healthcare company employees brought against their employer, Geisinger Clinic. In the suit, the employees challenged their employer’s policy requiring employees to either be vaccinated for COVID-19 or agree to regular testing and quarantining. In dismissing the complaint, the court rejected the employees’ religious discrimination, constitutional, and state law claims, calling the employees’ evidence “a collection of distorted statements and anti-vaccine hocus-pocus.”
On September 28, 2022, amendments to Oregon’s Equal Pay Act excluding hiring and retention bonuses from the definition of “compensation” are set to expire.
After more than two years of delay and amendment, the District of Columbia’s Ban on Non-Compete Agreements Amendment Act of 2020, which was introduced in the pre-pandemic days of 2020, will finally take legal effect on October 1, 2022. Efforts to amend the 2020 act culminated in the Non-Compete Clarification Amendment Act of 2022 (D.C. Act 24-526), which Mayor Muriel Bowser signed into law on July 27, 2022.
With little press coverage, Illinois just amended the Nurse Agency Licensing Act (House Bill (HB) 4666) to prohibit noncompete agreements between nurse staffing agencies and nurses or certified nursing assistants (CNAs) and impose additional reporting requirements.